Obama’s Operation Choke Point And The New American Legal System

Andrew Langer President, Institute for Liberty
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Recently social media was ablaze with the news that adult entertainer, Teagan Presley, had received word from Chase Bank that they were closing her account.  Presley had just become the latest law-abiding citizen to be swept up in “Operation Choke Point,” an joint effort by the Departments of Justice, Treasury and a handful of other agencies to effectively shut-down industries that the federal government doesn’t like.  Here’s the catch – they have no legal authority to shutter them and most of the victims of this overreach are losing their banking relationships even though they’ve done nothing wrong.

Targeting the adult entertainment industry may have been a gross tactical error on the part of the federal government. Until now, Operation Choke Point had been focusing on easy targets: short-term lenders, check cashing businesses, and online ammunition sales. All of those are legal industries, but the attacks garnered little public attention and therefore even less sympathy. Not so when it comes to the adult entertainment industry.

Regardless of where you are on the ideological spectrum, Operation Choke Point should greatly disturb you. You may not like payday lenders, pornography, or guns and ammunition, but it should worry anyone that the power of the federal government could operate in a manner that circumvents due process and is exercised with almost no accountability.

Operation Choke Point works like this: the inter-agency group selects an industry target, let’s say, an at-home business that sells cosmetics. Agents working on Operation Choke Point then contact the financial institutions where these entrepreneurs both have their bank accounts and process their payments, informing them that the federal government considers this industry “risky” and potentially  “fraudulent.” The government then “encourages” these financial institutions to cease doing business with individuals within that industry, which are mostly independent small business owners. If the financial institution does not cease doing business with them, then the full weight of federal regulatory power (DOJ, Treasury, FDIC, CFPB) will be brought to bear on the bank or payment processor.

Not wanting to be buried under red tape, these financial institutions then close bank accounts and refuse to process credit card payments for the business even if no impropriety has ever been alleged by any agency or legal entity. The end result is that the flow of cash to and from these businesses is “choked off” and the business dies. Whole industries can be destroyed using this method.

This is the new American judicial system. No need for cumbersome new legislation or regulations. No need for a public debate on the merits, or an accounting of the impact of this operation through the normal regulatory processes. The federal government merely pushes a button and these businesses are destroyed.

This is especially troubling when the industries at issue have had their right to exist debated in both legislative and judicial arenas—and their rights have been upheld by the courts.

Whether it is the First Amendment and pornography or the Second Amendment and firearms and ammunition, Operation Choke Point circumvents the Constitution’s protections. But perhaps you don’t care about porn, guns, payday lenders, or any of the current targets of Operation Choke Point. In that case, what ought to be of deep and abiding concern is the lasting legacy — the precedent that creates a new reality for all of us.

If Operation Choke Point is allowed to grow unchallenged, then no industry is safe from an administration, Republican or Democrat, that has decided to support that industry’s destruction but doesn’t want to go to the trouble of the legal or legislative process.

So you may not like short-term lenders, but perhaps you are in favor of marijuana legalization. If Operation Choke Point stands, there is nothing to prevent the targeting of legal dispensaries and growing operations having their bank accounts canceled or payment processing shut down.

Should this extra-legal process go unabated, there is nothing that would prevent, for instance, the targeting of businesses that provide materials for home school education. There is no reason why an administration with this power would hesitate to use it to promote a particular ideology or special interests in the financial services or energy sectors. In fact, it’s already happening.

Liberty is derived from the diffusion of sovereign power — power that must be balanced and checked and limited. Operation Choke Point is vast and unbridled power, hurting real people and their ability to make a living. No matter where you stand, progressive or conservative, you should be deeply concerned about the legacy of Operation Choke Point, and should be calling for its cessation immediately.