PayrollHRGuy
Well-Known Member
About 90 percent (yes I pulled that number out of my butt) of the laws Congress passes delegate powers to the President or the head of an executive branch agency or department.
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cannabis and the commerce clause
- Thread Starter Green River Hemp Farm
- Start date
About 90 percent (yes I pulled that number out of my butt) of the laws Congress passes delegate powers to the President or the head of an executive branch agency or department.
zddoodah
Well-Known Member
Then why did your original post focus on the Commerce Clause? That provision of the U.S. Constitution is not the slightest bit relevant to criminal charges brought under state law (unless you're making a negative/dormant Commerce Clause argument, which you aren't and wouldn't want to do).
It's Gonzales v. Raich, 545 U.S. 1 (2005). Like Morrison and Lopez, it's a case about Congress's authority under the Commerce Clause and, as such, has no relevance to a state-level criminal prosecution. And, it's a particularly unfavorable case for you because it held that the Commerce Clause allowed Congress to criminalize the production and use of homegrown cannabis even where it is permitted by state law for medicinal purposes.
It's one thing to make a mistake once, but then to make it a second time two paragraphs after noting that you made the mistake is rather inconceivable. In any event, Raich was decided in 2005, and Morrison was decided in 2000 -- five years earlier. It is therefore impossible for Morrison to have "effectively overturned" Raich.
No it isn't. The Commerce Clause hasn't changed one iota since the Constitution was written over 230 years ago.
You're certainly entitled to your opinion (and, since three Justices dissented from the holding in Raich, including one who is still on the Court, you'd hardly be alone). However, your disagreement with the holding is meaningless, and the case is the law of the land, and every lower court is obligated to follow it. One day, the Supreme Court might reverse itself, but that's not going to happen anytime soon.
None of that makes any sense at all.
That number isn't even close to being accurate.
Tax Counsel
Well-Known Member
If the prosecution is by the state for a violation of state law then the commerce clause is completely irrelevant as the commerce clause is only a limitation on the FEDERAL government, not the state. So if you bring a commerce clause challenge in a state prosecution case that will go very badly for you.
Green River Hemp Farm
New Member
I think the framers gave congress the sole authority over commerce for very good reason.
The police (DEA in this case) should not be part of process that determines the severity of a crime. They would have a clear conflict and benefit from harsher laws and penalties that increase or maintain their budgets which they receive from congress. With cannabis laws, asset forfeiture is involved and they receive additional funds as a result as well. Indeed law enforcement including corrections officers has lobbied for cannabis laws to remain in place. DEA and HHS has stood in the way of research and reforms. They have consistently refused to fund studies into the benefits of cannabis while encouraging studies into the harms. They have waged information campaigns even pushing false information on the public. The whole system benefits from additional police and hardware, probation and parole officers, judges etc. If there are additional laws based on the commerce clause alone other than cannabis laws I would assert the same argument.
The states model their laws after the federal laws very often, so the federal scheduling policy effectively transfers down to the states laws as well. Why is a law only supported by the commerce clause not civil in nature as opposed to criminal? In light of the evolving understanding and the science and medicinal value of cannabis both in hemp and a new definition of cannabis (the new law in Illinois no longer includes hemp in the definition of cannabis). Hemp is defined as containing less than .3% thc. So in short cannabis is defined as containing over .3% thc, or what is commonly referred to as marijuana and hemp is not
If this is considered "due process" then I think it should be reexamined.
The police (DEA in this case) should not be part of process that determines the severity of a crime. They would have a clear conflict and benefit from harsher laws and penalties that increase or maintain their budgets which they receive from congress. With cannabis laws, asset forfeiture is involved and they receive additional funds as a result as well. Indeed law enforcement including corrections officers has lobbied for cannabis laws to remain in place. DEA and HHS has stood in the way of research and reforms. They have consistently refused to fund studies into the benefits of cannabis while encouraging studies into the harms. They have waged information campaigns even pushing false information on the public. The whole system benefits from additional police and hardware, probation and parole officers, judges etc. If there are additional laws based on the commerce clause alone other than cannabis laws I would assert the same argument.
The states model their laws after the federal laws very often, so the federal scheduling policy effectively transfers down to the states laws as well. Why is a law only supported by the commerce clause not civil in nature as opposed to criminal? In light of the evolving understanding and the science and medicinal value of cannabis both in hemp and a new definition of cannabis (the new law in Illinois no longer includes hemp in the definition of cannabis). Hemp is defined as containing less than .3% thc. So in short cannabis is defined as containing over .3% thc, or what is commonly referred to as marijuana and hemp is not
If this is considered "due process" then I think it should be reexamined.
Green River Hemp Farm
New Member
Thanks for pointing out what I should have realized as the obvious flaw of mixing up the order of the cases I was attempting to refer to. Raich overturned the other. I still disagree with the majority for what little that's worth.......that and $1.50 I'll get u a cup of coffee.
mightymoose
Moderator
You have a problem with chronology here. If one effects the other, the most recent one modifies the one preceding it.
However in these examples you are not comparing apples to apples. While both concerned the commerce clause the two cases addressed very different circumstances.
The commerce clause has long arms.
As I recall, the court's position is that private production does have a tangential impact on interstate commerce. Farmers growing their own private crops have dealt with this in the past and been disappointed. See Wickard v Filburn. I believe this is where your dispute is rooted.
I recall another regarding corn but it may have actually been a patent.case.
I think you will have a difficult time making that argument. The delegation of powers is how our government functions.
mightymoose
Moderator
It seems you misunderstand what due process is.
As others have noted, your commerce clause argument has nothing to do with state level charges. Is the DEA involved with your case, or is there any other federal law enforcement aspect?
mightymoose
Moderator
No. One had no effect on the other..
Green River Hemp Farm
New Member
In post number 24 I attempted to explain the connection revolving around scheduling. What clause of the Illinois constitution would the law be based on if not the state commerce clause
they used completely different definitions of commerce in Morrison then Raich. That is the only connection I was referring to. Nothing is beyond the powers of the commerce clause apparently and as I am reading in article 2 section 2 of Illinois constitution that apparently the powers of the are unlimited. ........Obviously I feel this is an unreasonable application. The amendments offer many contradictions however. The decision in Raich also apparently used a unique interpretation of having a substantial effect on interstate commerce. One that I disagree with. The compelling interest thing seems ridiculous as well especially considering the recently changing definitions of "cannabis". Cannabis has been previously prohibited regardless of wether it is even psychoactive or not. The 2018 farm bill changed that and now Illinois is changing all that as well Wickard was very different in that wheat was not prohibited and the amount was the key issue. The penalties was relatively light and only involved a fine as compared to a class x felony in Illinois as well asset forfeiture laws. The "no excepted medicinal value" is particularly in conflict with Illinois law. The dept of agriculture has the bureau of medicinal plants. The only plant is cannabis. They license medical growers, dispensaries, processors, hemp growers, medical cards, and charge lic. Fees and taxes. Since my arrest I have been able to qualify for a medical card, a hemp growers lic. And a processing lic. I currently have well over 1000 lbs that I grew in plain site. Every cop in the county is aware I imagine. When I was arrested I could not get any of the licenses I hold now and cannabis had a different definition in Illinois. CBD was already being sold and was dropped from the federal definition. I realize that the law at the time may be the only relevant part but...................it makes me wanna pull my hair out....if I had any
zddoodah
Well-Known Member
The Framers did not give Congress "the sole authority over commerce," and I'm starting to think you don't understand what the Commerce Clause is.
The Commerce Clause is part of section 8 of Article I of the U.S. Constitution. Articles I, II and III of the Constitution concern, respectively, the legislative, executive and judicial branches of the federal government. Section 8 of Article I is an enumeration of the powers that Congress has, one of which is the power to "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."
Over the past 230 years, the Supreme Court has issued dozens (if not hundreds) of rulings that held that some of the enumerated powers of Congress are exclusive to the federal government and that some may be exercised by both the federal government and state governments. It has never held that the commerce power is exclusive to the federal government.
All that said, so what? You have framed your argument such that whatever you're being accused of is not commerce. That being the case, it makes perfect sense that you are being prosecuted by the State of Illinois. As I indicated in my most recent prior response, the Commerce Clause would only be implicated in a state criminal prosecution if you were making a negative/dormant commerce clause argument, which you don't seem to be doing and wouldn't want to do.
I have no idea what you're talking about. The word "commerce" doesn't appear anywhere in the Illinois Constitution. The word "commercial" shows up a couple times in a provision about real property tax sales, but that obviously has nothing to do with your situation.
The bottom line is that the Commerce Clause (i.e., Art. I, sec. 8, cl. 2 of the U.S. Constitution) has nothing to do with a state level prosecution for marijuana possession.
Not surprisingly, the Supreme Court in Raich discussed Morrison fairly extensively. However, far from "overturning" Morrison, the Raich Court distinguished Morrison.
Tax Counsel
Well-Known Member
That's wrong for two reasons. First, what the Constitution does is give the federal government the power to legislate on matters involving interstate commerce (i.e. commerce between the states). However, as I noted earlier, the Supreme Court has held that what constitutes an impact on interstate commerce is very broad, including a farmer growing food on his own farm for his own consumption. Wickard v. Filburn, 317 U.S. 111 (1942). As a result of decisions like this one, the argument that Congress cannot prohibit marijuana possession because such possession does not affect interstate commerce will fail.
Second, the states clearly have the power to regulate for the purpose of health and safety (i.e. the state's police power) regardless of whether there is any interstate commerce. And it is under that police power that states prohibit marijuana possession. Trying to attack a state criminal law based on the commerce clause of the federal constitution will fail because states are not restricted by the commerce clause like the federal government is and because the states are legislating based on their general police power.
But the reason the states do that is because they choose to do it, not because the feds require them to do it. And why do the states choose to adopt the federal scheduling system (with some modifications)? Because it's easy for them to do it since the federal government has already the done the hard work of determining the risks of each drug and how the drugs are related. There is nothing in the law that says a state has to reinvent the wheel when adopting a law. They are free to look at the laws of the federal government and other states to use as a model for their own laws.
What you are raising does not implicate due process.
mightymoose
Moderator
Fair enough. I only meant that nothing was overturned. They coexist.
zddoodah
Well-Known Member
Exactly, I was adding to what you wrote and further explaining why the OP's statement was wrong.
Green River Hemp Farm
New Member
Thanks for all the help!
If congress does not have sole authority to regulate interstate and foreign commerce then I misunderstood. I actually assumed that Illinois also had a commerce clause. I was wrong.
I concede that the federal commerce clause is not really relevant.
I am much more familiar with the amendments and now I see that article 2 section 2 of the Illinois constitution is the clause that gives authority. The separation of powers clause may be relevant relating to (DEA) drug scheduling by the feds. Probably not really relevant either.
In Illinois the conflicts are mostly relevant to the preamble and several amendments. The proportionate penalties clause is particularly relevant criminal penalties and also relating to asset forfeiture.
My opinion
I feel I should have the right to grow and use a plant for my inalienable right to make my own health decisions independent of doctors, FDA or anyone else. No government has compelling interest that trumps that personal right and it is a matter of privacy as well.
I should have the right to grow and use cannabis for religion on my private property. Illinois RFRA and The religious liberty clause in the preamble is relevant as well as section 3 or the bill of rights.
I see conflicts with the preamble and sections 1,2,3,4,6,11,12,13,20,22 and 23
Also Illinois RFRA
The Illinois cannabis control act is completely contradicted by the medical law.
The hemp program also greatly alters the definition of cannabis and is now legal. I now grow hemp (cannabis) legally under this new law. I can possess an absolutely unlimited amount and can even extract and process hemp.
The new recreation laws as well as the medical program are in conflict with the law as well as the law about to be replaced January. Both violate federal law. Oddly enough the penalties for possession of over 30 grams remain exactly the same under the new law except hemp is now exempt I can use medical marijuana under one law and will be able to grow 5 marijuana plants starting January 1. Everyone over 21 will be legal to buy and possess 30 grams January 1.
The proportionate penalties clause may be my strongest angle. The argument is best applied to the same crime, however it is hard for me to except some of the comparisons. I mentioned earlier that my attorney was arrested for rape and unlawful restraint of a client. About a week later another woman came forward and he was arrested again for rape. Rape is a lower class felony then 5000 grams of cannabis (class x- 6 year minimum 30 year max) in Illinois and a conviction for rape can result in probation but not a class x. Even upon a second conviction for rape it finally becomes a class x like 5000 grams but is still less punitive considering the fine is higher for the cannabis charge and the asset forfeiture law does not apply to rape. That's crazy
The victim of the rape is very real and it is a violent crime. With the cannabis "crime" the "victim" is hypothetical at best and that is debatable too.
Tax Counsel
Well-Known Member
You have the right to your opinion on how things should be, of course. But the fact is that in your state you do not have that right, and while you think there are conflicts with the IL constitution, I think you will find that the courts will not agree with you.
Zigner
Well-Known Member
First, there is not a crime called "rape" in IL - it is known as criminal sexual assault. Second, criminal sexual assault is a non-probationable felony.
You may wish to know the facts before you get all riled up.
mightymoose
Moderator
Nothing wrong with holding that opinion. Use it to guide your decisions at the ballot box and perhaps someday the change you seek will agree with the majority. Until then, play by the rules as they are.
army judge
Super Moderator
If I want to remain among those in the "free" world I MUST obey their laws.
They don't give a pile of horse excrement what I like, think, or want.
In fact, none of them even know I exist.
To remain FREE, I must behave myself.
I've managed to do that and have been allowed to enjoy SOME of the fruits of my labor.
That would be the few remnants left after THEY'VE confiscated whatever amount they require.
You can lose everything if you battle THEM.
No thank you, I'll just keep out of THEIR way.
They don't give a pile of horse excrement what I like, think, or want.
In fact, none of them even know I exist.
To remain FREE, I must behave myself.
I've managed to do that and have been allowed to enjoy SOME of the fruits of my labor.
That would be the few remnants left after THEY'VE confiscated whatever amount they require.
You can lose everything if you battle THEM.
No thank you, I'll just keep out of THEIR way.
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