Newspaper column: Nevada should challenge constitutionality of federal pot law

A week ago the Trump administration rescinded a series of Obama administration memos instructing federal prosecutors to back off enforcing federal marijuana laws in states that have legalized it, sending legal pot businesses into a dither, including those in Nevada.

Attorney General Jeff Sessions said he would leave it up to federal prosecutors to decide what to do when state law clashes with federal drug law. Justice Department officials said the previous administration’s stance allowed states to flout federal law.

Nevada Attorney General Adam Laxalt sent out an email saying his office is reviewing the change in the Justice Department’s stance on federal pot law enforcement and evaluating the ramifications for the state

“Although I opposed the Question 2 ballot initiative proposing the legalization of recreational marijuana in Nevada, I also pledged to defend the measure were it approved by the voters,” Laxalt stated. “Since Questions 2’s enactment, my office has vigorously defended it against two related lawsuits that threatened to slow or even halt the implementation of the law, and has further assisted with the formulation and adoption of regulations to allow dispensaries to commence sales of recreational marijuana within just six months of the law’s enactment. My office has expeditiously facilitated the implementation of the law in the face of considerable uncertainty about the status of federal enforcement activity.”

We suggest that the state’s attorney do what attorneys do: Sue.

The states aren’t flouting federal law, Congress is flouting the Constitution. If it took a constitutional amendment to allow Congress to make alcohol illegal during Prohibition, the same should be true for marijuana.

The 10th Amendment clearly 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.” Nowhere does the Constitution grant that power to Congress.

In fact, the divided Supreme Court decision upholding Congress’ power to ban marijuana is an absurdity constructed from a fatuity and makes a mockery of the principles of federalism.

In the case of Gonzales v. Raich, the high court found that Congress had the power under the Commerce Clause to prohibit a person from growing marijuana for her own consumption because it could affect interstate commerce. The court cited as precedent the New Deal-era case of Wickard v. Filburn, which said a farmer who grew wheat for his own consumption affected interstate commerce because, if he had not done so, he would’ve had to purchase wheat, thus affecting the market and price for wheat.

Thus the court essentially erased any distinction between interstate and intrastate commerce or even no commerce at all. Whatever the imagination can conjure.

 In his dissent in the pot case, Justice Clarence Thomas fumed, “Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything — and the Federal Government is no longer one of limited and enumerated powers.”

Thomas added, “This makes a mockery of (James) Madison’s assurance (in Federalist Paper No. 45) to the people of New York that the ‘powers delegated’ to the Federal Government are ‘few and defined,’ while those of the States are ‘numerous and indefinite.’”

Justice Sandra Day O’Connor also raised the issue of federalism, writing in dissent in Raich, “Relying on Congress’ abstract assertions, the Court has endorsed making it a federal crime to grow small amounts of marijuana in one’s own home for one’s own medicinal use. This overreaching stifles an express choice by some States, concerned for the lives and liberties of their people, to regulate medical marijuana differently. If I were a California citizen, I would not have voted for the medical marijuana ballot initiative; if I were a California legislator I would not have supported the Compassionate Use Act. But whatever the wisdom of California’s experiment with medical marijuana, the federalism principles that have driven our Commerce Clause cases require that room for experiment be protected in this case.”

With the court now more originalist in its composition, the arguments of Thomas and O’Connor might hold sway in a constitutional challenge of the federal marijuana law, should Laxalt and the attorneys general of the states that have legalized pot press the matter.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Trump dismisses significance of basic property rights with rant on eminent domain

Donald Tump told a Fox News anchor this past week that eminent domain is wonderful and it is perfectly acceptable to take someone’s private property and hand it over to someone else if it means creating jobs and making things better for the collective public welfare.

“I think eminent domain for massive projects, for instance, you’re going to create thousands of jobs, and you have somebody that’s in the way, and you pay that person far more — don’t forget, eminent domain, they get a lot of money, and you need a house in a certain location, because you’re going to build this massive development that’s going to employ thousands of people, or you’re going to build a factory, that without this little house, you can’t build the factory — I think eminent domain is fine,” Trump said.

He was basically agreeing with the wrong-headed majority of justices in the 5-4 decision in Kelo v. New London, which held that the city of New London could take private property if the new owners would generate more tax revenue. I did not think this country was established on the principle that the citizens are merely cash cows to be milked by their government masters.

Justice John Paul Stevens wrote in the Kelo opinion:

“The City has carefully formulated an economic development plan that it believes will provide appreciable benefits to the community, including – but by no means limited to – new jobs and increased tax revenue. As with other exercises in urban planning and development, the City is endeavoring to coordinate a variety of commercial, residential, and recreational uses of land, with the hope that they will form a whole greater than the sum of its parts. To effectuate this plan, the City has invoked a state statute that specifically authorizes the use of eminent domain to promote economic development. Given the comprehensive character of the plan, the thorough deliberation that preceded its adoption, and the limited scope of our review, it is appropriate for us, as it was in Berman, to resolve the challenges of the individual owners, not on a piecemeal basis, but rather in light of the entire plan. Because that plan unquestionably serves a public purpose, the takings challenged here satisfy the public use requirement of the Fifth Amendment.”

The public purpose was to increase tax revenue?

All rights begin with property rights. All other rights, such as freedom of speech and religion, depend on owning a place to stand and practice those rights.

Apparently Trump would have liked to have been on the receiving end of a few eminent domain decisions. “I think eminent domain is wonderful, if you’re building a highway, and you need to build, as an example, a highway, and you’re going to be blocked by a holdout, or, in some cases, it’s a holdout — just so you understand, nobody knows this better than I do, because I built a lot of buildings in Manhattan, and you’ll have 12 sites and you’ll get 11 and you’ll have the one holdout and you end up building around them and everything else, okay?” Trump said. “So, I know it better than anybody.”

For Trump it is all about the money and only about the money. “It’s not right! It’s not right,” he bleated. “Look, they get, the money — you know the way they talk, people would say ‘Oh, it’s turned over.’ It’s turned over for four or five, six, 10 times sometimes what it’s worth! People pay them a fortune. But sometimes you have people that want to hold out just for the — most of the time, I will say, I’ve done a lot of outparcels, I call them outparcels. Most of the time, they just want money, okay? It’s very rarely that they say ‘I love my house. I love my house. It’s the greatest thing ever.’ Because these people can go buy a house now that’s five times bigger, in a better location. So eminent domain, when it comes to jobs, roads, the public good, I think it’s a wonderful thing, I’ll be honest with you. And remember, you’re not taking property, you know, the way you asked the question, the way other people — you’re paying a fortune for that property. Those people can move two blocks away into a much nicer house.”

Sandra Day O’Connor anticipated the likes of the Donald in her Kelo dissent:

“Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result. ‘[T]hat alone is a just government,’ wrote James Madison, ‘which impartially secures to every man, whatever is his own.’”

The right of the individual must be protected from land grabbing socialists no matter how well intentioned they might be.

It also turns out there are practical problems with decisions like Kelo as well as philosophical.

New London seized the homes in question so Pfizer could expand its pharmaceutical operations. Instead the plant was closed and the land stands vacant a decade later.

Pfizer “facility” now is vacant, trash-strewn land.

 

 

Newspaper column: U.S. Supreme Court ruling is another push to appoint judges instead of electing them

No doubt about it, the recent U.S. Supreme Court ruling that allows Florida to bar judicial candidates from personally soliciting campaign funding is not just a blow to free speech, but is another volley in the ongoing campaign to have judges appointed by elite committees of lawyers and judges and not voted into office by ignorant citizens who don’t know a judicial canon from a howitzer.

The court ruled 5-4, with Chief Justice John Roberts joining the court’s liberal faction, against Lanell Williams-Yulee, a 2009 county court judge candidate in Tampa. The Florida’s Supreme Court reprimanded her for a mailer asking for donations.

Though the Florida Bar code does not allow candidates to solicit funds, they may set up committees to seek funding, and the candidate may send personal thank you notes to donors, which seems to obviate the whole concept of separating judicial candidates from the squalor of being beholding to donors. It is all a ruse.

Campaign flier.

The dissent in the case by Justice Antonin Scalia, joined by Justice Clarence Thomas, makes clear the court’s ulterior motives.

Scalia wrote that the Florida code “scope suggests that it has nothing to do with the appearances created by judges’ asking for money, and everything to do with hostility toward judicial campaigning. How else to explain the Florida Supreme Court’s decision to ban all personal appeals for campaign funds (even when the solicitee could never appear before the candidate), but to tolerate appeals for other kinds of funds (even when the solicitee will surely appear before the candidate)? It should come as no surprise that the ABA (American Bar Association),whose model rules the Florida Supreme Court followed when framing Canon 7C(1), opposes judicial elections — preferring instead a system in which (surprise!) a committee of lawyers proposes candidates from among whom the Governor must make his selection.”

Thirty-nine states elect judges, including Nevada. An effort in 2010 to have Nevada judges appointed failed by a 58-42 margin, despite a vigorous campaign on its behalf.

U.S. Supreme Court Justice Sandra Day O’Connor, former Nevada Supreme Court Justice Bill Maupin and former Arizona Supreme Court Justice Ruth McGregor appeared at a Las Vegas newspaper editorial board seeking support for the ballot measure. The newspaper editorially opposed it, and I wrote a column against the idea.

“I think Americans want and expect to have one safe place in government, and that’s the court,” Justice O’Connor testified before the assembled journalists, “where somebody with a legal dispute can go and have somebody deciding the issue, based on the law, who is fair, independent and qualified. And I think your best chance of getting that is with this kind of a system. And it doesn’t take away people’s right to vote, it postpones it for whatever time is set in the legislation, one or two years. And then the voter can receive the information about the judge, the performance record, and cast a more intelligent ballot. Do you want to keep the person on the bench? Yes or no.”

She was dismissive of my argument that it is harder to bribe a million voters than one governor, even though I personally knew a governor who went to prison for that.

The Wall Street Journal pointed out at the time, “States using this so-called merit selection method have had their judicial selections manipulated by lawyers and bar associations that nominate guild favorites. In most cases this has pushed courts to the activist left.”

Yes, there is a problem with voters not being well enough informed about judicial candidates, but that is partly the fault of the legal community, which sets itself up as some bastion of virtuous objectivity, prohibited from sullying its robes in the mud wrestle that is electioneering.

Scalia also noted that the Florida ruling “banning candidates from asking for money personally ‘favors some candidates over others — incumbent judges (who benefit from their current status) over non-judicial candidates, the well-to-do (who may not need to raise any money at all) over lower-income candidates, and the well-connected (who have an army of potential fundraisers) over outsiders.’ … This danger of legislated (or judicially imposed) favoritism is the very reason the First Amendment exists.”

The court majority danced around so many precedents in law — using speculative phrases like “possible temptation,” “might lead” and “even unknowingly” — that Scalia at one point exclaimed: “This is not strict scrutiny; it is sleight of hand.”

Let’s hope this ruling doesn’t give anyone in Nevada ideas.

A version of this column appears this week in the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel, the Lincoln County Record and the Sparks Tribune — and the Elko Daily Free Press.

Court ruling gagging judicial candidates really a ploy to stop electing judges

“I know no safe depositary of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power.”

Thomas Jefferson to William C. Jarvis, 1820

No doubt about it, the recent U.S. Supreme Court ruling that allows Florida to bar judicial candidates from personally soliciting campaign funding is not just a blow to free speech, but is another volley in the ongoing campaign to have judges appointed by elite committees of lawyers and judges and not voted into office by ignorant citizens who don’t know a judicial canon from a howitzer.

The court ruled 5-4, with Chief Justice John Roberts joining the court’s liberal faction, against Lanell Williams-Yulee, a 2009 county court judge candidate in Tampa. The Florida’s Supreme Court reprimanded her for a mailer asking for donations.

The offending flier

Though the Florida Bar code does not allow candidates to solicit funds, they may set up committees to seek funding, and the candidate may send personal thank you notes to donors, which seems to obviate the whole concept of separating judicial candidates from the squalor of being beholding to donors. It is all a ruse.

The dissent in the case by Justice Antonin Scalia, joined by Justice Clarence Thomas, makes clear the court’s ulterior motives.

Scalia wrote that the Florida code “scope suggests that it has nothing to do with the appearances created by judges’ asking for money, and everything to do with hostility toward judicial campaigning. How else to explain the Florida Supreme Court’s decision to ban all personal appeals for campaign funds (even when the solicitee could never appear before the candidate), but to tolerate appeals for other kinds of funds (even when the solicitee will surely appear before the candidate)? It should come as no surprise that the ABA (American Bar Association),whose model rules the Florida Supreme Court followed when framing Canon 7C(1), opposes judicial elections — preferring instead a system in which (surprise!) a committee of lawyers proposes candidates from among whom the Governor must make his selection.”

Thirty-nine states elect judges, including Nevada. An effort in 2010 to have Nevada judges appointed failed by a 58-42 margin, despite a vigorous campaign on its behalf.

U.S. Supreme Court Justice Sandra Day O’Connor, former Nevada Supreme Court Justice Bill Maupin and former Arizona Supreme Court Justice Ruth McGregor appeared at a Las Vegas newspaper editorial board seeking support for the ballot measure. The newspaper editorially opposed it, and I wrote a column against the idea.

“I think Americans want and expect to have one safe place in government, and that’s the court,” Justice O’Connor testified before the assembled journalists, “where somebody with a legal dispute can go and have somebody deciding the issue, based on the law, who is fair, independent and qualified. And I think your best chance of getting that is with this kind of a system. And it doesn’t take away people’s right to vote, it postpones it for whatever time is set in the legislation, one or two years. And then the voter can receive the information about the judge, the performance record, and cast a more intelligent ballot. Do you want to keep the person on the bench? Yes or no.”

She was dismissive of my argument that it is harder to bribe a million voters than one governor, even though I personally knew a governor who went to prison for that.

The Wall Street Journal pointed out at the time, “States using this so-called merit selection method have had their judicial selections manipulated by lawyers and bar associations that nominate guild favorites. In most cases this has pushed courts to the activist left.”

Yes, there is a problem with voters not being well enough informed about judicial candidates, but that is partly the fault of the legal community, which sets itself up as some bastion of virtuous objectivity, prohibited from sullying its robes in the mud wrestle that is electioneering.

The current ruling in Florida case runs counter to a Supreme Court ruling in the case of Republican Party of Minnesota v. White, in which the court said judicial canons limiting judges’ ability to address legal and political issues violates the First Amendment. Asking for money is also a free speech right.

If selection panels are needed to help a governor appoint and evaluation panels are needed to give voters information about whether or not to retain a judge, why not create them informally and present the information directly to the voters? I asked at the time.

Scalia also noted that the Florida ruling “banning candidates from asking for money personally ‘favors some candidates over others — incumbent judges (who benefit from their current status) over non-judicial candidates, the well-to-do (who may not need to raise any money at all) over lower-income candidates, and the well-connected (who have an army of potential fundraisers) over outsiders.’ … This danger of legislated (or judicially imposed) favoritism is the very reason the First Amendment exists.”

The court majority danced around so many precedents in law — using speculative phrases like “possible temptation,” “might lead” and “even unknowingly” — that Scalia at one point exclaimed: “This is not strict scrutiny; it is sleight of hand.”

This 2010 commercial supported appointing judges: