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  1. Standard member Soothfast
    0,1,1,2,3,5,8,13,21,
    11 Mar '17 00:05
    If a constitutional amendment was deemed necessary to ban alcohol sales throughout the US almost a century ago, by what legal argument does the current federal government have the authority to ban the production, possession and sale of marijuana within the borders of a state whose laws permit it?
  2. Standard member HandyAndy
    Non sum qualis eram
    11 Mar '17 00:28
    Originally posted by Soothfast
    If a constitutional amendment was deemed necessary to ban alcohol sales throughout the US almost a century ago, by what legal argument does the current federal government have the authority to ban the production, possession and sale of marijuana within the borders of a state whose laws permit it?
    The Supremacy Clause (in Article VI of the Constitution) applies where federal and state laws disagree. Federal preempts state.
  3. 11 Mar '17 00:37
    Here is a good article written by Hugh Hewitt

    There is a deep divide in the United States, and it isn’t blue-red or liberal-conservative. It’s between those who believe in applying the law as it exists and those who think they have the right — through various government authorities — to ignore laws they don’t like.

    “Rule of law” conservatives are a subset of the coalition that elected President Trump. They were concerned about the vacancy on the Supreme Court (and a hundred federal bench vacancies below it); executive orders and regulations that greatly overreached existing statutory authority; and the general idea — spreading like kudzu — that dulyenacted laws can be ignored by federal, state and local officials when inconvenient to the perceived “will of the people.”

    They were concerned, in other words, about preserving constitutional government.

    Sanctuary cities and marijuana legalization statutes are examples of local and state governments ignoring federal law. But federal authorities and elected officials who vent about those subjects should look to their own disregard of the law. Two recent instances of the lawlessness of Beltway elites concern the U.S.-Mexico border barrier and the Export-Import Bank of the United StateThe Secure Fence Act of 2006 called for the construction of 700 miles of barriers along the U.S.-Mexico border. Not even the most shameless sophist will argue that anything like that happened. Far fewer than even 100 miles of high fencing followed. The feds did lay down vehicle barriers and counted those as “miles” toward compliance, but it’s laughable to contend that the law was implemented in any meaningful way.

    Then there is Ex-Im. A small slice of conservatives — the sort who enjoy “Hayek/von Mises” cruises on the Danube — hate the bank with a passion. Most ordinary Americans don’t know what Ex-Im is, while most of those who do say that of course the U.S. government should use “export credits” — subsidies — to favor U.S. companies fighting for international business against foreign competitors backed by their own governments’ subsidies. Ex-Im levels a lopsided international trading field. It operated for decades — in the black, without controversy — until purists decided they needed a ritual sacrifice to the Austrian school. They fought hard to kill Ex-Im. Fine. That’s their right. But they lost. And it wasn’t close.

    Congress and President Barack Obama reauthorized the bank. In 2015, a House supermajority voted to fully fund Ex-Im after a broad, bipartisan coalition broke the blockade of the true believers. In the Senate, the vote was 64 to 29 in favor.

    Did the bank then spring back into action and fund the long line of credit guarantees for U.S. companies waiting for approval? Nope. About 40 transactions, worth $30 billion in U.S. products, are stuck in limbo because anti-Ex-Im dead-enders have blocked the bank’s board from getting the quorum of confirmed members. Without this quorum, transactions of more than $10 million cannot move forward. Thousands of U.S. jobs are imperiled by this lawless obstructionism.

    Last year, Senate Banking Committee Chairman Richard Shelby (R-Ala.) refused to allow the committee to consider confirmation of two pending nominees — one Republican and one Democrat — needed for a quorum. This year, three spots need to be filled. Ex-Im is the law, but as with the border fence, sanctuary cities, and states purporting to legalize marijuana, the law is being ignored. In each case the storyline is the same: Do we respect our constitutional forms, and the laws those forms produce, or do we get to pick and choose?

    Consistency is key. Ex-Im should get its board, the fence should get built, and state and local governments should obey federal law on every subject. (It is not called the “supremacy clause” of the Constitution for nothing.) You can’t call yourself a conservative if you don’t stand with the Constitution over your personal preferences. I’m not sure you can even brand yourself a good citizen if you view the laws of the land like choices on a menu.


    Federal Reserve Chair Janet Yellen says the Fed is set to raise its benchmark interest rate later this month as long as economic data on jobs and inflation holds up. (Reuters)

    The president has again and again drawn the ire of media elites after speaking on controversial topics. In many of these instances — and especially with regard to immigration issues and national security leaks — he is referencing an underlying lawlessness that the public perceives and resents. Social instability is inevitable when protected classes and individuals operate under a separate set of rules than those that apply to everyone else.




    The answer, of course, is to apply the federal law as passed — in every case — and for the president and the Justice Department to insist on it. As for defenders of sanctuary cities, Ex-Im plotters, marijuana defenders and border-fence foes, they should ask themselves: Do we really want government, at any level, to pick and choose which of the Constitution’s provisions will apply today?

    That way lies arbitrary application of law. Once the law is whatever any authority says it is, the result is chaos. Let’s stick with the Constitution. It has worked since 1789.
  4. Standard member Soothfast
    0,1,1,2,3,5,8,13,21,
    11 Mar '17 01:05 / 1 edit
    Originally posted by HandyAndy
    The Supremacy Clause (in Article VI of the Constitution) applies where federal and state laws disagree. Federal preempts state.
    The attitude a century ago, though, seems to be different. Specifically, a prohibition against alcohol that is similar in practice to today's federal prohibition against marijuana was effected with an amendment rather than a mere law. Why not simply pass a law through Congress that banned alcohol? Why go so far as to append an amendment to the Constitution? By way of an answer, I found recently this:
    A constitutional amendment was necessary to criminally prohibit alcohol commerce because all commerce is subject to regulation under equity, not to prohibition under law. The Interstate Commerce Clause says Congress has power to regulate commerce, not criminally prohibit it. The Supreme Court in Ohio v. Helvering said the police power with regard to businesses (commerce) is regulatory.
  5. Standard member Soothfast
    0,1,1,2,3,5,8,13,21,
    11 Mar '17 01:15
    Originally posted by whodey
    Here is a good article written by Hugh Hewitt

    There is a deep divide in the United States, and it isn’t blue-red or liberal-conservative. It’s between those who believe in applying the law as it exists and those who think they have the right — through various government authorities — to ignore laws they don’t like.

    “Rule of law” conservatives are a subs ...[text shortened]... ty says it is, the result is chaos. Let’s stick with the Constitution. It has worked since 1789.
    Well, that's kind of interesting, but what of it? How's it relevant here?
  6. Subscriber karoly aczel
    Fortnite Kid
    11 Mar '17 01:18
    Originally posted by Soothfast
    If a constitutional amendment was deemed necessary to ban alcohol sales throughout the US almost a century ago, by what legal argument does the current federal government have the authority to ban the production, possession and sale of marijuana within the borders of a state whose laws permit it?
    It was never about weed but hemp.
    Hemp was an alternative to cotton and gaining, co the cotton industry made it illegal and demonized it (through things like "reefer madness" )
  7. Subscriber karoly aczel
    Fortnite Kid
    11 Mar '17 01:21
    Originally posted by whodey
    Here is a good article written by Hugh Hewitt

    There is a deep divide in the United States, and it isn’t blue-red or liberal-conservative. It’s between those who believe in applying the law as it exists and those who think they have the right — through various government authorities — to ignore laws they don’t like.

    “Rule of law” conservatives are a subs ...[text shortened]... ty says it is, the result is chaos. Let’s stick with the Constitution. It has worked since 1789.
    The constitution, like the bible, has it's interpretations.
    Again it comes back to 'getting in the spirit ' of the law.
    This is highly underrated and, in fact, the real way the world works- on backroom handshakes based on faith in the person you shake hands with
  8. 11 Mar '17 03:04
    Originally posted by Soothfast
    Well, that's kind of interesting, but what of it? How's it relevant here?
    It shows that laws only matter in terms of whether or not there is a will to enforce them

    More and more the US has become a nation of men rather than laws.
  9. Subscriber no1marauder
    It's Nice to Be Nice
    11 Mar '17 04:25 / 1 edit
    Originally posted by Soothfast
    The attitude a century ago, though, seems to be different. Specifically, a prohibition against alcohol that is similar in practice to today's federal prohibition against marijuana was effected with an amendment rather than a mere law. Why not simply pass a law through Congress that banned alcohol? Why go so far as to append an amendment to the Constitut ...[text shortened]... o v. Helvering said the police power with regard to businesses (commerce) is regulatory.[/quote]
    I don't know where you are quoting from but that seems an odd reading of Ohio v. Helvering. In that case, the State of Ohio wanted to go into business as the exclusive distributor and seller of intoxicating liquors but claimed it was exempt from a federal tax on liquor dealers based on a "States rights" argument (Helvering was the IRS Commissioner). The SCOTUS rejected that claim stating:

    When a state enters the market place seeking customers it divests itself of its quasi sovereignty pro tanto, and takes on the character of a trader, so far, at least, as the taxing power of the federal government is concerned.

    https://en.wikisource.org/wiki/Ohio_v._Helvering/Opinion_of_the_Court
  10. Standard member shavixmir
    Guppy poo
    11 Mar '17 06:41
    Originally posted by Soothfast
    If a constitutional amendment was deemed necessary to ban alcohol sales throughout the US almost a century ago, by what legal argument does the current federal government have the authority to ban the production, possession and sale of marijuana within the borders of a state whose laws permit it?
    You're not telling me Trump is gonna clamp down on Las Vegas marijuana are you???

    That would be a major bummer.
  11. Standard member Soothfast
    0,1,1,2,3,5,8,13,21,
    11 Mar '17 07:00
    Originally posted by no1marauder
    I don't know where you are quoting from but that seems an odd reading of Ohio v. Helvering. In that case, the State of Ohio wanted to go into business as the exclusive distributor and seller of intoxicating liquors but claimed it was exempt from a federal tax on liquor dealers based on a "States rights" argument (Helvering was the IRS Commissioner ...[text shortened]... overnment is concerned.

    https://en.wikisource.org/wiki/Ohio_v._Helvering/Opinion_of_the_Court
    Oh, the quote was from some comments section of a site somewhere. In any case, would you say it was necessary to pass a constitutional amendment to ban alcohol, or would a federal law have been sufficient? I suppose it all might just boil down to a matter of interpretation: the difference between today's interpretation of what the federal government can constitutionally do, and the interpretation of a century ago.
  12. Standard member Soothfast
    0,1,1,2,3,5,8,13,21,
    11 Mar '17 07:08
    Originally posted by shavixmir
    You're not telling me Trump is gonna clamp down on Las Vegas marijuana are you???

    That would be a major bummer.
    I'm guessing not. His goon Jeff Sessions (attorney general) is already in hot water over lying through his teeth before Congress. Yep: something to do with Russians again.
  13. Subscriber no1marauder
    It's Nice to Be Nice
    11 Mar '17 08:31 / 1 edit
    Originally posted by Soothfast
    Oh, the quote was from some comments section of a site somewhere. In any case, would you say it was necessary to pass a constitutional amendment to ban alcohol, or would a federal law have been sufficient? I suppose it all might just boil down to a matter of interpretation: the difference between today's interpretation of what the federal government can constitutionally do, and the interpretation of a century ago.
    I think it could be though at the time there was good reason to think that the SCOTUS might have struck down such a law. See US v. E.C. Knight, an 1895 case which held that manufacturing was a "local" activity which could not be regulated by the Federal government.https://en.wikipedia.org/wiki/United_States_v._E._C._Knight_Co.

    As that article points out, such a view was subsequently abandoned and Harlan's dissent view that "the Constitution gives Congress "authority to enact all laws necessary and proper" to regulate commerce" was adopted. In the 2005 case of Gonzales v. Reich the Court specifically affirmed that the Commerce Clause gives the Congress the power to criminalize production and use of homegrown cannabis even in those States where local laws permit it.https://en.wikipedia.org/wiki/Gonzales_v._Raich

    Hope that helps.
  14. Standard member Soothfast
    0,1,1,2,3,5,8,13,21,
    11 Mar '17 22:00
    Originally posted by no1marauder
    I think it could be though at the time there was good reason to think that the SCOTUS might have struck down such a law. See US v. E.C. Knight, an 1895 case which held that manufacturing was a "local" activity which could not be regulated by the Federal government.https://en.wikipedia.org/wiki/United_States_v._E._C._Knight_Co.

    As that article p ...[text shortened]... s where local laws permit it.https://en.wikipedia.org/wiki/Gonzales_v._Raich

    Hope that helps.
    Yeah, that might help -- I'll look into it, as that last case is quite recent.
  15. Standard member sh76
    Civis Americanus Sum
    12 Mar '17 04:22 / 1 edit
    Originally posted by Soothfast
    If a constitutional amendment was deemed necessary to ban alcohol sales throughout the US almost a century ago, by what legal argument does the current federal government have the authority to ban the production, possession and sale of marijuana within the borders of a state whose laws permit it?
    I'm pretty confident that a nationwide alcohol ban would be considered within Congress' power, probably since Wickard v. Filburn in 1934 IIRC and certainly under Raich. The commerce clause was interpreted much more narrowly before then. That's the only reason the 18th amendment was necessary as far as I can tell.

    It's also possible that an alcohol ban would have been overturned on due process grounds under Lochner (sorry, I'm on my phone and it's a pain to get links to cite, but you can Google it) though that would not be true today.