by Michael Boldin

My home state of California usually interacts with the federal government by genuflecting.  But, on a few issues - very few, that is - they’ve got plenty of backbone.

Most notably, marijuana.

Last week, the California State Senate passed Senate Joint Resolution 14 (SJR14), calling on the federal government to end their “interference in state medical marijuana laws.”  If passed by the Assembly, it will be sent on to Congress and the White House as an official position of the California legislature.

THE INTERSTATE COMMERCE CLAUSE

Under the Constitution of the United States, the federal government is authorized to exercise only those powers which have been delegated to it by the People.   This is affirmed by the ratification of the 10th Amendment, which states, ”The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The federal government has often taken the position that it can still wage its “war on marijuana” under the “Interstate Commerce Clause” in Article I, Section 8 of the Constitution.  But, some experts see this kind of explanation as quite a stretch.

Most importantly, the Interstate Commerce Clause, as understood by the founders, was meant to empower the federal government to regulate trade among the states.  One of the chief concerns this addressed was preventing States from imposing restrictive taxes on goods coming from other states.

The Founders, however, made it quite clear that this would not authorize the government to take over fields like agriculture.  Clearly, this hasn’t stopped today’s politicians and judges from turning that original meaning nearly upside down.

FIREARMS TOO

While the stand off on state marijuana laws has been going on for over a decade, firearms is a new front in the Commerce Clause debate.

This year, both Montana and Tennesse passed a “Firearms Freedom Act” taking the position that guns manufactured in state, sold in state, and kept in state - would not be subject to federal laws and regulations under the Commerce Clause.

So far, the only response has been a sternly-written letter from the assistant director of the ATF stating his position that federal law supercedes state law - and the federal government intends to continue its current regulations.

A coalition of the Montana Sports Shooting Association and the 2nd Amendment Foundation is planning a court challenge “to the federal government’s insistence it will regulate those items.”

LEAVE IT TO THE STATES

According to Paul Armentano, deputy director of the National Organization for the Reform of Marijuana Laws (NORML), this is an issue that should be left up to the states.  He said, “The federal raids on medicinal marijuana providers have dissipated since Eric Holder was sworn in.  That said, the DEA has continued to be involved in a handful of raids in California — each time in cases that appeared to have been solely state matters (e.g., providers were alleged to be involved in state tax disputes or in violation of local ordinances), particularly based on the fact that federal charges were never filed.  If the Obama administration is really serious about leaving this issue solely up to state governments — as it should be — then the federal DEA ought to be leaving the voters of the thirteen states that have enacted medical marijuana policies alone.”

PROMISES MADE, PROMISES BROKEN?

As more states have passed medical marijuana laws, it’s become increasingly difficult and costly for the federal government to enforce its laws.  The Obama Administration has promised to end interference in state medical marijuana programs, but numerous federal raids since January have California lawmakers concerned.

SJR14 Sponsor Senator Mark Leno said that, “Patients and providers in California remain at risk of arrest and prosecution by federal law enforcement and legally established medical marijuana cooperatives continue to be the subjects of federal raids.”

In August, for example, federal agents conducted multiple raids on medical marijuana providers. On August 12, the Drug Enforcement Administration (DEA), Federal Bureau of Investigation (FBI), Internal Revenue Service, and local police carried out a paramilitary-style raid on a medical marijuana provider in Los Angeles.

The reason given?  The government claimed that the raided facility had “failed to submit state sales tax revenues.”

Where the Constitution permits federal agencies to enforce state tax code violations, I’ll never know.

A CONSTITUTIONAL REPUBLIC?

Supporters say that the reduction of raids under the Obama administration is a good thing.  But, according to noted Constitutional historian Kevin Gutzman, leaving the fate of such issues to the decision of one sitting president or another is a dangerous precedent.

“Attorney General Holder’s decision to halt the long-standing federal policy of prosecuting medical marijuana distributors is a welcome development,” said Gutzman. “However, so long as the Federal Government does not recognize the states’ Tenth Amendment right to decide the issue of medical marijuana, a return of the bad old days when patients suffering crippling pain were denied this medical treatment is always one election away.”

In other words, any society that rests the fate of its liberty on the “goodness” or “badness” of its leaders is in serious trouble.

“That,” said Gutzman, “is the difference between a democracy and a constitutional republic.”

Copyright © 2009 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.

by Michael Boldin

Introduced in the Michigan House on August 11, 2009, the “Firearms Freedom Act” (HB-5232) seeks “to make certain findings regarding intrastate commerce; to prohibit federal regulation of firearms, firearms accessories, and ammunition involved purely in intrastate commerce in [the State of Michigan]; to provide for certain exceptions to federal regulation; and to establish certain manufacturing requirements.”

The bill was authored by Rep. Phillip Pavlov and currently has 44 co-sponsors. Continue Reading

by Rob Natelson

How can Congress get around the Tenth Amendment and regulate almost every aspect of American life?

One way is by claiming that the Tenth Amendment doesn’t apply because Congress is merely acting within the scope of its enumerated powers.  But to make this claim, one must assume that some of the enumerated powers are much broader than they really are.

One of the enumerated powers cited by advocates of the modern monster-state is the Commerce Power.  This derives primarily from two sources:

(1) the Constitution’s grant to Congress of authority to “regulate Commerce . . . among the several States” and

(2) the Constitution’s grant to Congress of authority to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing powers. . .”

According to promoters of the monster-state, those constitutional phrases go further than allowing Congress to regulate trade among the states.  They also allow Congress to control manufacturing, wages, agriculture, crime, mining, land use, firearm possession, and a range of other activities.

How can they justify this?  Basically, they make two arguments.  The first argument was spun during the New Deal by a University of Chicago law professor.  (Too many law professors spend entirely too much time fabricating constitutional theories to promote big government.)

This professor argued that during the Founding Era the word “commerce” meant more than trade.  Instead, he contended, “commerce” included all gainful economic activities.  Hence Congress has a license to regulate the entire economy.

An even broader version of this theory was published more recently by a Yale law professor.  He maintains that “commerce” means any human interaction – so the federal government can regulate almost anything, so long as it doesn’t trample one of the specific guarantees in the Constitution, such as Free Speech.

On investigation, however, the claim that “commerce” meant “all gainful activities” or “all interactions” turns out to be completely untrue.  It flies in the face of much of what we know about the Founding Era, including specific representations by leading Founders that most regulation would be reserved to the states.

But because it is sometimes necessary to prove the obvious, several other academics (such as Georgetown University’s Randy Barnett and I) have examined literally thousands of appearances of the word “commerce” in the historical records from the Founding Era.  And those records show clearly that “Commerce” in the Constitution means trade and associated activities, but no more (e.g., http://www.umt.edu/law/faculty/natelson/articles/Commerce%20Clause.pdf).

The second argument for an almost unlimited Commerce Power currently prevails on the U.S. Supreme Court.  (Don’t let anyone tell you the present court is “conservative” on such matters.)   This argument acknowledges that when the Founders wrote “Commerce,” they meant only trade and a few allied activities, such as navigation.

But it goes on to say that modern economic life, unlike life during the Founding Era, is highly interdependent, so it is now “necessary and proper” for Congress to regulate everything that substantially affects commerce.

But this argument also ignores history.  Economic interdependence is nothing new: the promoters of the Constitution themselves emphasized it.  But they also assured the public that, interdependent or not, most activities could be regulated only by the states.

They added that the Necessary and Proper Clause added nothing to federal authority, but merely clarified that the legal “doctrine of incidental powers” applied to the Constitution.  And no power could be “incidental” if its scope swamped the principal power.  In other words, Congress couldn’t take over a big field like manufacturing or agriculture on the pretense of regulating commerce.

If the Supreme Court were doing its job in this area, it would restrict Congress to the authority granted by the people through the Constitution.  Because the Court is not doing what it should, it is up to the people to recall the federal government to its constitutional limits.

Rob Natelson is Professor of Law at The University of Montana, and a leading constitutional scholar.  (See www.umt.edu/law/faculty/natelson.htm.) His opinions are his own, and should not be attributed to any other person or institution.

Phil Russo and Jason Hoyt of TeaPartyPatriotsLive.com (660 WORL-AM: Orlando, FL), interview Michael Boldin on the Florida’s Sovereignty Resolution, the Firearms Freedom Act, the Commerce Clause, and more.

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Introduced in the Florida House on July 6, 2009, the “Firearms Freedom Act” (HB-21) seeks to provide “that specified firearms, firearm accessories, and ammunition for personal use manufactured in state are not subject to federal law or regulation” in the State of Florida.

The bill is sponsored by Florida State Reps O’Toole and Plakon.  They follow in the path of Montana, and Tennessee who have already passed such legislation.  And they join with Utah, Texas, South Carolina and others who are considering it in an effort to limit federal regulation of guns, and specifically invoke the 9th and 10th Amendments as restrictions on federal power:

“the regulation of intrastate commerce is vested in the states under the ninth and tenth amendments to the United States Constitution, particularly if not expressly preempted by federal law. Congress has not expressly preempted state regulation of intrastate commerce pertaining to the manufacture on an intrastate basis of firearms, firearms accessories, and ammunition”

Read the full text of the legislation below: Continue Reading