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Will wonders never cease? The federal Drug Enforcement Administration (DEA) reportedly is considering moving marijuana from the most highly restricted class of “Controlled Substances” – Schedule I – where it has resided for more than half a century, to the far-less restrictive category as a Schedule III drug.
This reclassification, if actually implemented, truly would represent a sea change in federal drug policy, which since 1970 has been defined by the Nixon-era Comprehensive Drug Abuse Prevention and Control Act of 1970, of which the Controlled Substances Act is found at Title II.
As with much federal regulatory power, Uncle Sam’s control over drugs, including “controlled substances” and all manner of prescription medications, is implied – deriving from numerous laws passed by the Congress and upheld by the U.S. Supreme Court as legitimate under the so-called “commerce power” found in Article I, Section 8 of the Constitution.
Despite the otherwise clear limiting language in that Section of the Constitution that congressional power to legislate extends only to “commerce” between states, ever since President Franklin Roosevelt’s “New Deal” in the 1930s, all three branches of the federal government have eagerly gobbled up powers clearly never dreamed of by those who wrote and ratified that document.
The final bulwark against this deluge was essentially destroyed in 1942, when the High Court found constitutional under the Commerce Clause, the federal government’s power to regulate the price of wheat grown by a farmer in Ohio (Roscoe Filburn) even though none of his product was used or sold beyond the borders of the Buckeye State.
The tortured reasoning that underpinned the Supreme Court’s decision in Wickard v. Filburn, provided a bright green light for virtually every Congress and president since then to reach into every nook and cranny of life in America without fear of being circumscribed by the courts.
In 1970 this overreach found a home in federal drug policy and with marijuana being classified as among the most dangerous drugs in the country (right up there with heroin, LSD, and MDMA or ecstasy).
Congress justified this regulatory overreach by “finding” that since some, if not most marijuana, travels in interstate commerce, it is easier to lump it all together and consider it all in the context of “commerce” between the states.
So much for the idea of a federal government of limited and defined powers.
In a California case six decades after farmer Filburn found himself in Uncle Sam’s crosshairs, Angel Raich was the victim of similar regulatory abuse. Ms. Raich used small amounts of marijuana provided free of charge for her medicinal use by local caregivers – all fully compliant with that state’s “Compassionate Use Act of 1996.”
That exercise of freedom did not sit well with Alberto Gonzalez, at the time serving as U.S. Attorney General, whose Justice Department swooped in to stop Ms. Raich notwithstanding that she acted in full compliance with California law, and despite there being nary the slightest hint of “commerce” of any sort. A majority of U.S. Supreme Court justices allowed the DEA to confiscate the small amounts of medicinal marijuana obtained by Ms. Raich and prevent her from obtaining more.
The notorious Gonzalez v. Raich decision remains the law of the land, although in recent years the feds as a practical matter have largely backed away from prosecuting cases involving medicinal marijuana if in compliance with various state laws.
Despite this policy decision not to strictly enforce federal marijuana laws in states where medicinal use is lawful, marijuana remains a prohibited Schedule I drug with no acceptable medical use.
That may change in the coming months if reports are accurate that, on April 30th, Attorney General Merrick Garland sent the White House a formal proposal to move marijuana and its essential ingredient, tetrahydrocannabinols, to Schedule III, a move that under the Controlled Substances Act the attorney general can make without congressional approval.
Such a move, long championed by libertarians and many medical groups, would be welcomed not only by marijuana users, but also by businesses involved in the marijuana trade. As a Schedule III product, marijuana-related businesses could not only engage in transactions with banks and credit card companies without fear of legal retribution, but they could lawfully claim a wide variety of tax benefits now denied them because of marijuana’s high classification.
This historic policy change will be a boon to marijuana users and businesses. Whether it bodes well for our social culture is another question altogether.
Bob Barr represented Georgia’s Seventh District in the U.S. House of Representatives from 1995 to 2003. He served as the United States Attorney in Atlanta from 1986 to 1990 and was an official with the CIA in the 1970s. He now practices law in Atlanta, Georgia and serves as head of Liberty Guard.
Forgive me if I do not view student agitators vandalizing buildings at Columbia University and other universities across the country as an existential threat to America. The goings on do represent a serious problem, but one that can be dealt with successfully if — and this is a big “if” — done quickly, forcefully, consistently and in coordination with the federal government.
In terms of the students, we’ve seen such behavior before (recall April 1968, if you will) and we’ll almost assuredly see it again – bored students nearing the end of the school year, along with assorted other troublemakers, seizing on an issue likely few of them truly understand and making unreasonable and implausible demands on the universities.
Damaging school property, holding hostages and resisting lawful efforts to be removed from trespassing on Columbia’s and other schools’ properties, are wrong and worthy of serious condemnation and significant legal punishment (sooner rather than later).
But let’s keep it in perspective. Take a deep breath, step back and consider the student-centric demonstrations at numerous universities, including Columbia and even my undergraduate alma mater, the formerly conservative University of Southern California (USC), for what they are — not the tolling of the “Doomsday Clock” by a bunch of spoiled students, but rather a serious but manageable incidence of organized chaos against civil society and American public policies by individuals and groups outside the education arena.
Viewing the student demonstrators as so powerful and feared as to present an existential challenge to the government of the United States will result in overreaction and almost certain long-term escalation and strengthening of the adversarial elements behind the violence.
Overestimating your adversaries actually emboldens them.
Addressing the obviously well-organized demonstrations as serious but beatable through swift, tough and consistent responses by the institutions and by law enforcement, sends the right message — that the adults remain in charge and will defend their interests and institutions, but without exhibiting such fear of the protestors that elevates them to a level of power and prestige to which they are not entitled.
It took less than 24 hours for Columbia University authorities to call in the NYPD to forcibly rid Hamilton Hall of the dozens of law-breaking student demonstrators. This was a far swifter response to the takeover than the week that elapsed 56 years ago in April 1968 between the time students upset over America’s involvement in Vietnam (and, yes, carrying banners supporting North Vietnam, a country with which we were engaged in a bloody conflict at the time) decided to occupy Hamilton Hall, and NYPD forcibly removing them.
At least in this instance, Columbia learned from its own history.
Classes are now ended, summer break has started and hopefully the students will stand down and consider doing what students are by definition supposed to do — study. Even more to be hoped, however, is that University administrators will follow through and press charges against those students — and others — who violated not only university policies but criminal laws.
It is, however, highly questionable whether Manhattan District Attorney Alvin Bragg, who so eagerly has pursued former President Donald Trump for six-year old misdemeanor false document filings, will actually prosecute individuals at Columbia University who committed far more serious and felonious violations. Have to hold our breath on that one.
More important than what Mr. Bragg does, is whether the U.S. Department of Justice seriously investigates what appears to be a coordinated, multi-state (if not multi-national) effort to destabilize U.S. government policies in the Middle East by funding and fomenting disruptions, including violence, on American college campuses.
For example, where did the money come from that provided all those tents that sprang up on campuses from New York to Los Angeles? And what are the sources of the millions of dollars filling the coffers of pro-Palestine student-oriented organizations such as Students for Justice in Palestine (SJP)? What might be the connections between that “student” group and American Muslims for Palestine (AMP) and Hamas?
Members of the media are asking such questions. These are the far more serious queries than worrying about the sensitivities of the Little Darlings using their parents’ money to break windows and doors at expensive colleges. Are U.S. Attorney General Merrick Garland and FBI Director Christopher Wray seriously investigating such matters? They sure should be.
Bob Barr represented Georgia’s Seventh District in the U.S. House of Representatives from 1995 to 2003. He served as the United States Attorney in Atlanta from 1986 to 1990 and was an official with the CIA in the 1970s. He now practices law in Atlanta, Georgia and serves as head of Liberty Guard.
An adage learned early in the career of a trial attorney is, “if the law is not on your side, argue the facts, and if the facts are not on your side, argue the law, but if neither the facts nor the law are on your side, make sure you get your fee up front and in cash,” because you are almost certain to lose your case.
Manhattan District Attorney Alvin Bragg is paid by Big Apple taxpayers regardless of whether he wins or loses a case, but he deserves to lose the so-called “hush money” case against former President Donald Trump because neither the law nor the facts justify this prosecution.
Although the trial in the case, styled “THE PEOPLE OF THE STATE OF NEW YORK against DONALD J. TRUMP, Defendant,” is in its early stages, any reasonably objective analysis of the applicable facts and the law leaves one with far more doubt than could be considered “reasonable” that the 45th President of the United States committed even a single one of the 34 criminal acts alleged by Mr. Bragg.
Media attention focuses on virtually every real or perceived aspect of what happens inside the courtroom of Judge Juan Merchan, down to and including the thermostat setting and Trump’s posture; such irrelevancies are fodder for media pundits on both sides of today’s ever-present partisan political divide.
It is, of course, not surprising that conservative media outlets believe Trump to be absolutely and unquestionably innocent, while their liberal counterparts can hardly contain their glee at the former President’s predicament and wish him a speedy trip to Riker’s Island. Much of the ongoing news coverage of the trial reflects this divide, while offering little in terms of meaningful legal analysis.
Taking the time to sift through the Red vs. Blue media coverage, however, rewards one with an occasional piece that is educative. The best of these I have found is a New York Times Guest Essay by Boston University law professor Jed Handelsman Shugerman – “I Thought the Bragg Case Against Trump Was a Legal Embarrassment. Now I Think It’s a Historic Mistake”. If the reader only scans the title, they very well might conclude the essay is just another in a long line of superficial analyses of the hush money trial by a supporter of the former President, and skip over it. This would be a mistake.
Shugerman’s piece is anything but superficial, and I have no idea whether he is Republican or Democrat, a Trump hater or MAGA true believer. I could care less. What I do care about is the lucidity with which the professor analyzes the theory or theories on which Bragg’s case appears founded and the manner by which it is being presented to the judge and the jury.
The overarching thesis at the heart of Shugerman’s argument that Bragg is on the wrong prosecutorial track, lies in what appears clearly to be a misguided effort (“crusade” could be a more apt term) by the prosecutor to fit what might at best be seen as a series of falsely characterized business records into a broad “election fraud” scheme through which Trump intended to unlawfully interfere in the 2016 presidential election.
The proverbial effort to fit a square peg into a round hole.
The fact that the 2016 election is a federal matter and not a New York state matter, and therefore outside the prosecutorial jurisdiction of a local New York state prosecutor, appears to have been a technicality beyond Bragg’s ken. It nonetheless is a serious defect in the case. Notwithstanding this jurisdictional roadblock, Bragg and his assistant prosecutor Matthew Colangelo employ the “[federal]election interference” theory as a trampoline from which to jump onto the election fraud bandwagon that has fixated so many Republicans and even Democrats for eight years.
Calling a case of nothing more than a series of misdemeanor false business filings felonious “election fraud” does not make it so. Even Colangelo’s opening statement, which good litigators use as a roadmap laying out the case for the jury with the clarity and simplicity that wins jurors to their side was, again as appropriately noted by Shugerman, short on specifics and long on vagueness – indicative of a dangerously, if not fatally weak case.
Bob Barr represented Georgia’s Seventh District in the U.S. House of Representatives from 1995 to 2003. He served as the United States Attorney in Atlanta from 1986 to 1990 and was an official with the CIA in the 1970s. He now practices law in Atlanta, Georgia and serves as head of Liberty Guard.
President Biden’s family, individuals within his Administration, and his political supporters will defend him aggressively when former President Trump and others in the GOP deride him for his many gaffes and policy blunders. Mainstream media pundits will continue to cover for him when presented with inescapable evidence of his advanced age.
There is, however, one trait exhibited repeatedly by the current President that is beyond dispute or defense even by his most ardent supporters – Biden’s utter disdain for the rule of law. This disturbing characteristic was on full display recently with the signing of a regulatory “rule” placing further limits on the Second Amendment without bothering to secure the legislative approval to do so as required by the Constitution.
Constitutional Law 101 reminds us that of the three branches of our government, only the Legislative is empowered to pass, amend, or change laws. In fact, the very first operative sentence of the Constitution makes this abundantly clear, vesting All legislative Powers in the Congress; not in the presidency and not in the Courts. Once the Congress has spoken by passing legislation, and once signed by the president, it becomes the law of the land and can be changed only by subsequent act of Congress.
It is black-letter law that a president cannot, consistent with the Constitution and the principle that America operates as “a government of laws, and not of men,” simply change terms defined and codified in statutes to suit his policy preferences.
This is, however, exactly what the Biden Administration has done with long-standing firearms laws which provide that if individuals or businesses regularly and as a matter of course sell firearms, then such transfers must first be cleared through the National Instant Criminal Background Check System (“NICS”). Importantly, neither the “Gun Control Act of 1968” (which set up the system of Federal Firearms Licensees) nor the “Brady Handgun Violence Prevention Act of 1993” (which established the NICS system) required that every transfer of a firearm be first cleared through the NICS system.
In making such a distinction between what might be considered “occasional” gun sales and those by a business or individual engaged in the regular commerce of trading in firearms, the Congress properly limited the reach of mandated firearms background checks to the scope of federal power under the Constitution; namely, “commerce.”
Gun control advocates cleverly over the decades have hijacked the term “loophole” to characterize sales at gun shows in such a way as to imply that such sales were intended by Congress to have been covered by the background check mandate. In fact, however, federal law is clear on this point – there is no gun show “loophole” (defined by Merriam-Webster as “an ambiguity or omission in the text through which the intent of a statute, contract, or obligation may be evaded”).
In recent years, there have been myriad legislative proposals to do what the Congress explicitly has declined to do – expand the definition of “engaged in the business” of selling firearms to close an imaginary “gun show loophole.” All such efforts have failed to gain a majority vote in the Congress – something that really chafes anti-Second Amendment advocates like Joe Biden, who believe the default for every transfer of a firearm should be a mandatory NICS background check.
Not only has there never been a “gun show loophole,” but even if such a thing existed, according to the federal government’s own data only a very small number of illegally trafficked firearms originate at gun shows (a mere three percent according to the just-published federal “National Firearms Commerce and Trafficking Assessment”).
Despite these facts, the Biden Administration on April 8th finalized its 466-page “rule” that changes the statutory definition of “engaged in the business” of selling firearms so that, as accurately noted in an analysis of the new rule by the NRA, tens of thousands of lawful private gun sales will now be unlawful. The April 11th White House “Factsheet” proudly heralding the new gun control rule includes the requisite fearmongering about untold victims of guns acquired at gun shows without NICS background checks but who now will be saved by closing the “gun show loophole.”
The only true victim in this latest gun control maneuver, however, is the rule of law.
Bob Barr represented Georgia’s Seventh District in the U.S. House of Representatives from 1995 to 2003. He served as the United States Attorney in Atlanta from 1986 to 1990 and was an official with the CIA in the 1970s. He now practices law in Atlanta, Georgia and serves as head of Liberty Guard.
©2022 Liberty Guard, Inc. All rights reserved.
Designed and Developed by Media Bridge LLC