Deference to Congress and Boumediene

[Ilya Somin]

ONe last small federalism point:

Even if it is constitutionally permissible, based on Prof. Rosenthal's reasoning, for the feds to ban drugs originating, abroad, the same would not be true for domestically produced drugs. If federal drug laws were limited to banning the sale of foreign-produced drugs, domestic producers would surely pick up a lot of the slack. Marijuana, heroin, and most other illegal drugs can be and have been produced in various parts of the US. The cost would be greater than in the case of foreign producers, of course, but not prohibitively high.

Ilya Somin
Assistant Professor of Law
George Mason University School of Law
3301 Fairfax Dr.
Arlington, VA 22201
ph: 703-993-8069
fax: 703-993-8202
e-mail: isomin at gmu.edu
Website: http://mason.gmu.edu/~isomin/
SSRN Page: http://ssrn.com/author=333339


----- Original Message -----
From: "Rosenthal, Lawrence" <rosentha at chapman.edu>
Date: Tuesday, June 17, 2008 10:49 pm
Subject: RE: RE: RE: RE: Deference to Congress and Boumediene

> I will refrain from an extended debate on the merits of 
> legalization (except to point out that the polls on legalization 
> indicate that African-Americans take a very different view of the 
> costs and benefits of legalization than does Professor Somin).  
> For present purposes, the important point is that the drug problem 
> is really an imported drug problem, and for that reason it is, in 
> significant part, a mess of the federal government's creation.  It 
> is an odd theory of federalism that would prevent the federal 
> government from cleaning up a federal mess.
> 
> Larry Rosenthal
> Chapman University School of Law
> 
> ________________________________
> 
> From: conlawprof-bounces at lists.ucla.edu on behalf of Ilya Somin
> Sent: Tue 6/17/2008 7:16 PM
> To: Rosenthal, Lawrence
> Cc: Conlawprof at lists.ucla.edu
> Subject: Re: RE: RE: RE: Deference to Congress and Boumediene
> 
> 
> 
> I don't know if a detailed debate about drug legalization is 
> appropriate for this list. So I will make just a few points.
> 
> 1. Even for illegal drugs, most people are well aware that taking 
> them is risky. To the extent that they are not as aware as they 
> would be if the drugs were legal, this is yet another flaw of the 
> War on Drugs.
> 
> 2. Yes, there might be debates about the adequacy of federal  
> funding and state drug enforcement efforts if the federal role 
> were limited to funding. But of course we have such debates now, 
> and indeed we have federal funding of state efforts - as well as 
> direct federal efforts - in the status quo. I don't see how 
> enforcing constitutional limits on the federal role would diminish 
> accountability in any meaningful way.
> 
> 3. Most of the costs of the War on Drugs are in fact imposed on 
> the poor, not "white middle class people." The poor, especially 
> the minority poor, are the overwhelming majority of hundreds of 
> thousands who are incarcerated as a result of that war. They are 
> also the vast majority of those killed as a result of the violence 
> that arises form the creation of illegal markets (as also happened 
> during Prohibition). Finally, the poor and minorities are the main 
> victims of the diversion of law enforcement resources from 
> combatting violent crime to drug enforcement efforts.
> 
> Ilya Somin
> Assistant Professor of Law
> George Mason University School of Law
> 3301 Fairfax Dr.
> Arlington, VA 22201
> ph: 703-993-8069
> fax: 703-993-8202
> e-mail: isomin at gmu.edu
> Website: http://mason.gmu.edu/~isomin/
> SSRN Page: http://ssrn.com/author=333339
> 
> 
> ----- Original Message -----
> From: "Rosenthal, Lawrence" <rosentha at chapman.edu>
> Date: Tuesday, June 17, 2008 9:58 pm
> Subject: RE: RE: RE: Deference to Congress and Boumediene
> 
> > 1.  If drugs were legalized, perhaps we could begin to talk about
> > informed consent.  But given that they are illegal, no warnings
> > are given about the hazards of taking drugs, and a big part of the
> > market includes minors who are highly unlikely to be able to
> > assess in a sober and mature fashion the hazards of ingesting an
> > unregulated and highly addictive substance, I am perfectly willing
> > to consider those who sell drugs violent offenders in the same
> > manner as any other poisoning would generally be considered a
> > violent offense.  The fact that the poison is enjoyable addictive,
> > making it especially difficult to assess its risks, seems to me to
> > merely aggravate the offense.
> >
> > 2.  If the federal government were limited to funding state and
> > local antidrug efforts, we would have endless political debates
> > about whether federal funding was adequate and whether state and
> > local governments were using the funds effectively.  Under
> > Gonzales v. Raich, the federal government is fully politically
> > acccountable for its failure to secure the borders, as it should
> > be.  Diffusing federal accountability by limiting it to the
> > provision of antidrug grants, once again, seem to me to be an odd
> > theory of federalism.
> >
> > 3.  For nice middle class white people, the benefits of legalizing
> > drugs probably do outweigh the costs.  For impoverished
> > communities, the calculus is rather different.  It is no
> > coincidence that African Americans oppose legalization at higher
> > rates than whites.  In any event, I had thought that we ordinarily
> > leave debates over the costs and benefits of legalizing
> > potentially dangerous substances to majoritarian institutions. 
> > When it comes to whether the privilege of habeas corpus has been
> > unconstitutionally suspended, not so much.  The Constitution
> > forbids suspension (except in specified circumstances that the
> > government did not contend apply in Guantanamo) no matter what the
> > costs and benefits.
> >
> > Larry Rosenthal
> > Chapman University School of Law
> >
> >
> >
> > ________________________________
> >
> > From: conlawprof-bounces at lists.ucla.edu on behalf of Ilya Somin
> > Sent: Tue 6/17/2008 6:32 PM
> > To: Rosenthal, Lawrence
> > Cc: Conlawprof at lists.ucla.edu
> > Subject: Re: RE: RE: Deference to Congress and Boumediene
> >
> >
> >
> > If people take poison voluntarily and in full knowledge of its
> > dangerous effects, there is no violence involved on the part of
> > those who gave or sold them that poison. More fundamentally, there
> > are many activities - including drinking alcohol, smoking,
> > downhill skiing, bungee jumping, etc. - where people willingly
> > accept risks to their health in order to obtain some other
> > benefit, such as pleasure or thrills. We can argue about whether
> > the law should allow them to take such risks (I think it should).
> > But the people who market and sell these activities are not
> > "violent" in any ordinarily understood sense of the word.
> >
> > I won't go into detail on the issue of states "bearing the costs"
> > of the federal government's supposed failure to close the borders.
> > But I would note 3 points:
> >
> > 1. The feds could compensate those costs by subsidizing the
> > states, without breaching the limits of their Commerce Clause power.
> >
> > 2. Many of us think that the costs of drug prohibition outweigh
> > the benefits, whether enacted by the states or the feds.
> >
> > 3. The claim assumes that closing the borders to illegal drugs is
> > in fact possible without the kinds of draconian enforcement
> > policies that would violate many other constitutional and moral
> > values. I highly doubt that it it is, though I won't argue the
> > point in detail here.
> >
> >
> > Ilya Somin
> > Assistant Professor of Law
> > George Mason University School of Law
> > 3301 Fairfax Dr.
> > Arlington, VA 22201
> > ph: 703-993-8069
> > fax: 703-993-8202
> > e-mail: isomin at gmu.edu
> > Website: http://mason.gmu.edu/~isomin/
> > SSRN Page: http://ssrn.com/author=333339
> >
> >
> > ----- Original Message -----
> > From: "Rosenthal, Lawrence" <rosentha at chapman.edu>
> > Date: Tuesday, June 17, 2008 9:11 pm
> > Subject: RE: RE: Deference to Congress and Boumediene
> >
> > > A small correction to Ilya Somin's post on "nonviolent" drug
> > > offenders:  Most drugs that are sold illegally in this country are
> > > highly toxic and highly addictive.  I don't normally think of
> > > those who sell poison -- even highly seductive poison -- as a
> > > class of nonviolent offenders, but perhaps my view is
> > > idiosyncratic.  In addition, most drugs sold in this country were
> > > originally imported from abroad, including virtually all heroin
> > > and cocaine.  I have always thought it a strange view of
> > > federalism to say that when the federal government fails to secure
> > > the borders against dangerous drugs, the Constitution obligates
> > > the states alone to bear the resulting costs.  I know that a lot
> > > of law professors seem to take that view of federalism, but not
> > > many state and local officials (or voters) do.
> > >
> > > Larry Rosenthal
> > > Chapman University School of Law
> > >
> > > ________________________________
> > >
> > > From: conlawprof-bounces at lists.ucla.edu on behalf of Ilya Somin
> > > Sent: Tue 6/17/2008 5:52 PM
> > > To: Ilya Somin
> > > Cc: Conlawprof at lists.ucla.edu
> > > Subject: Re: RE: Deference to Congress and Boumediene
> > >
> > >
> > >
> > > A small correction:
> > >
> > > Morrison involved a civil suit, not a criminal case. However,
> > > Lopez and Raich did involve criminal law.
> > >
> > > Even more significantly, a more restrictive interpretation of the
> > > Commerce Clause could invalidate much of the federal War on Drugs.
> > > And some 55% of all inmates in federal prisons are nonviolent drug
> > > offenders. Before the New Deal expansion of the Commerce Clause,
> > > most jurists believed that the Commerce Clause alone could not
> > > justify a federal ban on the mere sale or possession of goods,
> > > which is why Prohibition required the enactment of a
> > > constitutional amendment. The massive expansion of federal power
> > > that arose from the loose post-New Deal construction of the
> > > Commerce Clause has deprived far more people of their liberties
> > > (and, in my view, with far less cause) than anything that has
> > > happened during the War on Terror.
> > >
> > > Ilya Somin
> > > Assistant Professor of Law
> > > George Mason University School of Law
> > > 3301 Fairfax Dr.
> > > Arlington, VA 22201
> > > ph: 703-993-8069
> > > fax: 703-993-8202
> > > e-mail: isomin at gmu.edu
> > > Website: http://mason.gmu.edu/~isomin/
> > > SSRN Page: http://ssrn.com/author=333339
> > >
> > >
> > > ----- Original Message -----
> > > From: Ilya Somin <isomin at gmu.edu>
> > > Date: Tuesday, June 17, 2008 8:42 pm
> > > Subject: Re: RE: Deference to Congress and Boumediene
> > >
> > > > Obviously, people's liberties were in fact at stake in Morrison,
> > > > Lopez, and Raich, since in all these cases people were 
> accused of
> > > > crimes that they could go to prison for (or, in Raich, they were
> > > > vulnerable to such charges).
> > > >
> > > > Even if this aspect of the three cases is considered fortuitous,
> > > > there are structural advantages to limiting federal power,
> > such as
> > > > getting the benefits of policy diversity, voting with your feet,
> > > > and competitition between state governments - all of which are
> > > > impaired if federal power is construed as being virtually
> > > > unlimited. I'm not suggesting that there aren't also sometimes
> > > > advantages to centralization. But it is wrong to say that in 
> cases> > > such as Lopez and Morrison and Raich,  "there wasn't 
> really any
> > > > interest on the opposite side."
> > > >
> > > > A lot of people assume that just because most state  governments
> > > > weren't much opposed to the federal laws at issue in these 
> cases,> > > that means that there wasn't any real benefit to 
> reigning them in.
> > > > But as Justice O'Connor pointed out in her opinion in New 
> York v.
> > > > United States, the point of constitutional limits on federal 
> power> > > is to benefit individual citizens, not state 
> governments (who
> > > > often have a self-interest in promoting overcentralization).
> > > >
> > > > Ilya Somin
> > > > Assistant Professor of Law
> > > > George Mason University School of Law
> > > > 3301 Fairfax Dr.
> > > > Arlington, VA 22201
> > > > ph: 703-993-8069
> > > > fax: 703-993-8202
> > > > e-mail: isomin at gmu.edu
> > > > Website: http://mason.gmu.edu/~isomin/
> > > > SSRN Page: http://ssrn.com/author=333339
> > > >
> > > >
> > >
> > >
> > >
> > _______________________________________________
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