Deference to Congress and Boumediene

Ilya Somin isomin at gmu.edu
Tue Jun 17 21:03:27 PDT 2008 

For those who may be interested, I criticize  Scalia's argument in this article (pp. 529-31):

http:papers.ssrn.com/sol3/papers.cfm?abstract_id=916965

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 11:35 pm
Subject: RE: RE: RE: RE: RE: Deference to Congress and Boumediene

> I had thought that Justice Scalia's concurrence in Raich put this 
> argument to rest.
> 
> Larry Rosenthal
> Chapman University School of Law
> 
> 
> ________________________________
> 
> From: conlawprof-bounces at lists.ucla.edu on behalf of Ilya Somin
> Sent: Tue 6/17/2008 8:03 PM
> To: Rosenthal, Lawrence
> Cc: Conlawprof at lists.ucla.edu
> Subject: Re: RE: RE: RE: RE: Deference to Congress and Boumediene
> 
> 
> 
> 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
> > > > >
> > > > >
> > > >
> > > >
> > > >
> > > _______________________________________________
> > > To post, send message to Conlawprof at lists.ucla.edu
> > > To subscribe, unsubscribe, change options, or get password, see
> > > http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
> > >
> > > Please note that messages sent to this large list cannot be viewed
> > > as private.  Anyone can subscribe to the list and read messages
> > > that are posted; people can read the Web archives; and list
> > > members can (rightly or wrongly) forward the messages to others.
> > >
> > >
> > >
> > _______________________________________________
> > To post, send message to Conlawprof at lists.ucla.edu
> > To subscribe, unsubscribe, change options, or get password, see
> > http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
> >
> > Please note that messages sent to this large list cannot be viewed
> > as private.  Anyone can subscribe to the list and read messages
> > that are posted; people can read the Web archives; and list
> > members can (rightly or wrongly) forward the messages to others.
> >
> >
> >
> _______________________________________________
> To post, send message to Conlawprof at lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see 
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
> 
> Please note that messages sent to this large list cannot be viewed 
> as private.  Anyone can subscribe to the list and read messages 
> that are posted; people can read the Web archives; and list 
> members can (rightly or wrongly) forward the messages to others.
> 
> 
>

More information about the Conlawprof mailing list