Bad Seed

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The Drug Enforcement Administration has finalized its ban on edible hemp products, which is scheduled to take effect on April 21. The policy, based on a misreading of the Controlled Substances Act , is an act of senseless anti-drug zealotry. The trace levels of THC in hemp products are too low to be psychoactive or even to trigger a positive urinalysis result in any but the most extreme cases. But because the DEA doesn't like pot smokers, I can't buy hemp seed granola anymore. This is like cracking down on heroin by banning poppy seed bagels.

The Hemp Industries Association has challenged the DEA's ban in federal court, and it may prevail. Last year the U.S. Court of Appeals for the 9th Circuit issued a stay preventing an earlier version of the ban from taking effect until a ruling on its validity. The decision to issue the stay suggests the court saw at least some merit in the industry's case.

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  1. Another interesting case involves Article 11 of NAFTA. That article serves as a Takings Clause among NAFTA member countries, allowing investors from one member country to seek arbitration for regulatory takings when another member country “expropriate[s] an investment…or take a measure tantamount to nationalization or expropriation.”

    So far several investors have successfully received compensation from governments which have enacted laws depriving investors of their property. In a case filed in January of last year, Kenex v. United States, a Canadian company is seeking arbitration because of DEA rules prohibiting the shipment of hemp-based products such as shampoos, purses, and so forth. More information at http://www.naftalaw.org. (Click on “disputes” on the left, then “USA” then “Kenex”).

  2. Along the lines of Tim’s post, there MAY be another avenue for legal action. In oral arguments in the Texas Sodomy case currently in the Supreme Court, the defendant’s counsel have emphasized that the state must show actual harm from conduct that the law bans (if the law conflicts with Equal Protection). Wouldn’t a suit brought by a hemp granola company that pointed out that the competition (poppy-seed bagels) benefits from unequal protection at least force the state to try and prove actual harm from ingesting hemp seeds? Sure, a few on the supreme court wouldn’t care, just as they don’t in the sodomy case. But I think a majority, faced with the evidence you site (assuming it’s all true), would side with the poor granola manufacturer.
    I know nothing about the law, so there’s probably some reason companies can’t sue for equal protection-type claims…

  3. hey Tim!

    nice to chat with you through hit and run!

    how will differing hemp/pot laws in mexico or canada affect nafta? are there “downsides” (in terms of the US gov’t) above and beyond these? or would canada get bugged about some way of using second ammendment rights to produce guns to be sold in canada or anything else?

    cheers and, you guessed it: “happy friday”,
    drf

  4. Re: Marc Webster’s post–the equal protection clause when invoked in challenging socioeconomic or health and safety policy is only very rarely successful. Most equal protection claims, to be successful, need to involve what the Supreme Court calls a suspect classification, the paramount example being race. The Court applies only its lowest level of scrutiny, rational basis review, to claims such as “this law treats my company differently from the competition,” however sensible and true they are–the basic idea is that the remedy for bad economic policy is in the legislature and that business interests don’t need the courts to protect them. The plaintiffs in the Texas sodomy-law case are, among other things, trying to get the Court to explicitly recognize sexual orientation as a suspect class. I hope this brief review of a huge consitutional law topic is helpful.

  5. Hey! Sullum! Stop giving the DEA ideas! I happen to like poppy seeds and will be coming after you, sir, with the proverbial baseball-bat-with-a-nail-in-it if I find out the feds are moving to outlaw poppy bagels, poppy seed danish, poppy seed pirozhki, lemon-poppy muffins or poppy hamantaschen.

    Mmmmmmm, poppy hamantaschen.

  6. When will anybody take the Constitutionality of the Controlled Substances Act, head-on? In 30+ years, I have NEVER SEEN any coherent argument that lays out why this act is within constitutional federal authority. Has anyone here? On the other hand, I have seen numerous doubts, and more than a few well-reasoned denials of the constitutionality.

    The federal power to regulate has never included the power to prohibit outright. This has been established over and over again. The federal power to regulate interstate commerce is properly understood as an way of promoting and facilitating trade among states, not restricting or prohibiting it. This is nothing but common sense that flows from the plain language of the constitution, not to mention a couple of centuries of practical experience.

    I have diminishing patience with all the hand-wringing and genuflecting that goes on in this matter. Is the only reason that the Act has not been challenged and struck down, or the DEA not muzzled (or dismantled!) because people have been hypnotized for 30 years?

    Something must be done to break the spell. What, when, and where do I sign up?

  7. Re James Merritt’s comment:
    Actually, the power of Congress to prohibit commerce altogether through the commerce clause has been well established in constitutional law for more than a century. And it was almost certainly envisioned by more than a few of the Framers of the Constitution, though none would have dreamed of the complex regulatory state we have today; and though we may not like it, see my last post on this topic, it’s here to stay. Use your First Amendment rights to petition Congress for a redress of your grievances–constitutional arguments on this score just won’t help you in the courts.

  8. Okay, if they needed a constitutional amendment to ban alcohol, then why don’t they need one to ban pot? Where in the constitution does it give the feds these rights? Shouldnt those rights stay with the states or the people as the ninth (or is it tenth…I’m a little fuzzy today) ammendment states?

  9. I believe you’ve got it backwards, Thales, on the Commerce Clause. The whole point of that was to give the Feds some power in stopping States from making arbitrary rules (like tariffs) that would slow interstate commerce.

    The clause has been used and abused like a bag of 10-week old crack (or whatever it comes in, hell, I wouldn’t know!).

    Regarding James Merritt’s post, I totally agree with you. I think either no administration has the guts to bring up a case, or they want to wait for some real Justices to join up (besides Mr. Scalia, who usually actually follows the Constitution) before they do that.

  10. Thales, please explain your claim with a bit more detail. The history I have read indicates that the prohibition amendment was necessary precisely because there was no established federal power to prohibit under the interstate commerce clause. And, as that amendment was repealed, there is no more authority, either to control food or drugs, or to prohibit commerce under color of regulating it, than existed in the constitution before prohibition.

    Down through the centuries, jurists have argued that the powers of the government are bound by common sense construction. More importantly, the constitution itself contains, in the ninth and tenth amendments, explicit limits on the federal government’s ability to construe the scope and meaning of its own powers. The fact that these limits have often been flouted, and not yet adequately challenged in the courts, does not mean that they do not exist, and will not ultimately be acknowledged. That’s why I think the cannabis cases need to go to the Supreme Court. It may not be that the Constitution protects the right to eat non-approved foods or do drugs, for instance, but on the other hand, it seems almost certain that the federal government has no proper authority to intervene prohibitively in such matters, and that any tougher control over food or drugs is the job of the States.

  11. James and others, I agree in principle that free commerce is a good thing, and most historical evidence indicates that the primary historical purpose of the commerce and related clauses was to create a uniform system of free trade (prevent tariffs and such that inhibited the flow of goods among the states).
    However, it would be difficult to claim that the Framers wholeheartedly endorsed trade liberalism: No economist until David Ricardo, about 50 years after the Constitution was framed, had fully articulated the virtues of free trade. Moreover, the Framers had a civic republican streak, in addition to a libertarian one, and so some/most them would have seen regulation that benefitted everyone morally or in terms of health and safety as permissible, although they would have drawn a firmer line between intra- and interstate commerce than does the modern Supreme Court. It would be ahistorical to assert that the Constitution is a wholly libertarian document (and I assure you, Justice Scalia believes it is not–a casual read of his opinions will confirm this)–the principle that state governments may regulate intrastate commerce for reasons of health and safety, or morals, is well established–it is often referred to as the police power. But the principle that the federal government may do the same with items in interstate commerce has been around since at least 1903, with Champion v. Ames (the interstate transport of lottery tickets may be banned), and there are hints of this principle much earlier, in many of John Marshall’s opinions interpreting the commerce clause, e.g., Gibbons v. Ogden (1824). The federalism issues raised by the 9th and 10th Amendments do indeed put constraints on the reach of powers that Congress isn’t explicitly granted, but the commerce power is incredibly broad. Traffic in hemp seeds and narcotic drugs indisputably exists in interstate commerce, and there is a least a rational, even if ultimately bad argument, that banning them would promote the general welfare. No lawyer would attempt to argue otherwise today.

  12. A few last things–1)a common problem among our crowd, that is, libertarians, is the argument that reasons as follows: This is a bad idea/a policy that harms my interests. It therefore must be unconstitutional. But the argument just isn’t sound, as a matter of constitutional text, history, law, political reality, or valid as a matter of plain logic.
    2)Amendments to the constution, such as the 18th, don’t necessarily prove the government power (or the reservation of a right) wasn’t present before the amendment. Rather, they show only that an argument may persist either way, and in the case of prohibition, that forestalling litigation was one ambition of those whose goal was to ban alcohol. The 18th amendment also served the purpose of banning intrastate liquor manufacture, importation, etc., and section 2 of the 18th gives Congress and the states concurrent power to enforce it–so it wasn’t just an interstate commerce issue, but a modification of federalism principles as well. I hope this clarifies things for the people that I confused with my previous posts.

  13. Thanks for the citations, Thales. After my previous posting here, I did indeed crack open my copy of the Oxford Supreme Court Companion. After a bit of old-fashioned searching, I found much the same material you cited; I was in the process of digging up the older opinions to see what they actually say on the topic, when I pulled up your recent comments. I have to tell you, what I have seen of the opinions so far looks fairly flimsy in terms of reasoning, although it of course carries the weight and cachet of supreme court pronouncements. It does indeed appear, however, that the theory of the commerce clause as justification only to PROMOTE and PROTECT trade, not to quash or prohibit it, lasted from 1787 through 1903, despite the broad hints from Marshall, et. al., which you mention. That’s a good 116 years, and there were court tests along the way, so it’s not as if the theory were some wild and crazy libertarian concoction, with no historical or semantic basis for credibility. The theory of a federal police power, using the Commerce Clause as vehicle, was, at its introduction, a significant and controversial departure from the traditional interpretation of the Constitution. It clearly began to gain traction in the 20th century, and really gathered speed in the 2nd half of the 20th century. One has to ask the question: are we better off for the “discovery” of this power? Might justices, reconsidering the question in the modern day, conclude that the “discovery” was in error, or that the power in question is much more narrow in scope and effect than has been assumed during the past few decades?

    It might make sense to say, for instance, that, as a last resort, the federal government has some kind of police power to prohibit that which poses a clear and present danger, to the extent that it is a component of interstate commerce and cannot be controlled via the state police power. I’ll grant that for sake of argument, even though I believe that to “regulate,” in the sense of the constitution’s text, means to “normalize,” “make predictable,” or “make regular,” NOT to exert complete (e.g., prohibitive) control. Even granting that the constitution may not explicitly rule out a federal police power, you should still have to establish the fact of the “clear and present danger” before using it. I can’t see that such a thing was ever done. What is more, we’ve had decades to see that the clear and present danger comes more from the nature of prohibition than from the thing prohibited. To assert, as the Controlled Substances Act does, that ALL drug commerce involves or affects interstate commerce enough to come under federal control, is just a lie. To establish a class of substances that — by political fiat alone — have “no medical value” is another lie. Basing law on obvious lies is dangerous and harmful, and even the Justices ought to see that.

    The unconstitutionality of the drug war may come not so much from what is or is not expressly stated in the Constitution, as from the war’s routine dependence upon and abuse of what might otherwise remain a narrow, rarely used, extreme, implied federal power. Said another way, even if you can draw a rhetorical line between the Constitution and some thing that is not expressly mentioned or provided for in the Constitution, if you have to stretch too far, it really isn’t Constitutional, because if you CAN stretch so far, then the 9th and 10th amendments provide little or no protection at all, yet we know that they were expressly included to provide SIGNIFICANT protection. We put up with several constitutional contortionist tricks in the 20th century, which flew in the face of plain language and common sense. The results have been bad for the country, I think.

  14. James, I agree with you in terms of what I would like a sound polity to do. I also agree that there is much in the 1787-1903 constitutional period to support your arguments, and less (although not a trivial amount) to support the direction the modern Court has taken. But the idea that the courts should now wipe the slate completely clean on the issue of the reach of the federal commerce power without some mandate from the people through the political branches of government is, well, pretty radical.

    I do agree that the war on drugs is absurd. Notice, though, that there would be little in the way of federal constitutional barriers to inhibit all 50 states from doing much the same thing (the dark side of the 9th and 10th amendments), even if the Congressional laws controlling drugs were eradicated. The war on drugs is bad, and maybe, as we’ve argued, of dubious constitutionality. But it is popular–you need to fight your primary battles on the field of public political opinion and public comprehension of science.

    Constitutional barriers that I *can* see being realistically helpful are the criminal procedure portions of the Bill of Rights and the original constitution. Certain (most?) methods of fighting drugs ought to run afoul of the 4th amendment and 5th amendment, and in the related realm of civil asset forfeiture, the takings and due process clauses dealing with arbitrary deprivation of property. So far, the Court has, with some exceptions (see for example Kyllo v. United States, 2000) been on the side of the drug warriors, precisely because it is the judgment of our people and politicians that drugs are harmful. But criminal procedure is a realm of constitutional law that is slightly more attuned to curbing government excess than the interpretation of federal commerce power.

    In short, you have to convince the people of your views before you can hope to win significant reform on this one, in my opinion.

  15. I read the Gibbons v. Ogden and Champion v. Ames opinions. The latter, discovering in 1903 (after 116 years!) that the Interstate Commerce clause also implied the power to prohibit commerce as well as promote it, passed 5-4; the dissent seems fairly persuasive, but the majority prevailed.

    The major product of Champion v. Ames just isn’t right, in my view, unless you agree that the meaning of “regulate” includes that of “prohibit.” It is this semantic shift that appears to have been the primary legacy of Champion. In Gibbons v. Ogden, Marshall goes on about how broad the federal commerce clause is, implying that the federal government was empowered to regulate commerce every which way but loose, unless it happened completely within a state, and didn’t affect or involve any other states. But he didn’t suggest that the meaning of “regulation” also included the meaning of “prohibition.” That wouldn’t happen for another 79 years, at a time when the sentiments for prohibition of sinful activities in the name of a single public morality, and for governmental activism in a large number of previously unexplored arenas, were running hot. Indeed, our modern notion of “regulate,” as meaning “exercise total legal control over” seems to owe a lot to the Champion decision. I can’t agree that this is what the word meant when the Commerce Clause was written. If a lot of precedent dominoes have to fall in order to acknowledge this error, then although I understand the immensity of the job, we need to start knocking those dominoes over, as soon as possible. The mischief that has been done because of that mistake is incalculable.

    Also, in Gibbons, Marshall is clear about limiting the Commerce Clause power to interstate matters, and specifically exempting commerce that occurs completely within a state, between citizens of that state. I think Marshall would have struck down the Controlled Substances Act based on its naked assertion that ALL drug traffic, whether INTRAstate or not, is necessarily covered by the INTERstate commerce power. You might just as well just declare in legislation that the Mormons aren’t a religion and thus not eligible for tax immunity or First Amendment protections. Passing a law that contravenes real-world facts doesn’t change the facts, whether in the Mormon case or the Controlled Substances case.

    I understand that there seems to be nothing preventing States from controlling food and drugs (except the constitutional provision against interstate import/export duties, I suppose). But I’m cool with fighting the battle in my state to ensure sane food and drug policy. Here in California and many other states, for medical marijuana, the policy is already approaching sanity — and food policy could soon follow-suit — if we could only get the federal authorities off our backs.

  16. The notion that Scalia would overturn commerce clause jurisprudence is flat out silly. He accepts like all the justices that _Heart of Atlanta v. US_ is the law of the land.

  17. The opinion for Heart of Atlanta vs. US is a really scary document, quite reasonable — even noble — in the way it expands federal power in the name of social fairness. This only goes to illustrate the folly of that old saw, “the end justifies the means.” As I read that decision, it seems like the right thing (anti-discrimination) done the wrong way (by establishing the notion of “places of public accommodation” that are subject to regulation under the Interstate Commerce Clause, thus broadening the scope of a constitutional “umbrella” that was already way too big). Still, even with its faults, this decision seems consistent with the apparent ORIGINAL intent of the commerce clause, i.e., to promote (and not diminish or prohibit) commerce! No commerce is being prohibited; it is in fact the refusal to engage in commerce that is being disallowed. I don’t like that commerce is being stimulated by virtue of altering people’s freedom to associate (or not associate) as they please, but State law had already stepped into that puddle. I’d bet that, had segregation not been enshrined into State law, that would have removed the impetus for most of the Civil Rights movement, or at least for the Acts of Congress and the complementary decisions of the federal judiciary, which sought to respond to that movement.

    The thing that I believe needs rethinking, and which doesn’t really threaten Heart of Atlanta vs. US or any number of other Commerce-based decisions, is the idea that the power to regulate includes the power to choke-off or prohibit. The words “regulate” and “prohibit” are used separately in the Constitution. I get the sense that they stood for concepts that the founders viewed as related, but still separate and distinct. I really can’t say I have a problem with the federal government stepping in to make interstate commerce regular and predictable, or to promote commerce among the states. But it seems to me a perversion of the Commerce power, for Congress to say, “no, you may simply not engage in this traffic or that,” or to pass laws and institute procedures that have the practical effect of prohibition. The commerce power seems misused when it is invoked to make a product or service illegal.

    Even worse, is when things are arbitrarily defined as being part of interstate commerce, subject to COMPLETE control under the Commerce Clause, when anyone with common sense knows that their “interstate” connection, if any at all, is tenuous and negligible. Medical marijuana, for example, which tends to be grown in local farms, dispensed to local patients, and never in any substantial way part of inter-regional, much less inter-state commerce. Yet the Controlled Substances Act goes out of its way to say that the government doesn’t care if everything is grown, processed, distributed, purchased, and used within the borders of a single state: Any traffic in controlled substances whatsoever is legally considered to be interstate commerce. What kind of sense does THAT make? And let’s not talk about related products, such as food-grade and industrial hemp, which cannot be proven scientifically to have any of the bad effects that are attributed to marijuana, but are banned anyway.

    If the law is to be respected, it must be respectable. The current law is crazy and is being treated as such by more and more citizens. How can disrespect for the law — a disrespect it has earned — be good for our country?

  18. hey all of you guys and little bitches are all fucked up. fuck the dea and all of the other fucks ok if you want to smoke pot i say go for it but it would be nice if it would be in a controled enviermant un like some of thoues stupid fuckers that smoke it and get in truble and get the rest of us fellow pot, hemp what ever you want to call it smokers.

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