Some 50,000 Americans who call themselves Ancient Coin Collectors are hopeful that February 12, 2013 will be remembered by numismatic historians as an auspicious day. Washington bureaucracy broke with law and tradition in 2007 by imposing draconian import restrictions on ordinary coins that are freely and routinely exchanged and collected worldwide, say coin collecting advocates in filed court documents. Under these restrictions, American collectors are now subjected to requirements that they claim are impossible to meet and are extralegal on several counts. “Congress limited restrictions to culturally significant artifacts found in a specific country, but now Americans importing common coins made in a specific country are forced to prove the negative—that their coins have not illegally exited a specified country subsequent to the signing of a bi-lateral agreement between that nation and the United States,” explains Counsel of Record Peter K. Tompa.
Since coins have flowed endlessly across national boundaries, without documentation, for more than two thousand years, collectors argue that it is impossible to say with certainty where any given specimen has been during that time. Literally millions of very common and low value ancient coins lack specific pedigrees of ownership or "provenance" and consequently cannot satisfy the burden of proving a negative. Are these coins all, by default, illicit because it is impossible to say where they were found in modern times? “Not at all,” say collectors who point to a 600-year-old legitimate market that has witnessed a constant and massive flow of ancient coins from every conceivable source country. Many feel that a presumption of guilt has trumped the venerable presumption of innocence that Americans hold dear. Law enforcement agencies in some third-world countries, and even more prosperous nations, are sometimes unable or unwilling to enforce their own nationalistic cultural property laws. As a result, some objects of ‘national patrimony’ eventually find their way to foreign markets. Under U.S. law, foreign nations may in exceptional cases appeal to the U.S. State Department for emergency assistance through import restrictions. However, a collector group’s lawsuit complains of bureaucratic overkill, where the State Department has reacted capriciously by creating what amounts to broad barriers to trade in all undocumented objects, both licit and illicit, significant and insignificant, that they arbitrarily designate as cultural property at risk. That, collectors feel, is extralegal and ignores the plain language of the law.
By importing a group of unprovenanced Cypriot and Chinese coins from a British dealer in 2009, the non-profit Ancient Coin Collectors Guild (ACCG) set in motion a test case before the U.S. District Court at Baltimore, Maryland to challenge the State Department’s interpretation of law and their actions. After lengthy hearings and deliberation, a trial court dismissed the case claiming that the issue was not one for the courts to decide. Disagreeing with this view, the ACCG appealed that decision to the 4th Circuit Court of Appeals where ultimately the lower court ruling was affirmed. The essence of the ACCG argument is that the governing law does not give unbridled authority and discretion to the President’s representative in the State Department, particularly when another agency, U.S. Customs, is ultimately responsible for the final regulations. They argue that the court should say what the law is and judge whether its provisions were followed in the process of imposing the restrictions being challenged. After almost four years of litigation, no lower court has been willing to take that stand.
Meanwhile, the case has grown from a rather provincial test of bureaucratic agency decision-making to something of far greater consequence. Does the Executive Branch inherit absolute discretion when Congress gives it oversight authority? Even when there are limits and conditions established in the governing legislation? This question has now been posed by Ancient Coin Collectors to the United States Supreme Court in a Petition for a Writ of Certiorari. The potential ramifications are significant and extend well beyond the world of coin collecting. A decision on this question could well set the bar for presidential discretion for years to come. From small acorns do mighty oaks grow.