Dangerous implications of the Nebraska-Oklahoma lawsuit against marijuana legalization in Colorado

"What's being regulated is the carriers themselves and the rates they charge, not the objects of commerce that they carry."

In that particular court case, yes. But the key point is Congress may regulate intrastate rates if they affect the interstate rates that Congress is regulating.

You would agree, however, that the objects of commerce are affected by the rates?

You would agree, however, that the objects of commerce are affected by the rates?

The objects themselves are not. The buyers and sellers are.

But the key point is Congress may regulate intrastate rates if they affect the interstate rates that Congress is regulating.

Congress did not regulate the intrastate rates. They regulated the interstate rates. The corresponding affect on intrastate rates was do to the way the rate schedule was contrived by the railroad. The could have kept the intrastate rates the same in spite of the regulations being imposed on the interstate rates. They simply chose not to.

Where exactly in the Constitution is the specific, enumerated power for the Federal government to regulate this plant?

No emanations from penumbras, please.

"The could have kept the intrastate rates the same in spite of the regulations being imposed on the interstate rates. They simply chose not to."

You say you read this case?

Some carriers were inflating their interstate rates to offset their deflated intrastate rates, making intrastate-only carriers non-competitive. Since there was a direct relationship between the rates, Congress needed to regulate both.

The way I read the decision, they just said the carrier couldn't charge the interstate customers more than the intrastate customers. The carriers could have complied by lowering the interstate rates to match the intrastate rates. That would probably have resulted in them operating at a loss, but that decision was still in their hands.

Already answered: "I maintain that part of the genius of the Founding Fathers was to compose a Constitution that could be understood by any well-read citizen, so we have no need to rely on lawyers, legal scholars, or even justices to tell us what is and is not in accord with the Constitution."

Marbury v Madison assigned the final word to the U.S. Supreme Court. Someone has to make a decision as to what is and what is not constitutional.

You say it should be the citizens?

No, I say it is manifestly not "nonsensical" to call unconstitutional that which the Supremes have ruled constitutional, as you claim it is. What we do about unconstitutional Supreme Court rulings is another question.

The feds have grounds to get warrants for further investigation

They'd need probable cause for that. Which they don't have.

Sez you.

legal regulated sellers of any good keep the standard sorts of records.

just how detailed are these "records" -- would you insist on the names and addresses of all the buyers

I wouldn't "insist" nor have the feds insist on anything - records exist and can in many cases further an investigation.

you're the one with the strawman, setting up "legally regulated sellers" as the only ones selling marijuana across state lines.

No, the point is that illegal interstate sales occur now, so are irrelevant to the issue of legalizing intrastate sales.

that ruling doesn't imply that Congress CAN regulate intrastate commerce that DOES have an effect on other states

Then there would have been no need to even mention it. But it was mentioned. Why?

I answered that in the text you omitted:

'In fact, the reason for noting this nonexhaustive example of restriction on federal power was to illustrate that even this narrow example would be effectively nullified by Ogden's argument that the state of New York had "a concurrent power to regulate commerce": "To sustain the interference of the State, in a high concern of maritime commerce, the argument adopts a principle which acknowledges the right of Congress, over a vast scope of internal legislation, which no one has heretofore supposed to be within its powers. But this is not all; for it is admitted, that when Congress and the States have power to legislate over the same subject, the power of Congress, when exercised, controls or extinguishes the State power; and, therefore, the consequence would seem to follow, from the argument, that all State legislation, over such subjects as have been mentioned, is, at all times, liable to the superior power of Congress; a consequence, which no one would admit for a moment." (emphasis added)'

Gibbons v Ogden was brought up simply because it was the earliest reference to "an effect on other states" that I could find. The Shreveport Rate Cases (1914 -- decades before FDR) was much more definitive:

"Wherever the interstate and intrastate transactions of carriers

How are carriers relevant to the matter at hand/

Your bootlicking is noted and mocked.

Now, now. Just because I pointed out the utter unthinking foolishness and inanity of your remark

The utter unthinking foolishness and inanity is yours in implying that it's federal regulation or a free-for-all.

That doesn't support your statement, since the actions you cite are explcitly authorized by the Constitution, which a general alcohol ban is not.

The Commerce Clause gives Congress the power to regulate commerce "with foreign Nations, and among the several States, and with the Indian tribes."

Are you saying that Congress can regulate (ban) commerce (sales of alcohol) with the Indian tribes but not among the several states?

I'm saying that neither enumerated power implies a power to ban alcohol within states.

"No, I say it is manifestly not "nonsensical" to call unconstitutional that which the Supremes have ruled constitutional, as you claim it is."

Then we differ. Once the U.S. Supreme Court rules constitutional, it's constitutional. By definition.

Now you may disagree with the ruling, but that changes nothing.

"No, the point is that illegal interstate sales occur now, so are irrelevant to the issue of legalizing intrastate sales."

Illegal interstate sales occurring now can be prosecuted. Your proposal would make those prosecutions impossible for the reasons I mentioned.

"How are carriers relevant to the matter at hand/"

They're not. But the court ruling is.

"I'm saying that neither enumerated power implies a power to ban alcohol within states."

Well, if Congress has the power to ban alcohol with the Indian tribes, they can certainly ban alcohol among the several states since both are mentioned in the Commerce Clause.

No, I say it is manifestly not "nonsensical" to call unconstitutional that which the Supremes have ruled constitutional, as you claim it is.

Then we differ. Once the U.S. Supreme Court rules constitutional, it's constitutional. By definition.

Wrong - the definition of "constitutional" is "provided by, in accordance with, or not prohibited by, a constitution" - http://dictionary.reference.com/browse/constitutional

And FR usage conforms with the dictionary definition: many FReepers agree that Roe v Wade and Obamacare are unconstitutional, U.S. Supreme Court rulings to the contrary notwithstanding.

Now you may disagree with the ruling,

On what basis, if not lack of conformity with the constitution? If one disagrees with a ruling because one considers it bad policy, one has misunderstood the proper role of the judiciary, which is not to make policy.

but that changes nothing.

Noting lack of conformity with the constitution is not sufficient to change anything, but without such noting where is the motivation or argument to change anything?

No, the point is that illegal interstate sales occur now, so are irrelevant to the issue of legalizing intrastate sales.

Illegal interstate sales occurring now can be prosecuted. Your proposal would make those prosecutions impossible for the reasons I mentioned.

Not impossible, as I showed.

How are carriers relevant to the matter at hand?

They're not. But the court ruling is.

False. The ruling was specific to carriers - the text you quoted showed as much.

I'm saying that neither enumerated power implies a power to ban alcohol within states.

Well, if Congress has the power to ban alcohol with the Indian tribes, they can certainly ban alcohol among the several states since both are mentioned in the Commerce Clause.

But they have no power to ban alcohol within states, since that is notably excluded from the Commerce Clause.

"many FReepers agree that Roe v Wade and Obamacare are unconstitutional"

Meaning what? That they are unconstitutional? There are at least as many people who think those rulings are constitutional. Now what?

The U.S. Supreme Court is the final arbiter. If there is an issue pending before the court, however, feel free to call that issue the way you see it.

"but without such noting where is the motivation or argument to change anything?"

By saying you disagree with the ruling and by proposing a solution. Otherwise you're simply whining.

"Not impossible, as I showed."

You showed me harassment of citizens who have broken no law.

"False. The ruling was specific to carriers - the text you quoted showed as much."

And Wickard v Filburn was specific to wheat. Come on. You're smarter than that.

"But they have no power to ban alcohol within states, since that is notably excluded from the Commerce Clause."

Intrastate alcohol sales have an effect on the interstate alcohol sales that Congress is constitutionally regulating. Without regulating intrastate alcohol sales, Congress cannot exercise their Commerce Clause power.

If you didn't have an agenda, you'd admit that. But anyone who'd facilitate mid-air collisions in pursuit of said agenda is not going to admit anything.

many FReepers agree that Roe v Wade and Obamacare are unconstitutional

Meaning what?

Meaning, as I said and you omitted from your reply, that the dictionary and FR usage agree that is manifestly not "nonsensical" to call unconstitutional that which the Supremes have ruled constitutional, as you claim it is.

The U.S. Supreme Court is the final arbiter.

I never said otherwise - and I did say, "What we do about unconstitutional Supreme Court rulings is another question."

but without such noting where is the motivation or argument to change anything?

By saying you disagree with the ruling and by proposing a solution. Otherwise you're simply whining.

If someone denies the nature of the problem - by e.g. saying it's nonsensical to call U.S. Supreme Court rulings unconstitutional - correcting their error is not "whining" but a necessary precursor to agreeing on a solution.

Not impossible, as I showed.

You showed me harassment of citizens who have broken no law.

Innocent citizens can be and sometimes are investigated for breaking all sorts of laws - if that's "harassment" then we can have no laws at all.

False. The ruling was specific to carriers - the text you quoted showed as much.

And Wickard v Filburn was specific to wheat.

No it wasn't - USSC rulings have been both broad and narrow, and Wickard v Filburn was explicitly broad:

"questions of the power of Congress are not to be decided by reference to any formula which would give controlling force to nomenclature such as 'production' and 'indirect' and foreclose consideration of the actual effects of the activity in question upon interstate commerce. [...] But even if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as 'direct' or 'indirect.'"

In sharp contrast, the Shreveport Rate Cases ruling asserts the authority of Congress only with specific reference to shipping rates - and its only broader language is to limit the ends for which that authority is meant to be used:

"Interstate trade was not left to be destroyed or impeded by the rivalries of local government. The purpose was to make impossible the recurrence of the evils which had overwhelmed the Confederation, and to provide the necessary basis of national unity by insuring 'uniformity of regulation against conflicting and discriminating state legislation.'"

But they have no power to ban alcohol within states, since that is notably excluded from the Commerce Clause.

Intrastate alcohol sales have an effect on the interstate alcohol sales that Congress is constitutionally regulating. Without regulating intrastate alcohol sales, Congress cannot exercise their Commerce Clause power.

As previously established, this claim is purely speculative, as no substantive attempt had been made before or since to control interstate traffic without instrastate control.

anyone who'd facilitate mid-air collisions

Sticking to your bootlicking assumption that it's federal regulation or a free-for-all, I see.

The U.S. Supreme Court is the final arbiter."
"I never said otherwise ..."

So we agree -- when the U.S. Supreme Court rules that something is constitutional, it's constitutional. Let's move on.

"Innocent citizens can be and sometimes are investigated for breaking all sorts of laws"

Of course. It's all part of the process of determining guilt or innocence.

But you're proposing the harassment of citizens who you know have broken no law.

"by insuring 'uniformity of regulation against conflicting and discriminating state legislation.'"

State laws legalizing marijuana are not "conflicting and discriminating" with federal laws?

"In sharp contrast, the Shreveport Rate Cases ruling asserts the authority of Congress only with specific reference to shipping rates"

It wasn't that narrow. As a matter of fact, the Wickard court used it to support their decision.

"as no substantive attempt had been made before or since to control interstate traffic without instrastate control."

Well, as we have seen, you attribute any failure to a lack of a "substantive attempt". As I pointed out with alcohol, intrastate control was tried and failed. In addition, intrastate control is failing with marijuana -- the subject of the above article.

"Sticking to your bootlicking assumption that it's federal regulation or a free-for-all, I see."

I prefer to call it a pragmatic approach. But if you have a better solution, I'm all ears. Who knows? I just might end up agreeing with you.

The U.S. Supreme Court is the final arbiter.

I never said otherwise

So we agree -- when the U.S. Supreme Court rules that something is constitutional, it's constitutional.

That doesn't follow from what we do agree on - and the dictionary and FR usage contradict it.

you're proposing the harassment of citizens who you know have broken no law.

Baloney. In exactly what words have I proposed that?

by insuring 'uniformity of regulation against conflicting and discriminating state legislation.'

State laws legalizing marijuana are not "conflicting and discriminating" with federal laws?

Of course they're not "discriminating with" federal laws - what would that even mean? Obviously "conflicting and discriminating state legislation" means conflicting with and discriminating against other states and their laws.

In sharp contrast, the Shreveport Rate Cases ruling asserts the authority of Congress only with specific reference to shipping rates

It wasn't that narrow.

Then you can quote it to the contrary.

As a matter of fact, the Wickard court used it to support their decision.

That a later court broadens an earlier narrow ruling makes the earlier ruling itself no less narrow.

as no substantive attempt had been made before or since to control interstate traffic without instrastate control.

Well, as we have seen, you attribute any failure to a lack of a "substantive attempt". As I pointed out with alcohol, intrastate control was tried

As I showed, it was not in any substantive sense "tried." Let me refresh your distressingly spotty memory: 'According to President Nixon's National Commission on Marihuana and Drug Abuse, "The lack of federal enforcement rendered the statute [the Webb-Kenyon Act] virtually meaningless."'

intrastate control is failing with marijuana -- the subject of the above article.

That intrastate control is having any less success than interstate control is utterly unproven.

Sticking to your bootlicking assumption that it's federal regulation or a free-for-all, I see.

I prefer to call it a pragmatic approach. But if you have a better solution, I'm all ears. Who knows? I just might end up agreeing with you.

State regulation, and airlines' voluntary cooperation, spring to the mind of any true conservative.

"That doesn't follow from what we do agree on - and the dictionary and FR usage contradict it."

Gobbledygook. If the U.S. Supreme Court is the final arbiter, their ruling stands.

"Of course they're not "discriminating with" federal laws - what would that even mean?"

I'll rephrase. State laws legalizing marijuana are not conflicting with and discriminating against federal laws? The goal of "uniformity of regulation" cannot be met if states are allowed to set the rules.

" Then you can quote it to the contrary."

If the Shreveport ruling only applied to shipping rates, the Wickard court couldn't have applied it to wheat.

"That intrastate control is having any less success than interstate control is utterly unproven."

Nebraska and Oklahoma would disagree.

"State regulation, and airlines' voluntary cooperation, spring to the mind of any true conservative."

Sure. Each of the 50 states could have their own aircraft control system for intrastate flights, in addition to the FAA controlling interstate flights. Takeoffs and landings would be a challenge. You'd prefer that?

What's next? The FDA?

when the U.S. Supreme Court rules that something is constitutional, it's constitutional.

That doesn't follow from what we do agree on - and the dictionary and FR usage contradict it.

Gobbledygook. If the U.S. Supreme Court is the final arbiter, their ruling stands.

And yet can be unconstitutional, as the dictionary and FR usage show. Your insistence that I use your personal dictionary gets ever sillier.

Of course they're not "discriminating with" federal laws - what would that even mean?

I'll rephrase. State laws legalizing marijuana are not conflicting with and discriminating against federal laws?

As I said, 'Obviously "conflicting and discriminating state legislation" means conflicting with and discriminating against other states and their laws.'

The goal of "uniformity of regulation" cannot be met if states are allowed to set the rules.

You prove too much - complete uniformity of regulation would require that the feds set ALL rules.

The entire quotation makes clear that the purpose of the Commerce Clause is to prevent state-versus-state battles, and that not all nonuniformity qualifies as such: "Interstate trade was not left to be destroyed or impeded by the rivalries of local government. The purpose was to make impossible the recurrence of the evils which had overwhelmed the Confederation, and to provide the necessary basis of national unity by insuring 'uniformity of regulation against conflicting and discriminating state legislation.'" (emphasis added)

Then you can quote it to the contrary.

If the Shreveport ruling only applied to shipping rates, the Wickard court couldn't have applied it to wheat.

Still wrong - as I said, "That a later court broadens an earlier narrow ruling makes the earlier ruling itself no less narrow."

That intrastate control is having any less success than interstate control is utterly unproven.

Nebraska and Oklahoma would disagree.

Nebraska and Oklahoma offer as evidence only the assertion that "Plaintiff States’ law enforcement encounters [Colorado] marijuana on a regular basis as part of day-to-day duties" (http://www.scribd.com/doc/250506006/Nebraska-Oklahoma-lawsuit) - not even a pretense of showing that Colorado pot has added to rather than displaced other sources of pot. Color me unimpressed.

State regulation, and airlines' voluntary cooperation, spring to the mind of any true conservative.

Sure. Each of the 50 states could have their own aircraft control system for intrastate flights, in addition to the FAA controlling interstate flights. Takeoffs and landings would be a challenge. You'd prefer that?

A challenge? Oh, fetch the smelling salts - much better that we abandon the Founders' vision in favor of a federal Leviathan.

What's next? The FDA?

Yes, they also should stay out of intrastate commerce - as little of that as there may be in food and drugs.

The U.S. Supreme Court rules a law constitutional, the U.S. Supreme Court is the final arbiter, yet the law can still be unconstitutional.

Got it. Does that mean we can ignore the law?

"You prove too much - complete uniformity of regulation would require that the feds set ALL rules."

Not at all. Only where the feds are regulating interstate commerce.

"The entire quotation makes clear that the purpose of the Commerce Clause is to prevent state-versus-state battles"

Yes, but not necessarily by Congress' intervention. For decades, states resolved issues between themselves in a lower federal court using the "dormant" commerce clause -- Congress can't get involved in every petty dispute between states.

"Thus, in a dormant Commerce Clause case, a court is initially concerned with whether the law facially discriminates against out-of-state actors or has the effect of favoring in-state economic interests over out-of-state interests."

This would apply perfectly to the Shreveport Rate Cases.

The U.S. Supreme Court only got involved in this case because Congress was actively regulating interstate rates. So the court ruled they could also regulate intrastate rates.

There aren’t any implications until the trial is over. And the plaintiff states will probably lose.

The U.S. Supreme Court rules a law constitutional, the U.S. Supreme Court is the final arbiter, yet the law can still be unconstitutional.

Got it.

Glad you're finally in line with the dictionary definition and FR usage (cf. Roe v Wade, Obamacare). Shame it took so long.

Does that mean we can ignore the law?

No. As I've explained more than once now, "What we do about unconstitutional Supreme Court rulings is another question."

The entire quotation makes clear that the purpose of the Commerce Clause is to prevent state-versus-state battles

Yes, but not necessarily by Congress' intervention. For decades, states resolved issues between themselves in a lower federal court using the "dormant" commerce clause -- Congress can't get involved in every petty dispute between states.

"Thus, in a dormant Commerce Clause case, a court is initially concerned with whether the law facially discriminates against out-of-state actors or has the effect of favoring in-state economic interests over out-of-state interests."

This would apply perfectly to the Shreveport Rate Cases.

The U.S. Supreme Court only got involved in this case because Congress was actively regulating interstate rates. So the court ruled they could also regulate intrastate rates.

Fascinating bit of legal history. But I don't see its relevance to the point that the Shreveport Rate Cases ruling asserts the authority of Congress only with specific reference to shipping rates - and that its only broader language is to limit the ends for which that authority is meant to be used, namely preventing state-versus-state battles (which does not include all nonuniformity among states):

"Interstate trade was not left to be destroyed or impeded by the rivalries of local government. The purpose was to make impossible the recurrence of the evils which had overwhelmed the Confederation, and to provide the necessary basis of national unity by insuring 'uniformity of regulation against conflicting and discriminating state legislation.'" (emphasis added)

"Glad you're finally in line with the dictionary definition and FR usage"

In line? Hardly. I'm simply saying I understand your definition of unconstitutional.

I don't agree with it, since I don't believe the Founders had access to a modern dictionary and "FR usage" -- whatever that is. But hey. Let's all be thankful "true" constitutionality isn't determined by "DU usage", huh?

"What we do about unconstitutional Supreme Court rulings is another question."

As we go further down the rabbit hole ...

What happened to "No one is bound to obey an unconstitutional law and no courts are bound to enforce it"? If you're going to obey an unconstitutional law, then what's your point?

"Interstate trade was not left to be destroyed or impeded by the rivalries of local government. The purpose was to make impossible the recurrence of the evils which had overwhelmed the Confederation, and to provide the necessary basis of national unity by insuring 'uniformity of regulation against conflicting and discriminating state legislation.'" (emphasis added)"

You keep citing that. The court was simply making a general point. Try addressing this instead:

"The fact that carriers are instruments of intrastate commerce, as well as of interstate commerce, does not derogate from the complete and paramount authority of Congress over the latter, or preclude the Federal power from being exerted to prevent the intrastate operations of such carriers from being made a means of injury to that which has been confided to Federal care. Wherever the interstate and intrastate transactions of carriers* are so related that the government of the one involves the control of the other, it is Congress, and not the state, that is entitled to prescribe the final and dominant rule, for otherwise Congress would be denied the exercise of its constitutional authority, and the state, and not the nation, would be supreme within the national field."

* Substitute "wheat" or "drugs" or "air traffic" for "carriers" and you have your U.S. Supreme Court precedent.

Glad you're finally in line with the dictionary definition and FR usage

In line? Hardly. I'm simply saying I understand your definition of unconstitutional.

I don't agree with it, since I don't believe the Founders had access to a modern dictionary

Ah, so now you're implying that the Founders' definition of "constitutional" was different? Have any evidence to back that up? ... Keeping in mind that the principle of judicial review was not formalized until Marbury v Madison in 1803.

and "FR usage" -- whatever that is.

The meaning with which a term is used on FR. Did you really not know that?

But hey. Let's all be thankful "true" constitutionality isn't determined by "DU usage", huh?

I'm sure on DU they agree with your definition, because your definition has for generations been favorable to the left. Most FReepers don't agree that the USSC has the authority to effectively rewrite the Constitution with "emanations" or "penumbras" - or "substantial effects".

What we do about unconstitutional Supreme Court rulings is another question.

As we go further down the rabbit hole ...

What happened to "No one is bound to obey an unconstitutional law and no courts are bound to enforce it"? If you're going to obey an unconstitutional law, then what's your point?

I'm not sure what you're asking here. If one wants to act contrary to federal drug statutes on the grounds that they are unconstitutional and therefore null and void (and/or to make that point to those who say Scripture commandds that we obey the authorities), more power to them - but I can't fault anyone who prudentially decides that they'd rather avoid the penalties that practically can follow from such action.

"Interstate trade was not left to be destroyed or impeded by the rivalries of local government. The purpose was to make impossible the recurrence of the evils which had overwhelmed the Confederation, and to provide the necessary basis of national unity by insuring 'uniformity of regulation against conflicting and discriminating state legislation.'" (emphasis added)

You keep citing that. The court was simply making a general point.

The only general point it made - which is my point.

Try addressing this instead:

Already addressed several times: "the Shreveport Rate Cases ruling asserts the authority of Congress only with specific reference to shipping rates".

"The fact that carriers are instruments of intrastate commerce, as well as of interstate commerce, does not derogate from the complete and paramount authority of Congress over the latter, or preclude the Federal power from being exerted to prevent the intrastate operations of such carriers from being made a means of injury to that which has been confided to Federal care. Wherever the interstate and intrastate transactions of carriers* are so related that the government of the one involves the control of the other, it is Congress, and not the state, that is entitled to prescribe the final and dominant rule, for otherwise Congress would be denied the exercise of its constitutional authority, and the state, and not the nation, would be supreme within the national field." [emphasis added]

* Substitute "wheat" or "drugs" or "air traffic" for "carriers" and you have your U.S. Supreme Court precedent.

Why would I so substitute when the authors of the ruling did not? This was a narrow ruling. (That a later court broadens an earlier narrow ruling makes the earlier ruling itself no less narrow.)