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  If the DEA scheduled alcohol, would it be found unconstitutional?
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Author Topic: If the DEA scheduled alcohol, would it be found unconstitutional?  (Read 255 times)
darklordoftech
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« on: December 07, 2019, 03:45:58 pm »

Would the SCOTUS strike it down using the 21st Amendment or the commerce clause?
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The Mikado
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« Reply #1 on: December 07, 2019, 05:29:10 pm »

21st Amendment wouldn't do the trick. The entire point of the 18th Amendment was because people had a much more limited view of what the Federal Government could do in 1921 and thought it needed special permission to ban alcohol. 21st Amendment just restored pre-18th Amendment status quo rather than affirmatively asserting a right to sell booze. It'd be far easier legally to ban it today.

It'd be impossible politically.
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BRTD
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« Reply #2 on: December 07, 2019, 05:41:53 pm »

21st Amendment wouldn't do the trick. The entire point of the 18th Amendment was because people had a much more limited view of what the Federal Government could do in 1921 and thought it needed special permission to ban alcohol. 21st Amendment just restored pre-18th Amendment status quo rather than affirmatively asserting a right to sell booze. It'd be far easier legally to ban it today.

It'd be impossible politically.
There is the commerce clause argument though, and the precedent of Granholm v. Heald.
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Mr. Reactionary
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« Reply #3 on: December 08, 2019, 01:46:43 pm »

21st Amendment wouldn't do the trick. The entire point of the 18th Amendment was because people had a much more limited view of what the Federal Government could do in 1921 and thought it needed special permission to ban alcohol. 21st Amendment just restored pre-18th Amendment status quo rather than affirmatively asserting a right to sell booze. It'd be far easier legally to ban it today.

It'd be impossible politically.

Very problematic that something clearly requiring a Constitutional amendment 100 years ago is viewed as not requiring a Constitutional amendment now despite no relevant change to the Constitution. Gonzalez v Raich was an abominable opinion and the wholesale abandonment of Constitutional fidelity now is pathetic as we are seeing with the idiots in Virginia pushing the clearly invalid ERA on the grounds of "well the constitution should let us do this even though it doesn't so we are just gonna do it anyway and demand society just accept our overreach". The federalist papers were clear that Agriculture, mining, and manufacturing are not interstate commerce and now we have nuts insisting that choosing not to buy insurance or carrying a gun near a school or hitting women are "commerce" on account of otherwise we couldn't have these big government programs. Terrible argument. Mere possession of anything should never, ever be considered "commerce". Federal drug laws are despicable.
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Vosem
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« Reply #4 on: December 08, 2019, 11:11:40 pm »

The entire scheme of DEA scheduling, and wholesale prohibitions of treatments the government disapproves of and recreational drugs, are inconsistent with any non-motivated reading of Congress's enumerated powers or the Fourth Amendment.

Do you mean if they did it in the current political framework? The Court is fairly clearly looking for a sympathetic case with which to restrict administrative power by reviving at least some aspects of the non-delegation doctrine; Department of Commerce v. New York is a step in this direction, and Kavanaugh openly saying he would've joined the minority in Gundy v. United States suggests a very large step in this direction is coming soon; this kind of decision would be the perfect one to strike down.

It would also be very easy to argue that the 21st Amendment specifically protects alcohol, although the court just this year actually heard a 21st Amendment case in Tennessee Wine v. Byrd (which basically held that the 21st Amendment did not overrule the Dormant Commerce Clause for alcohol) and shied away from that interpretation.

I think the present court would undoubtedly rule it unconstitutional. But this sort of thing could only happen after a significant political shift, which would probably bring about a new court and new interpretations, so...who knows.
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BRTD
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« Reply #5 on: December 08, 2019, 11:35:26 pm »

It would also be very easy to argue that the 21st Amendment specifically protects alcohol, although the court just this year actually heard a 21st Amendment case in Tennessee Wine v. Byrd (which basically held that the 21st Amendment did not overrule the Dormant Commerce Clause for alcohol) and shied away from that interpretation.

Was it basically the same as the Granholm v. Heald ruling basis?
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Mr. Reactionary
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« Reply #6 on: December 09, 2019, 06:07:24 pm »

It would also be very easy to argue that the 21st Amendment specifically protects alcohol, although the court just this year actually heard a 21st Amendment case in Tennessee Wine v. Byrd (which basically held that the 21st Amendment did not overrule the Dormant Commerce Clause for alcohol) and shied away from that interpretation.

Was it basically the same as the Granholm v. Heald ruling basis?

More or less. I listened to the oral arguments and TN basically said you could only sell liquor in state if you had been a resident for several years. New resident challenger said that was unconstitutional protectionism and TN claimed they had free reign to regulate alcohol under the 21st irrespective of the other constitutional limitations that might otherwise apply. SCOTUS said no.

https://www.oyez.org/cases/2018/18-96
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