Published: Mon, 24 Oct 2016 00:00:00 -0400
Last Build Date: Mon, 24 Oct 2016 15:27:49 -0400
Sat, 08 Oct 2016 07:31:00 -0400Earlier this week, in one of several related announcements, the USDA proudly declared that its MyPlate, MyState program, which the agency bills as "an effort to celebrate homegrown pride, foods and recipes and bring communities together around healthy eating," was entering a new phase. "Through MyPlate, MyState, USDA is working to make the connection between healthy eating and more than 160,000 farmers and ranchers nationwide that are selling into local markets through... farmers markets, farm stands and community supported agriculture (CSA) programs," reads an agency release the USDA emailed to me and others this week. You'd have to forgive some folks who sell their food at a small farmers market in Wyoming if this USDA self-promotion rings a bit hollow. That's because late last month, agents from the USDA's Food Safety Inspection Service (FSIS) showed up at a farmers market in Gillette, Wyoming, and ordered a food vendor at the market to destroy his food. Specifically, the FSIS agents ordered John Thompson, who makes Big John's Chili and sells it at the market, to dump out all of his jars of chicken green chili. Thompson complied, despite the fact the inspectors failed to respond to at least one request to identify themselves, and ordered at least one person at the farmers market who was taping the raid to cease filming, lest FSIS cite him for intimidating federal agents. What's the big deal with a guy selling jars of chili? In short, nothing. While details of the raid are still fuzzy, I'm not aware of any legal justification for the FSIS action. To be certain, if Thompson hadn't been selling the chili but had been donating it, or making it for friends to serve at home, or serving it at a church dinner, the USDA food-safety inspectors would never have gotten on their high horse and traveled (rumors say all the way from Colorado) to Wyoming. But because an impossibly small vendor decided to can and label the chili, it appears the USDA felt compelled to act. But that doesn't mean the agency had the authority to act. "In my opinion the FSIS didn't have the authority to inspect that food because it didn't involve interstate commerce," Wyoming State Rep. Tyler Lindholm told County 17, a local news site. He's right. While federal law doesn't empower FSIS to act as it did, it's also true that Wyoming state law protects Thompson's right to sell his chicken chili at a farmers market, thanks to the state's Food Freedom Act. State Rep. Lindholm knows a thing or two about the Wyoming Food Freedom Act. He co-sponsored the bi-partisan bill, which breezed through the state senate on its way to becoming law. It "allow[s] for the sale and consumption of homemade foods and to encourage the expansion of agricultural sales by farmers markets, ranches, farms and home based producers" who produce and sell food and drink agricultural products—including produce and poultry, but not pork, lamb, or beef—wholly within the state of Wyoming, and only for home consumption. The reason pork, lamb, and beef aren't sales aren't protected under the Wyoming law is that Congress, in the late1960s, prohibited the commercial sale of those meats unless they were processed in a USDA-inspected facility. In an older photo, one of the jars of Thompson's green chili appears to list pork as an ingredient. That could have raised agency red flags. Its sale wouldn't be protected under federal or state law. But the food the USDA forced Thompson to dispose of was chicken chili, not pork chili. I interviewed Lindholm in March 2015, shortly after the Food Freedom Act's passage. I also spoke with him this week. "Maybe they haven't read the Wyoming Food Freedom Act," Lindholm suggested in a video he posted on Facebook after learning of the recent USDA action. Lindholm is also perplexed by the agency's actions because they run counter to what the USDA told him as he was drafting the bill that became the Food Freedom Act. "A poultry producer could slaughter and process their own poultry without any controls and sell them at a farmers market and to other individuals as fa[...]
Fri, 30 Sep 2016 13:00:00 -0400Depending on the state you live in, you may be required to obtain an occupational license to become a plumber, an insurance agent, a hair braider, a manicurist, or even a racetrack employee. These licenses, which can take dozens or hundreds of hours of training to procure, afford privileged access to specific industries—and they can be revoked if certain standards aren't met. But in six states, the same standard isn't applied to one surprising profession: law enforcement. Massachusetts, New York, New Jersey, Rhode Island, California, and Hawaii employ 26 percent of this country's law enforcement officers, according to the Bureau of Justice Statistics. But they have no legal authority to revoke the licenses of cops who have been dismissed for misconduct. And even though the other 44 states can decertify police officers, there is no nationwide mechanism allowing every police department in the country to access an applicant's work history with out-of-state departments. This information gap allows officers banned from working as police in one state to secure law enforcement employment in another state. Police representatives would have you believe that "gypsy cops," as such officers are sometimes referred to, represent an overstated and barely existent threat at best. In March 2016, Ray McGrath, the legislative director of the International Brotherhood of Police Officers (IBPO)—one of the U.S.'s most prominent police unions—told members of the Massachusetts legislature, "It's not possible for an officer [fired for misconduct] to get another job in civil service," according to a state House reporter for Boston University. But bad cops can and do find work in law enforcement. Decertified police have repeatedly slipped through the cracks to find new jobs in the profession, often by moving to another state and applying to a department lacking the resources or manpower to do a thorough background check. Although some efforts to track police decertifications exist, they are scattered and fragmented, varying from state to state, with no unified national coordination. That's why police reform advocates have been pushing for the creation of a single, federally maintained database for more than 20 years. Police representatives like McGrath, however, have used their political influence to resist national tracking, referring to the perennially proposed solution of a national database as a "blacklist." At the same time, resistance to federal oversight of the country's police has roots in America's historical deference to local authority when it comes to policing—meaning that full compliance with such a project by the nation's 18,000 law enforcement agencies, scattered across state, county, and local jurisdictions, remains aspirational at best. Decertified Cops Can and Do Find New Jobs By Crossing State Lines It's harder than you might think for a cop to be stripped of his or her license: In 20 states a criminal conviction is required for an officer to be decertified. Even still, over 9,000 police officers did lose their licenses from 2009 to 2014. That's a lot of cops with stains on their records out there looking for work. And while opponents insist there's no need for a tracking system, because no agency worth its salt would hire a "bad cop," the history clearly shows that some of those bad cops are indeed able to find work after being stripped of their licenses. In 2008, Maywood, California, hired an interim chief who had previously pleaded no contest to "charging for bogus overtime," as The American Prospect put it. In 2011, another California town—McFarland—had three officers in its employ who had been dismissed from other departments for offenses that included driving drunk and crashing a police cruiser, lying to the FBI in an investigation over alleged child porn possession, and insurance fraud. But one notorious case from 1990 encapsulates the need to watch the watchers like no other. In the late 1980s, Chattanooga, Tennessee, Officer Stephen Lee Rollins—suspected of drug use and police b[...]
Mon, 26 Sep 2016 10:25:00 -0400Tonight as many as 100 million Americans, God help us, will be tuning in to watch the first debate between the two most hated presidential nominees since pollsters have been measuring candidates' unfavorability. Because the Commission on Presidential Debates, a technically nonpartisan nonprofit that was co-founded in 1987 by the Democratic and Republican parties to manage the terms of televised general-election discourse between White House aspirants, decided last October (with details ratified this August) to maintain as a participation threshold the unreasonably high average of 15 percent in national polls—a level no third-party candidate has attained in September of an election year since 1968—that means Libertarian Party nominee Gary Johnson, the highest-polling presidential outsider since Ross Perot in 1992, will be live-Tweeting instead of live-debating. Which is a shame, and not just for those 8.5 percent of us who intend to vote for the guy. Having a debate with no Gary Johnson means that a whole host of pressing issues will not be treated seriously Monday night, and increasingly in the election itself. From fiscal sanity to free trade, foreign occupation to repealing prohibition, the Democratic and Republican candidates have abandoned sober policy-making in favor of centrally planned, government-aggrandizing promises that often flout their own parties' bases and traditions. In many important ways, there will be no adult on stage. The following is an incomplete list of at least seven issue areas in which sensible and frequently popular viewpoints will not be offered by either of the "major"-party presidential candidates tonight, because a contrary Libertarian who will be on the ballot in all 50 states will nonetheless sit excluded, 28 miles away. 1) The country's grim long-term fiscal outlook. "Nobody's talking about balancing the federal budget," Johnson said on ABC's This Week with George Stephanopoulos Sunday. "Nobody's talking about the threat of a runaway government, nobody's talking about reforming Medicaid or Medicare." This reticence to grapple with the America's perilous balance sheet is new, and actively dangerous. As I detail in Reason's October cover story, every State of the Union Address between 1997 and 2013 mentioned the need for long-term entitlement reform; but no more. And that's not because the situation has gotten any less dire. To the contrary. In July, the Congressional Budget Office (CBO) pointed out that publicly held debt is "growing larger in relation to the economy than ever recorded in U.S. history," and that debt service alone will eclipse military spending in the next president's first term. "Large and growing federal debt over the coming decades would hurt the economy and constrain future budget policy," the CBO warned. "The amount of debt that is projected…would reduce national saving and income in the long term; increase the government's interest costs, putting more pressure on the rest of the budget; limit lawmakers' ability to respond to unforeseen events; and increase the likelihood of a fiscal crisis." Yet Hillary Clinton wants to expand Social Security and reduce the age for Medicare opt-in eligibility to 55, in addition to passing "the biggest investment in new, good-paying jobs since World War II," making "college tuition free for the middle class and debt-free for all," liberating "millions of people who already have student debt," and helping "more people learn a skill or practice a trade and make a good living doing it." How the heck would she pay for expanding an already bloated and unaffordable government? "Here's how," she said in her Democratic National Convention speech. "Wall Street, corporations, and the super-rich are going to start paying their fair share of taxes." Donald Trump, to his credit, does talk about the "disastrous" national debt. To his discredit, however, Trump's economic plans are estimated to increase that debt much faster than Clinton's, which is what happens when a Republican candidat[...]
Thu, 14 Jul 2016 08:48:00 -0400
(image) The Democratic Party's platform committee, which already had approved reform-friendly language on marijuana, strenghtened that plank over the weekend, adopting an amendment backed by Bernie Sanders delegates that recommends rescheduling the drug to provide "a reasoned pathway for future legalization." That stance seems like a compromise between the positions staked out by presumptive nominee Hillary Clinton, who says marijuana should be moved from Schedule I to Schedule II of the Controlled Substances Act (CSA) to facilitate research, and Sanders, who last fall became the first senator to introduce legislation that would repeal the federal ban on cannabis by removing the plant and its products from the CSA's schedules altogether.
The earlier platform language endorsed marijuana federalism and added, "We support policies that will allow more research on marijuana, as well as reforming our laws to allow legal marijuana businesses to exist without uncertainty." The new language says, "Because of conflicting laws concerning marijuana, both on the federal and state levels, we encourage the federal government to remove marijuana from its list as a Class 1 [sic] Federal Controlled Substance, providing a reasoned pathway for future legalization." Assuming that plank is in the final version of the platform, it will be the first time either major party has endorsed marijuana legalization, even as a distant prospect.
On Monday, meanwhile, the GOP platform committee rejected a much milder plank that voiced support for states that allow medical use of noncombustible marijuana products. The Huffington Post reports that one opponent of the language warned that mass murderers are "young boys from divorced families, and they're all smoking pot." Was that you, Roger Morgan?
Wed, 25 May 2016 07:30:00 -0400
(image) Yesterday the Justice Department further illustrated the unconstitutional absurdity of the federal hate crime statute by announcing that it will seek the death penalty for Dylann Roof, the man charged with murdering nine people at a church in Charleston, South Carolina, last June. Roof already faces the death penalty if he is convicted in his state murder trial, which is scheduled to begin in January. Do the feds think he should be executed twice?
The federal prosecution is worse than pointless. In the unlikely event that Roof is acquitted by a South Carolina jury, he can be tried again in federal court. That looks an awful lot like double jeopardy, except that the Supreme Court has arbitrarily decreed that serial prosecutions for the same conduct in state and federal courts do not violate the Fifth Amendment.
Roof's bigoted beliefs figured into the rationale for prosecuting him under federal law and the decision to seek the death penalty. He is charged with selecting his victims "because of" their race, and his racist statements before and during the mass shooting count as evidence of that motivation. Explaining their decision to ask for the death penalty rather than life imprisonment, prosecutors cited nine aggravating factors, including the fact that Roof "expressed hatred and contempt towards African-Americans, as well as other groups, and his animosity towards African-Americans played a role in the murders charged in the indictment."
The upshot is that Roof, because of the opinions he has expressed, is more likely to be convicted (since prosecutors can try him again if he's acquitted the first time) and more likely to be executed for his crimes (since if state jurors reject the death penalty federal jurors might still approve it). The Supreme Court says enhancing criminal penalties based on the defendant's bigoted motivation does not amount to punishing him for his beliefs. The Supreme Court is wong.
In addition to the double jeopardy and First Amendment issues, federal prosecutions like this one usurp the powers reserved to the states by the 10th Amendment. Murder is and always has been a state crime, and South Carolina is perfectly capable of prosecuting Roof for it. There is no need or valid constitutional rationale for federal involvement, the justification for which hinges on a reading of the 13th Amendment that could generously be described as implausible.
The federal prosecution of Dylann Roof is not about justice, which South Carolina is already pursuing. Last summer The New York Times reported that "Justice Department and F.B.I. officials have said the Charleston shooting was so horrific and racially motivated that the federal government must address it." In other words, the DOJ is trampling on federalism, freedom of speech, and a basic principle of criminal justice in order to make a political statement.
Tue, 26 Apr 2016 08:45:00 -0400
(image) Having failed to interest the U.S. Supreme Court in their challenge to marijuana legalization in Colorado, Oklahoma and Nebraska are trying to join a couple of other anti-pot lawsuits that are now before a federal appeals court. This month Oklahoma Attorney General Scott Pruitt and Nebraska Attorney General Doug Peterson asked the U.S. Court of Appeals for the 10th Circuit to let them intervene in cases brought by Pueblo County landowners and Colorado sheriffs.
The landowners, Michael and Hope Reilly, filed suit under the Racketeer Influenced and Corrupt Organizations (RICO) Act in February 2015, arguing that a marijuana cultivation facility that Rocky Mountain Organics planned to open on a parcel near their horse ranch in Rye will spoil the view, ruin their peace of mind, and bring undesirable odors and visitors. Last January, U.S. District Judge Robert Blackburn ruled that the Reillys could not use RICO to sue Gov. John Hickenlooper or the other state and local officials they named in their complaint. That decision left in place the couple's claims against Rocky Mountain Organics, the company's insurer, its landlords, and the contractors who are building the cultivation facility and piping water to it.
Six Colorado sheriffs, joined by four sheriffs from Nebraska and Kansas, sued Hickenlooper in March 2015, arguing that Amendment 64, which legalized marijuana in Colorado, violates the Controlled Substances Act (CSA) and therefore the Supremacy Clause (which makes congressional legislation "the supreme law of the land"). Last February, U.S. District Judge Wiley Daniel dismissed the lawsuit, ruling that neither the CSA, the Supremacy Clause, nor the international drug control treaties cited by the sheriffs authorize private causes of action.
In a lawsuit that the Supreme Court last month declined to hear, Pruitt and Peterson made arguments similar to the sheriffs', claiming that Colorado's regulation of marijuana suppliers violates federal law and harms their states by increasing opportunities for smuggling. Now they are trying to vindicate the interests they described in their lawsuit by joining the appeals filed by the sheriffs and the Reillys. "Because the people of Nebraska and Oklahoma have determined that marijuana is harmful and should be illegal," they say in their appeals court brief, "Nebraska and Oklahoma have a duty to protect their citizens from the continuing harms resulting from Colorado's illegal activities." They argue that there is "an imperative reason for intervention," because otherwise the 10th Circuit "may effectively decide Nebraska and Oklahoma's claim before it has the chance of being litigated in front of any court."
Mon, 11 Apr 2016 09:39:00 -0400
(image) In two interviews on Saturday, Ted Cruz reiterated his support for marijuana federalism. "Personally," he told the ABC station in Denver, "I would vote against marijuana legalization. If the state of Texas had a referendum on it, I would vote no. But I think it is the prerogative of the states to make that determination. I think the people of Colorado have the right to make the decision that they've made under the Constitution, and as president I would respect that right."
Talking to The Denver Post the same day, Cruz explained the practical advantages of letting states go their own way. "It is an opportunity for the rest of the country to see what happens here in Colorado, what happens in Washington state, see the states implement the policies," he said. "If it works well, other states may choose to follow. If it doesn't work well, other states may choose not to follow." He said it was too early to say how legalization is going in Colorado.
Those comments comport with what Cruz said at last year's Conservative Political Action Conference. "I actually think this is a great embodiment of what Supreme Court Justice Louis Brandeis called 'the laboratories of democracy,'" he told Fox News host Sean Hannity. "If the citizens of Colorado decide they want to go down that road, that's their prerogative. I personally don't agree with it, but that's their right." That marked a turnaround from Cruz's stance a year before, when he was complaining that the Obama administration had abdicated its responsibility to enforce the federal marijuana ban in states that had legalized the drug.
Most of the major-party presidential candidates (including all of those who remain in the race) agreed with Cruz that the feds should not interfere with marijuana legalization in states such as Colorado and Washington. The most vigorous dissenter from that position, Chris Christie, never scored higher than 5 percent in national polls. After quitting the race in February, Christie endorsed Donald Trump, who like Cruz says states should be free to legalize pot.
Fri, 01 Apr 2016 10:28:00 -0400In a Tulsa World op-ed piece published yesterday, Oklahoma legislator Mike Ritze, a conservative Republican, celebrates the Supreme Court's refusal to hear his state's lawsuit challenging marijuana legalization in neighboring Colorado. Ritze, who represents Broken Arrow in Oklahoma's House, was one of seven state legislators who complained about the lawsuit in a December 2014 letter to Attorney General Scott Pruitt. Ritze says he "firmly" opposes marijuana legalization. But unlike Pruitt, an avowed federalist, Ritze takes the 10th Amendment and the doctrine of enumerated powers seriously: The lawsuit essentially claimed that because a federal statute and a few U.N. treaties ban marijuana, Colorado has no choice but to not only accept prohibition, but to help enforce it. But that's simply wrong. First of all, the U.S. Constitution does not delegate any power to the federal government in this area. That is why alcohol prohibition in 1920 necessitated a properly ratified constitutional amendment to be adopted at the federal level. If the U.S. Constitution does not delegate any powers to the feds in the area of marijuana prohibition, and it doesn't, Washington, D.C., has no business ratifying international treaties or passing federal statutes acting as if it possessed those powers. The U.S. Constitution only says statutes and treaties created in pursuance with the Constitution are the supreme law of the land. Any power grabs undertaken in defiance of that Constitution are mere usurpations that states have a duty to nullify.... Secondly, even if those U.N. treaties and federal statutes were constitutional, the U.S. Constitution does not allow the federal government to compel a state to criminalize something. Nor can the federal government commandeer state or local government resources in pursuit of its own policy agendas. Although Pruitt did not claim that the Supremacy Clause requires Colorado to recriminalize the cultivation, possession, and sale of marijuana, he argued that the state's licensing and regulation of commercial production and distribution conflicts with the Controlled Substances Act and harms Oklahoma because some Colorado cannabis ends up there. If he had gotten his way, the result could have been a free, unregulated market in marijuana, which libertarians might celebrate but pot prohibitionists like Pruitt presumably would not. Still, Ritze is right that Pruitt wanted the Supreme Court to override Colorado's laws because he thought they made it harder for Oklahoma and the federal government to enforce their bans on marijuana. Note that Ritze does not merely object that such an imposition would violate the state autonomy recognized by the 10th Amendment. He also argues (correctly) that the Constitution does not authorize Congress to ban marijuana to begin with, just as it did not authorize Congress to ban alcohol until the ratification of the 18th Amendment in 1919. In his 2014 letter to Pruitt, Ritze noted that the Controlled Substances Act rests on a reading of the power to regulate interstate commerce that the Supreme Court developed in the late 1930s and early '40s—a reading so broad that it allows Congress to do pretty much anything it wants, as long as it is not explicitly forbidden by the Constitution. Fair-weather federalists like Pruitt reject that understanding of the Commerce Clause in the context of Obamacare and other policies they do not like but embrace it when it's convenient.[...]
Fri, 01 Apr 2016 07:30:00 -0400
(image) During his "town hall" with MSNBC's Chris Matthews on Wednesday, Donald Trump said "I'm getting some very negative reports" about the consequences of marijuana legalization in Colorado. He did not get more specific than that, except to suggest that "there's a lasting negative impact" if "you do too much of it."
Trump said something similar at the Conservative Political Action Conference last year, claiming that legalization has led to "some big problems" in Colorado. But he also said states should be free to legalize marijuana: "If they vote for it, they vote for it." Trump reiterated his support for marijuana federalism while campaigning in Nevada last October. "In terms of marijuana and legalization," he said, "I think that should be a state issue, state by state."
The dumbest comments about marijuana legalization on Wednesday actually came not from Trump but from Matthews:
What are the problems you've heard about Colorado? Because a lot of people wonder about who do you want smoking dope. I mean, do you want your train conductor, the bus driver, the airplane pilot? No. What do you want? Maybe the guy who teaches philosophy might be OK.
I mean—I mean does anybody trust anybody that's high to do anything? I mean, I'm serious about this....
Recreational drugs. What's that mean?
Matthews mentioned stoned train conductors, bus drivers, and airplane pilots but somehow left out stoned brain surgeons, another favorite prohibitionist trope. Like most drug warriors, he seems to think that if the government stops putting people in jail for growing, selling, and using marijuana, everyone will be high all the time. That expectation was clearly absurd even before any jurisdiction legalized marijuana (is everyone drunk all the time because alcohol prohibition was repealed?), and it's demonstrably false now. So contrary to what Matthews says, he is not at all serious about this.
Maybe this is one of the "very negative reports" Trump had in mind.
Mon, 21 Mar 2016 12:10:00 -0400
(image) Today the Supreme Court declined to hear Oklahoma and Nebraska's challenge to marijuana legalization in neighboring Colorado, which they say harms them through interstate smuggling. They argued that legalization in Colorado had "a direct and significant detrimental impact" on them by forcing "the diversion of limited manpower and resources to arrest and process suspected and convicted felons involved in the increased illegal marijuana trafficking or transportation." The Obama administration had urged the Court to reject Oklahoma and Nebraska's petition, saying their beef did not amount to a bona fide interstate controversy, since it grew out of lawbreaking that was neither directed nor approved by Colorado.
Oklahoma and Nebraska argued that Colorado's licensing, regulation, and taxation of marijuana growers and distributors violates the Controlled Substances Act (CSA) and therefore the Supremacy Clause, which makes federal statutes "the supreme law of the land." Colorado argued that it is acting well within the leeway that states enjoy under the Constitution and that its tolerance of heretofore criminal behavior does not create a "positive conflict" with federal law, as required for pre-emption under the CSA.
Justice Clarence Thomas, joined by Samuel Alito, dissented from the Court's decision not to hear the lawsuit. "The complaint, on its face, presents a 'controvers[y] between two or more States' that this Court alone has authority to adjudicate," he writes. "The plaintiff States have alleged significant harms to their sovereign interests caused by another State. Whatever the merit of the plaintiff States' claims, we should let this complaint proceed further rather than denying leave without so much as a word of explanation."
Marijuana Majority's Tom Angell welcomed the Court's decision, saying it avoids what could have been "a dark shadow on the marijuana ballot measures voters will consider this November" by allowing states to "move forward with implementing voter-approved legalization laws even if their neighbors don't like it." He adds that "if officials in Nebraska and Oklahoma are upset about how much time and resources their police are spending on marijuana cases, as they said in their briefs, they should join Colorado in replacing prohibition with legalization."
Mon, 22 Feb 2016 00:01:00 -0500In 1989 the U.S. Supreme Court upheld urine testing of applicants for Customs Service jobs that involved carrying a gun, handling classified material, or participating in drug interdiction. Justice Antonin Scalia dissented, calling the urinalysis program an "immolation of privacy and human dignity in symbolic opposition to drug use." Scalia noted that the Customs Service policy required people to perform "an excretory function traditionally shielded by great privacy" while a monitor stood by, listening for "the normal sounds," after which "the excretion so produced [would] be turned over to the Government for chemical analysis." He deemed this "a type of search particularly destructive of privacy and offensive to personal dignity." Six years later, Scalia considered a case involving much the same procedure, this time imposed on randomly selected athletes at a public high school. Writing for the majority, he said "the privacy interests compromised by the process of obtaining the urine sample are in our view negligible." Scalia deemed the testing program reasonable, noting the importance of "deterring drug use by our Nation's schoolchildren." As those contrasting cases illustrate, Scalia was of two minds when confronted by the government's efforts to suppress consumption of arbitrarily proscribed intoxicants. The widely revered and reviled justice, who died on February 13, was appointed to the Supreme Court four years after Ronald Reagan declared his War on Drugs and Nancy Reagan launched her "Just Say No" campaign. During the next three decades, Scalia alternately cheered and criticized the vain crusade to achieve a "drug-free society." While he never questioned the goal, he questioned the means used to reach it more often than his critics on the left might think. For many years enforcement of drug prohibition has been the main factor undermining the Fourth Amendment's ban on "unreasonable searches and seizures." Scalia participated in that process, joining his colleagues in upholding invasive tactics such as flying low over private property in search of marijuana plants, searching bus passengers' bags based on consent that was clearly not freely given, and testing the urine of high school students participating in sports or any other extracurricular activities. But Scalia also resisted drug warriors' assaults on the Fourth Amendment. Writing for the majority in the 2001 case Kyllo v. United States, Scalia said police need a warrant to examine a house with infrared technology, looking for heat patterns indicative of indoor marijuana cultivation. In addition to evidence of illegal activity, he observed, such surveillance "might disclose, for example, at what hour each night the lady of the house takes her daily sauna and bath—a detail that many would consider 'intimate.'" While "it would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology," Scalia wrote, "the question we confront today is what limits there are upon this power of technology to shrink the realm of guaranteed privacy….Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a 'search' and is presumptively unreasonable without a warrant." In the 2012 case United States v. Jones, Scalia likewise concluded that police need a warrant to track the movements of a suspected cocaine dealer by attaching a GPS device to his car. "The Government physically occupied private property [i.e., the car] for the purpose of obtaining information," he wrote. "We have no doubt that such a physical intrusion w[...]
Thu, 18 Feb 2016 06:30:00 -0500
(image) For many years drug prohibition has been the main factor undermining the Fourth Amendment's ban on "unreasonable searches and seizures." In my latest Forbes column, I explore how Antonin Scalia, who died on Saturday, both assisted and resisted that process during his three decades on the Supreme Court:
In 1989 the U.S. Supreme Court upheld urine testing of applicants for Customs Service jobs that involved carrying a gun, handling classified material, or participating in drug interdiction. Justice Antonin Scalia dissented, calling the urinalysis program an "immolation of privacy and human dignity in symbolic opposition to drug use." Scalia noted that the Customs Service policy required people to perform "an excretory function traditionally shielded by great privacy" while a monitor stood by, listening for "the normal sounds," after which "the excretion so produced [would] be turned over to the Government for chemical analysis." He deemed this "a type of search particularly destructive of privacy and offensive to personal dignity."
Six years later, Scalia considered a case involving much the same procedure, this time imposed on randomly selected athletes at a public high school. Writing for the majority, he said "the privacy interests compromised by the process of obtaining the urine sample are in our view negligible." Scalia deemed the testing program reasonable, noting the importance of "deterring drug use by our Nation's schoolchildren."
As those contrasting cases suggest, Scalia was of two minds when confronted by the government's efforts to suppress consumption of arbitrarily proscribed intoxicants. The widely revered and reviled justice, who died on Saturday, was appointed to the Supreme Court four years after Ronald Reagan declared his War on Drugs and Nancy Reagan launched her "Just Say No" campaign. During the next three decades, Scalia alternately cheered and criticized the vain crusade to achieve a "drug-free society." While he never questioned the goal, he questioned the means used to reach it more often than his critics on the left might think.
Mon, 08 Feb 2016 00:01:00 -0500With Rand Paul ending his campaign for the Republican presidential nomination, the GOP race has lost its strongest supporter of drug policy reform. But the remaining Republican candidates are for the most part not as retrograde in this area as you might expect, especially on the question of how the federal government should respond to state legalization of marijuana. For years Paul has been saying that drug policy should be devolved to the states as much as possible. In a Daily Show interview last month, the Kentucky senator made explicit one implication of that approach, joining Democratic presidential candidate Bernie Sanders in calling for an end to the federal ban on marijuana. Paul also has been an eloquent and passionate advocate of sentencing reform, sponsoring legislation that would effectively abolish mandatory minimums. Ted Cruz, who won the Iowa caucus on Monday and seems poised to finish second in the New Hampshire primary next Tuesday, is at best a pale imitation of Rand Paul. The Texas senator, who last spring bragged that he was an original cosponsor of a bill that would cut the mandatory minimums for drug offenses in half, seemed to turn against sentencing reform last fall, even while claiming he still wants to do something about "disproportionate sentences for nonviolent drug offenders." Cruz also has reversed himself on marijuana legalization, but in that case he moved in a reformist direction. In 2014 he criticized the Obama administration for failing to aggressively enforce the federal ban on marijuana in the 23 states that have legalized the drug for medical or recreational use. A year later, he agreed with Paul that the feds should not interfere. "I actually think this is a great embodiment of what Supreme Court Justice Louis Brandeis called 'the laboratories of democracy,'" Cruz said at the Conservative Political Action Conference (CPAC) in February 2015. "If the citizens of Colorado decide they want to go down that road, that's their prerogative. I personally don't agree with it, but that's their right." Donald Trump, who finished second in Iowa and is leading the polls in New Hampshire by a wide margin, took a similar stance at CPAC. The billionaire developer and reality TV star, who in 1990 advocated legalization as the only way to win the war on drugs, said he opposes marijuana legalization, which has led to "some big problems" in Colorado. But when asked whether states should be free to legalize marijuana, he said, "If they vote for it, they vote for it." Trump reiterated his support for marijuana federalism while campaigning in Nevada last October. "In terms of marijuana and legalization," he said, "I think that should be a state issue, state by state." Marco Rubio, who finished just a point behind Trump in Iowa and could take second or third place in New Hampshire, has been less clear on the subject. In an interview with talk radio host Hugh Hewitt last April, the Florida senator said he was against marijuana legalization while conceding that "states have a right to do what they want." At the same time, he said, "they don't have a right to write federal policy," and "we need to enforce our federal laws." But the real question is how Rubio would enforce federal law. The Obama administration continues to prosecute people for marijuana offenses even in states that have legalized the drug for medical or recreational use. But its general policy is not to prosecute people who comply with state law. Would Rubio raid state-licensed marijuana businesses? He seems keen to avoid answering that[...]
Fri, 05 Feb 2016 07:00:00 -0500
(image) Chris Christie has made no bones about his intent to shut down marijuana legalization if he is elected president. But Republican voters do not seem to be attracted by Christie's cannabis combativeness. The New Jersey governor, who finished eighth in the Iowa caucus on Monday and may take sixth place in New Hampshire next Tuesday, has never scored higher than 5 percent in national polls. Meanwhile, as I explain in my latest Forbes column, most of the other Republican candidates, including the two at the top, have explicitly rejected the heavy-handed federal intervention Christie favors:
With Rand Paul ending his campaign for the Republican presidential nomination, the GOP race has lost its strongest supporter of drug policy reform. But the remaining Republican candidates are for the most part not as retrograde in this area as you might expect, especially on the question of how the federal government should respond to state legalization of marijuana.
Mon, 18 Jan 2016 00:01:00 -0500On January 6, two days before Mexican authorities recaptured Joaquín Guzmán Loera, a.k.a. El Chapo, Oklahoma Attorney General Scott Pruitt pointed to another drug lord, this one hiding in plain sight: John Hickenlooper, a.k.a. the governor of Colorado. "The State of Colorado authorizes, oversees, protects, and profits from a sprawling $100-million-per-month marijuana growing, processing, and retailing organization that exported thousands of pounds of marijuana to some 36 States in 2014," Pruitt writes in a Supreme Court brief joined by Nebraska Attorney General Douglas Peterson. "If this entity were based south of our border, the federal government would prosecute it as a drug cartel." Hickenlooper actually was a drug dealer of sorts before he got into politics, having cofounded Wynkoop Brewing Company, a Denver brewpub, in 1988. But he ended up running the drug trafficking organization described in Pruitt's brief by accident. He was elected governor two years before Colorado voters decided, against his advice, to legalize marijuana. Pruitt and Peterson are trying to overturn that result, claiming that it hurt Oklahoma and Nebraska by encouraging an influx of Colorado cannabis. Their argument shows how readily some conservative Republicans let their anti-pot prejudices override their federalist principles. Last month Solicitor General Donald Verrilli urged the Supreme Court not to hear Oklahoma and Nebraska's challenge to marijuana legalization in Colorado. "Entertaining the type of dispute at issue here—essentially that one state's laws make it more likely that third parties will violate federal and state law in another state—would represent a substantial and unwarranted expansion of this court's original jurisdiction," Verrilli writes. Federal law gives the Supreme Court "original and exclusive jurisdiction of all controversies between two or more States." Verrilli rejects Oklahoma and Nebraska's contention that the illegal smuggling of Colorado cannabis creates an interstate controversy: Where the plaintiff State does not allege that the defendant State has "confirmed or authorized" the injury-inflicting action, there does not exist a "controversy" between the States appropriate for initial resolution under this Court's exclusive original jurisdiction….This case does not satisfy the direct-injury requirement. Nebraska and Oklahoma essentially contend that Colorado's authorization of licensed intrastate marijuana production and distribution increases the likelihood that third parties will commit criminal offenses in Nebraska and Oklahoma by bringing marijuana purchased from licensed entities in Colorado into those states. But they do not allege that Colorado has directed or authorized any individual to transport marijuana into their territories in violation of their laws. Nor would any such allegation be plausible. In last week's brief, Pruitt disagrees, likening marijuana produced and sold by Colorado-licensed businesses to air pollution that ineluctably wafts across the borders of other states. "Nebraska and Oklahoma can no more prevent Colorado's marijuana from crossing its borders than it can prevent its winds from blowing and rivers from flowing," he writes. Even while conceding the futility of prohibition, Oklahoma and Nebraska demand more of it, arguing that Colorado should be forced to assist their vain effort to prevent people from getting high by changing its laws. Since it is beyond dispute that states have no obligation to punish every act that Congress decides to treat as a crime, Oklahoma and Nebraska are not asking Colorado to recriminalize pro[...]