Spencer, Sessions, and the modern misconception of constitutional law

There is a difference between the letter of the law, the spirit of the law, the supremacy of one law over another when such laws conflict, and there’s absolutely a difference between moral laws and mere legality.

Sean Spencer yesterday said that he expected to see greater enforcement of federal law that pertains to recreational marijuana, including in states that have legalized under state law.  This view would use the supremacy clause to override state laws expressed under the ninth and tenth amendments.  Would such a crackdown be legal and enforceable?  I’m absolutely sure that the courts would see it that way, outside of the court of public opinion, where it absolutely loses.

Under essentially any view of the law, states like Colorado have every right passing laws that legalize, and prevent state resources from enforcing federal laws that say otherwise.  Under the modern conception of American law, however, the federal government is under no obligation to respect such state laws when they conflict with federal laws because of the supremacy clause.  Enforcement of things like the Controlled Substances Act can be enforced by federal agencies like the DEA, even when state laws prevent the cooperation of local authorities.  Whether or not this is the correct interpretation of law, however, hinges on two things.  One, whether the accepted view of the ninth and tenth amendments allow for the federal government to act beyond enumerated powers, and two… whether the Controlled Substances Act is within the scope of such enumerated powers.

When I speak of the “modern conception of American law”, I speak primarily of how much differently judges view the limitations of the Constitution compared to how such limitations were historically viewed.  Decades of case law have heaped layers of complexity and guidance to such constitutional questions, and any error not overturned near the beginning of such a process only compounds all errors moving forward.

Amendments to the constitution are significantly harder to pass than mere legislation.  The requirements are much more arduous, which is why in 229 years there have only been 27 amendments.  Ratification of three-fourths of the states is much harder to achieve than a simple majority in Congress.  So ask yourselves–after prohibition of alcohol passed Congress in 1917, why did they then submit the 18th amendment to the states for ratification rather than merely passing prohibition through the “normal” lawmaking process we’ve come to expect today?  Why did their passage of prohibition have no effect until the 18th amendment was ratified?

The answer is that the Constitution grants no enumerated power to the federal government to prohibit the use of substances, and any American law that is not constitutional is no law at all.  There was, in 1917, no serious arguments presented that the prohibition of alcohol would NOT require an actual constitutional amendment, because it was obvious that our Constitution never gave, or even contemplated giving, our federal government that power.

The first attempted regulation of pot directly by the federal government was the Marihuana Tax Act of 1937.  It recognized that Congress did have the power to tax specific things, even if it didn’t have the power to directly prohibit pot outright.

Of course, the common understanding of our constitution has changed, and many view it as a “living document”.  The Comprehensive Drug Abuse Prevention and Control Act of 1970 was passed with nary a whimper about it’s ultimate constitutionality that prevented alcohol prohibition until passage of an amendment just over fifty years prior.  Many excuses have been given in that time frame.  The most common is probably the interstate commerce and the necessary and proper clauses of the Constitution, interpreted much more expansively than they were in the past.  FDR made sure the federal court system bent to a more permissive posture towards him with threats and coercion, and following judges followed suit.  Today, they don’t even bother to give excuses for why new legislation is constitutional, as the assumption has become that any law passed by congress is an allowed expression of power unless it is directly contradicted specifically by limitations in the constitution such as the bill of rights.

With decades of case law reinforcing the view that the spheres of human activity Congress is allowed to regulate are virtually unlimited, a return to an understanding specifying the limits of enumerated powers seems unlikely.  Judges are unlikely to radically depart from the interpretations accepted by their recent predecessors and law professors.  The American public has so accepted the idea of presumption of power in favor of government action via majority votes in Congress or even unilateral executive actions, that I’m not sure how the genie can be put back in the bottle.  My implication that federal legislation passed nearly fifty years ago is unconstitutional under the traditional understanding of federal power is not an implication that will win in any modern court.

However, my preference for federalism applies.  The federalism proposition that states should be able to “opt out” of federal law like marijuana prohibition is not one I actually accept, and not just because of the supremacy clause.  That view of federalism is actually too weak and still presumes too much federal power.  The view of federalism that is most appropriate is that without a constitutional amendment, the federal government should not be allowed to declare federal prohibition in the first place.  States should have the right to make any kind of drug they wish illegal within their own borders, and I refuse to accept even that states should be required to opt out of federal law that should not exist in the first place.

Being a realist, I’m willing to accept that what I believe should happen simply isn’t going to.  There is merely too much precedent set which backs up an error in interpretation of constitutional law from roughly a century ago.  I’d settle for Trump’s first term seeing a separation of Hemp from the cannabis umbrella in federal law, a move of cannabis off of schedule one, or federal legislation preventing federal enforcement of pot laws in states that have legalized, even if it’s limited to medicinal states.  Hell, at very least some prosecutorial discretion that respects state rights.  But make no mistake–those are merely first steps in a larger battle to reclaim both the liberties we’ve lost in the war on drugs and a return to traditional interpretations about what our Constitution allows our federal government to do.

–Gary Doan

Bodies, thoughts, positives, negatives, and the law

We all have the right to ownership of our bodies.

Suicide, assisted or otherwise, should be our choice.

I’m happy to hear that it sounds like Trump is supportive of “Right to try” legislation (introduced by Ron Johnson) that allows the terminally ill to try medications which may be harmful and haven’t been approved by the FDA.

It should never be illegal to sell what is legal for us to give away for free, and that includes prostitution.

Sex among consensual adults, in any form, with any mix of genders, should never be the subject of legislation.

The government should have as little input as possible in what I eat, drink, or smoke.

If you are a mentally competent adult who is confident you want it and can afford it, hormone treatments and gender reassignment surgery is and should remain your option.

There’s no reason the most common birth control pills shouldn’t be available over the counter, and it’s none of the government’s business what birth control you use or whether or not your insurance pays for it.

A quick peruse about my facebook photos will probably tell you how I feel about tattoos. (Spoiler–I’m covered in them)

Being allowed to sell one’s own organs for profit can literally save lives.

Whatever one wants to do to their own bodies should be no concern of government, as long as what is done doesn’t directly impact another’s body.

There are no property rights if one does not have ownership of one’s own thoughts and one’s own body. Without first owning oneself, it simply could not follow that one could own things outside of oneself.

If you read my post and believe I mean to condone or celebrate the majority of these actions, you are misreading me. Even among the secular, it’s always a mistake to conflate morality with the law. Ironically, often the same people who will proclaim that we should not legislate morality, are the same ones who attempt to use the law to advance their version of it most successfully. I was not making the argument that all of these actions were moral, merely that they were expressions of free will without any victim outside of potentially oneself… and that we shouldn’t legislate crimes that lack victims. “Self” or “society” aren’t classes of victim that the law should actually recognize. We’ll all answer for our own choices if who we’re harming is ourselves without the government being the one to deal out punishment.

At very least, the law shouldn’t confer morality. Morality is always concerned with concepts like “right” and “wrong”, while just laws are concerned with concepts like “order” and “harm”. Just laws are aimed in a way that’s similar to the golden rule, but concern themselves with negative rights rather than positive rights, while morality deals with both. Just laws require the presence of a victim, directly harmed in a provable way, and prosecute direct actions of one against another without consent. Morality can also concern itself with condemnation of inaction and a requirement for positive action. For instance, charity may be required by moral codes, but it’s immoral for the law to require it. Moral codes may require self-improvement, ambition, and expressions of kindness, things that are unable to be legislated. Also, laws aren’t necessarily proclamations of what someone believes is moral. Often, laws are expressions of the self-interest of those with power.

At the end of the day, nearly all laws are property laws of a sort, and property norms are not possible in a rational system if individuals cannot own their own bodies or their own thoughts.  Without body autonomy mixed with individual belief, there can be no free will that allows anyone to actually impact their environment.  Without negative rights, positive rights are severely limited, morally meaningless, and the compulsion requires negates the label of charity.

–Gary Doan

Ten thoughts on Trump’s immigration hold

I’m away from news for just a couple of days, and everything seems on fire. I would have worded out some things about the immigration ban sooner, but, you know… children, work, whiskey, and birthdays. So here are simply ten random thoughts I had about the immigration hold when I finally had a chance to sit down, because the internet likes lists…

1. Some of the wording of the order seems to be interpreted in a way where it can block legal green card holders from entry or reentry to the country. This is essentially an ex-post facto law, and punishment without trial. This part is wrong, illegal, and maybe even unconstitutional under any circumstance.

2. There is precedent for temporarily banning immigration from specific countries. Carter did it with Iran. Obama once did it for six months for everyone from Iraq. Hell, it was just two weeks ago that Obama changed the refugee and immigration policy for Cuba.

3. The point of two wasn’t to say it was automatically right.

4. The security risks Trump cites are highly over-inflated and an accurate risk assessment wouldn’t have advised going anywhere near this far for safety alone, rather than theater that aims at making some people feel safer.

5. Often, though it sounds cold-hearted, refugees simply aren’t our problem.

6. Syrian refugees are. America’s actions directly contributed to the length and breath of their civil war, and we’ve actively prevented any resolution of the conflict that would seem like a win for Assad and Putin, opting instead to have continued violence as the literal goal of our strategy. Our weapons and money have been used, specifically, to prolong the conflict rather than end it.

7. There are better ways to help Syrian refugees than bringing them to America. There are plenty of countries in the region taking in no or few refugees that receive significant amounts of US foreign aid (here’s looking at Mina in Saudi Arabia, and similar sites), who have languages and cultures and geographical locations that would make either permanent resettlement or eventual return much easier. Making continued foreign aid dependent upon taking more refugees could easily be effective, preferable, and we wouldn’t be spending any more than we currently are while avoiding Americans feeling like “dem dere terrorists could infiltrate refugee flows”.

8. A 90-120 day ban on a few specific countries is preferable to his original proposal during the campaign for a temporary ban on all Muslims. However, he does claim that during the vetting process, Christians would get precedence, based on their status as an oppressed minority group.

9. If he was going to do a ban based on immigration from specific countries, he chose the wrong ones. Saudi Arabia should have just about topped that list, but they’re considered an ally.

10. If, in the future, we don’t want to worry as much about the possibility of refugees from these countries wanting to kill us, maybe we should look at what the countries on the list have in common. Over the past decade, we’ve armed violent actors within or simply bombed Iraq, Syria, Yemen, Libya, and Somalia. We’ve saber rattled against Iran, and there’s plenty of US politicians simply itching to invade it, openly. That’s six of the seven countries he listed. Granted, we could be talking about a chicken and egg thing, but at very least US actions have contributed to the kinds of extremism we’re worried about in these countries by, you know… blowing people up.

–Gary Doan

Defunding Planned Parenthood is the Pro-Choice Position

I intentionally avoid the abortion debate.  As I’ve said before, it’s the one political argument that you can never win, where the actual facts don’t matter, and it’s likely to produce anger and frustration even among people who are comfortable debating any other political topic.  Whether one views the fetus as a baby, a clump of cells, or a parasite is often more an expression of feelings than fact, and will likely cloud out dispassionate rational judgement about what the words we use even mean, what the procedure truly entails, or what “common sense” laws surrounding it should even look like.

But as I implied, I’m not here to engage in the morality of abortion, and I recognize that both “sides” can make valid arguments about it.  However, we need to start with a recognition that there are people who disagree with you, and do so strongly, from a moral standpoint that they believe in just as strongly as you believe in your side.  Scientifically speaking, the people who believe the opposite of you on abortion may just be clumps of cells, but that doesn’t mean we should dismiss them as not human merely because their morality runs counter to ours.  If it offends you that some people think that a fetus is actually a baby, or that there are some people who think it’s not, well… recognize for a second that the belief exists, rationally, that they feel strongly about it, and that there’s a large chunk of our country that feels just like they do.  Only after making that consideration, should you approach whether or not Planned Parenthood should receive federal funding.

I’ve always been annoyed with how many people fall into the trap of pretending that “federal law already prevents funds from going to abortion services” means anything.  It’s an accounting trick, just as dishonest as shell corporations or equity swaps.  Say you, as a worker, were making just $300 a week, and finding it hard to make the rent.  Say your raise took you to $500 a week, with a stipulation that the extra $200 couldn’t go towards your rent.  It would still be easier to pay your rent.  You’d merely use some of the original $300 that you were spending on, say, your energy bill or gas money or bar tab, and use it towards rent instead.  The stipulation would be completely and utterly irrelevant, as long as rent was less than the entirety of your check before the raise.  Planned Parenthood makes over 40% of their money from taxpayer donations, so as long as they could fund abortions with the rest, the stipulation is functionally non-existent.  That doesn’t even need to include “shared” expenditures like buildings that are used both for abortion and non-abortion services, employee salaries that have the responsibility to perform both abortion and non-abortion services, etc.  There is simply no honest way to segregate these funds that functionally matters.

The moral rationale for the stipulation that federal funds not be used for abortion is pretty obvious.  Even the most die hard pro-choice extremist, who believes abortion should be allowed even as a method of birth control, at any point of pregnancy before the completion of birth and has no problem even with the partial birth variety and believes that there is no moral component at all to the practice… should still be able to recognize that there are people in the world who believe the practice is literal murder in every sense but it’s legality, and who think that “evil” may not be a strong enough word for condemnation.  I think “evil” is a pretty strong word to describe anything, but forcing someone to contribute to the continuation of the practice, violating their conscience any time they pay taxes to fund what they see as evil?  That forced association is inexcusably immoral to anyone who believes in free association and morality.

Yes, the same argument could be made for pacifists being forced to fund our military, and I’m sympathetic to that argument as well.  But the fact is, our nation requires a military for it’s continued existence, even if we often misuse it, and there’s no way really to fund an effective modern military solely on individual donations rather than the theft of taxation.  Abortions will happen in this country whether or not we continue funding planned parenthood, planned parenthood will still exist and still continue to commit roughly a third of them, and the only thing that would change is who pays for the practice.

Being pro-life is not a requirement at all to accept that other people should be allowed to be pro-life, and to not be forced to fund abortions… in fact, the pro-choice position on this is to give people a choice in their participation.  The only requirements for accepting this limited argument are common decency and common sense.  I don’t agree with Paul Ryan on everything.  But his goal to defund planned parenthood is common cause.

–Gary Doan

Past a Pardon

The provisions of the Espionage Act of 1917 which have been used as justifications for political prosecutions in recent history, were originally meant to prosecute leaks to an “enemy of the United States”. Near as I can tell, the information from nearly all recent whistle-blowers have been made to the American public itself. Now, in an abstract sense, America probably is it’s own worst enemy, but I’m pretty sure that’s not a serious legal rationale.

Granted, it’s an oversimplification that information released to the public domain is only released to the American public.  Information posted that, say, outs an undercover CIA agent, can be seen just as easily by an ISIS member with a laptop and functional internet as it can be by you or me.  However, there are already laws against actions like that which don’t rely on the espionage act.  It’s a hundred year old relic that seems to only function in the modern world as an excuse to bypass first amendment protections for political prosecutions of those who expose what the government wants to remain hidden.

All the petitions by those who want Obama to pardon Edward Snowden or Chelsea Manning before he leaves office seem to miss some of the larger points.  Even if they were to be pardoned, the act of the pardon would accomplish at least two negative things along with the positives.  One, it would be seen as an admission of guilt that was merely being forgiven.  Two, it would do nothing to address the chilling effect on the speech of future whistleblowers.  If prosecution or commutation is only done by decree, at the whim of a single individual, then the law is by definition a mutable, unjust, unequal suggestion backed by selective enforcement.  It still remains a threat to future actors, as forgiveness for doing the right thing is not guaranteed by anything constant.  As much as I want justice for Snowden, whether through a fair trial or a pardon, his case is merely the symptom of a larger disease, and such a pardon is not a cure.  The advantage to offering him a fair trial, as he should be entitled to, is that it comes with the possibility that we could see a ruling that finally addresses the underlying problem.

The court could choose to address the matter, positively, from several different directions.  The simplest way that changes the least amount of accepted law and practice, and is safest against overreaching, is that the act isn’t properly applied as intended or as appropriate.  This limited approach would be based on no technical change in the law or override of any specific sections, but interpretations that leave it largely intact.

The obvious positive ruling on the matter, would address it from a free speech issue perspective.  The Espionage Act functions without the kind of limiting principle that usually accompanies speech restrictions that are seen as constitutional.  The most obvious limiting principle would be allowing a public interest defense.  They could rule that the law lacks a “carefully and precisely defined” limitation on speech, and that as written, it’s too broad and all-encompassing.

There’s also fun little technicalities I could think of all day long.  The Espionage Act is meant to define “espionage” during “wartime”.  The “war on terror” is just a rhetorical flourish like the “war on drugs” or “war on poverty”.  It’s not a valid, binding concept.  The AUMF was limited by things like time and place, and the defined enemy is not the world.  The war powers resolution attempts to set limits on “military action” that is somehow short of war.  Congress hasn’t officially declared war since 1941, which under our constitution is a requirement for the existence of a valid war.  This is the reason for the creation of terms like “kinetic military action”, from Korea to Libya and Syria, by our government as attempts to justify their actions.  If the courts took up what defines “war”, that could have consequences far past free speech considerations.