Constitutionality of federal law enforcement?

[publius]

And by the way...

DMF said:

Well there doesn’t need to be crimes defined in the Constitution because Article I gives Congress the power to pass laws.

You were the one who brought up that it was Senate Bill #1 in the very first Senate which created the Marshals. There were no laws yet for them to enforce, since law number one was being written, so any crimes which they were there to enforce against had to be crimes defined in the Constitution.

 

[rock jock]

If Congress passes, the President signs, and the courts refuse to review or review and find a piece of legislation constitutional, that legislation is constitutional?

If Congress passes, the President signs, and the courts review and find a piece of legislation unconstitutional, that legislation is unconstitutional?

By definition, this is true. And if you think about it, it must be true; otherwise, we would have no objective interpretation of the law. However, I agree that just because a law passes judicial review with flying colors does not mean it doesn't violate the intent of the Constitution. And that is perhaps where the point of disagreement in this thread orginates. So, how do we determine if a law declared by the SCOTUS violates the intent of the Constitution? Ultimately, that is up to the people to decide. And there is a step-wise process for doing this:

(1) Elect a President and representatives that will nominate jurists that honor the original intent of the Constitution and who will impeach those who do not;
(2) Convene a Constitutional Convention and change what you do not like;
(3) Secede;
(4) Revolt.

 

[publius]

You missed a step there...

In fact, you missed step one.

1. Decide to do it.

To do that, you must decide the answers to some of the questions I've asked in this thread. Do you have an opinion on those, rock jock? What do you think the Founders would do if you were transported back in time, went to the Constitutional Convention, and asked the question I proposed?

"Hey guys, I just wanted to stop in and verify that when you gave Congress the power to tax, you meant to include the power to regulate firearms, and when you gave Congress the power to regulate interstate commerce, you meant to include authority over intrastate, non-commercial growing of cannabis?"

 

[Talon]

The 10th Ammendment seems prudent to quote at this juncture...

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.

 

[tyme]

Rock jock, that is not true by definition. "Constitutional" is not defined as "The Supreme Court says [whatever it is] is constitutional." I happen to believe that "Constitutional" has something to do with:

1) popular sentiment that a law is constitutional, or at least lack of strong sentiment that a law is unconstitutional
2) The Supreme Court deciding that a law or action is constitutional
3) A plain language reading of the Constitution. It's English, people.
4) Intent of the founders.

With criteria 3 and 4 being far and away the most important. Either 1 or 2 or both are optional, but they help the situation. It's important to remember that SCOTUS opinions are always changing. Racial equality proponents didn't let Plessy v. Ferguson stop them, even though the issue was, as far as the SCOTUS was concerned, decided in the previous century. What a disaster it would have been for social progress had those of discriminated-against races accepted Plessy v. Ferguson and not campaigned for equality.

A prevailing theory in legal circles seems to be some combination of 1 and 2, only. While I agree that, pragmatically speaking, those two criteria are the most important, I don't think they have much to do with the definition of "constitutional."

Criteria 1 and 2 are slightly more important when either the people or the SCOTUS or both view legislation or an executive action as unconstitutional. Given the structure of our Constitution, a random piece of legislation is more likely to be unconstitutional than it is to be constitutional; if the people or SCOTUS views something as unconstitutional, either or both are more likely to be correct. When either the people or the SCOTUS or both view something as constitutional, however, that doesn't mean as much. People are more easily swayed into believing society needs more regulation than into believing it needs less.

Again, I agree that SCOTUS decisions mean a lot for practical purposes... an individual isn't very likely to get anywhere in lower courts suing over 2A violations when the SCOTUS has ruled that there are none. I don't see how that relates to the meaning of the word "constitutional," though.

 

[rock jock]

To do that, you must decide the answers to some of the questions I've asked in this thread. Do you have an opinion on those, rock jock?

Well, I certainly think the NFA tax is not Constitutional if that's what you're asking.

 

[rock jock]

Rock jock, that is not true by definition. "Constitutional" is not defined as "The Supreme Court says [whatever it is] is constitutional."

tyme,
Sorry, but that is the definition. From a practical standpoint, lower courts are going to use SCOTUS rulings as guidance in making their own decisions, and, (to a less degree) Congress will use them to guide the legislative process.

 

[publius]

Well, I certainly think the NFA tax is not Constitutional if that's what you're asking.

Well, that was one of the things I was asking, but thanks for the answer. Let's pursue it a little further.

Do you think the NFA tax is not Constitutional because any federal regulation of firearms is wrong, whether justified by taxing authority, commerce clause authority, general welfare authority, or some other necessary and proper authority?

Or do you think it is wrong because using a "tax" to acquire previously non-existant regulatory authority steps outside of the bounds prescribed in Article 1, Section 8 (those laws which shall be necessary and proper..yada yada yada)?

And how about that Harrison Act, or the Marihuana Tax Act?

 

[rock jock]

Do you think the NFA tax is not Constitutional because any federal regulation of firearms is wrong, whether justified by taxing authority, commerce clause authority, general welfare authority, or some other necessary and proper authority?

I think any regualtion of firearms is appropriate if it meets the criteria of your No. 4 - original intent. In this case, if a particular firearm meets that definition, then it should not fall under any kind of "special" status.

 

[publius]

Those were tyme's criteria, though I agreed with them.

Your response confuses me. What kinds of firearms regulations do you think would not conflict w/original intent? And if a firearm is regulated, isn't that giving it a special status compared to one that is not?

And how about this whole idea of using the power to tax to acquire regulatory authority with the NFA, Harrison Act, and Marihuana Tax Act? Were those "necessary and proper" uses of the power to tax, or were they unconstitutional?

 

[publius]

And just to save a little time...

Regardless of the response to my question about tax power, my next one is going to involve how it can be that tax power was needed back then, but only commerce clause power is needed now? DMF has already corrected me, and I agree that the Constitution remained about the same size with the passage of time, but the scope of what was covered by Article 1, Section 8 has expanded dramatically.

This thread is about the Constitutionality of federal law enforcement, and the two agencies that I've chosen to pick on are ATF and DEA. If you claim to be a strict constructionist, and you claim to support original intent, I'm going to put you in that room in Philadelphia, way back when, asking that question.

So what would the Founders say?

Edit: Suppose you brought them Judge Kozinski's opinion in the Stewart machine gun case. Would they agree with him that a homegrown machine gun for personal consumption is not interstate commerce?

 

[publius]

And let me save a little more time...

how it can be that tax power was needed back then, but only commerce clause power is needed now?

I know the answer. Three words:

Wickard v. Filburn

Or Filmore, whatever his name was. The wheat case.

Interestingly enough, one of the subdefinitions of "strict constructionist" in my political labels dictionary is "someone who spends a lot of time bashing Wickard v. Filburn."

 

[DMF]

This thread is about the Constitutionality of federal law enforcement . . .

Then why are we discussing the Constitutionality of certain laws in this thread? I though we already agreed that the federal government is NOT prohibited by the Constitution from enforcing the laws it passes. Therefore the question is the whether or not a specific law is Constitutional, not whether the ATF, DEA or any other agency is Constitutional. Congress can have any agency it wants, by any name, under any department, enforce the federal statutes.

However, as pointed out earlier the Constitution is very clear about how laws get passed by the Legislature via Article I, signed into law by the Executive under Article II, and scrutinized by the Judiciary under Article III.

Regardless, we have established that if a law is Constitutional then the federal government may enforce that law. Discussions about the individual laws are off the topic of this thread, IMHO.

 

[publius]

Referencing the last question I asked you, DMF...

So was that a "Yes, I like it" or a "No, I don't like it"?

Just to recap where we've been, you said that all agencies were created pursuant to legislation.

Yes, they were, but in the cases of drug and gun laws, that legislation was a regulatory power grab disguised as a tax. I don't believe that was a necessary and proper use of the power to tax. I don't care that the courts have stuffed 10 lbs of statist manure into a 5 lb Constitutional bag and said that it was a necessary and proper use of the power to tax. I don't believe it was.

If it was not, Article 1, Section 8 says that they had no power to pass the NFA, or the Harrison Act, or the Marihuana Tax Act, and thus no power to create the ATF, or ultimately the DEA. That would make them unconstitutional law enforcement agencies, IMO.

So, if you really believe that the courts are right on that point, and I am wrong, would you care to explain why you believe that?

 

[publius]

we have established that if a law is Constitutional then the federal government may enforce that law.

Yes, but what if a law is not Constitutional? And what if they create an agency to enforce that law? Are we supposed to discuss the agency while ignoring the legislation which created it?

 

[Cosmoline]

There is an enormous difference between the US Marshals and Postal Inspectors and the alphabet soup of federal law enforcement agencies to emerge since Prohibition and the New Deal. The FBI, DEA, and the various sub organizations have a much weaker grounding in the Constition. Yet under the prevailing court opinions, they are not so much unconstitional as EXTRAconstitutional.

The Marshals are a natural aspect of the Article III court system. The courts cannot function without Marshals. Creating a court system without agents to serve warrants and secure the peace of the courtrooms would be absurd. Likewise, a nation-wide postal system, which the Constitution specifically endorses, needs inspectors to ensure its smooth functioning.

The problem comes with the dramatic increase in the scope of federal criminal law from Prohibition through the war on drugs. With all the new federal crimes Congress created, there was a need for a much broader federal law enforcement system. There is no specific link between the FBI, BATF, etc and the Constition because the the underlying laws they enforce have NO tie to the Constitution other than a very questionable one via the Commerce Clause. So in a way, all these agencies do is regulate "commerce." The problem is "commerce" has come to mean darn near anything a person does.

What needs to happen is a federal court system full of folks like Justice Thomas. If the Commerce Clause were trimmed back to its original scope, we would see the laws underlying the JBT's vanish, and they'd melt away. Short of that, I'm afraid we're stuck with Hoover's cross dressing freaks, Reno's gun cops and everyone in between.

 

[publius]

There is no specific link between the FBI, BATF, etc and the Constition because the the underlying laws they enforce have NO tie to the Constitution other than a very questionable one via the Commerce Clause.

Actually, ATF and DEA do share deeper roots than that, as I've pointed out in this thread, both having been born from the power to tax, back before the Constitution gre....oops, almost said it again. Back before the scope of Article 1 Section 8 expanded.

(Self-proclaimed "strict constructionists" who support the ATF and DEA just hate it when I say that the Constitution grew, since that sounds too much like something a living document might do.)

What needs to happen is a federal court system full of folks like Justice Thomas.

Thomas is a good one, almost as good as Kozinski (see: Stewart case). I've heard that Scalia character is good, too, and he's a hunter. He probably doesn't believe in that Wickard nonsense which says that if everyone did it, it might just affect interstate commerce, so therefore it is interstate commerce.

Or does he?

Randy Barnett, law professor from Boston University, argued on behalf of Raich. He was allowed a minute to introduce his argument and was then continually peppered with hostile questions. Barnett said there was no "economic activity" in the case, but one justice after another would challenge that statement. "If the feds could reach the wheat used on a farm in Wickard," Scalia kept asking, "why not marijuana consumed by patients in California?"

 

[Cosmoline]

The "tax" pretext was used early on, as seen in the tax stamps of the NFA. The mass of drug laws, gun laws, and other federal criminal laws since WWII have been tied to the Commerce Clause. This is why drug dealers aren't being locked up for not buying tax stamps on their weed.

I mention Thomas because of his concurring opinion in Lopez, which is one of the rare examples of a Justice having the guts to admit something close to the truth when it comes to the Commerce Clause. Most of them are simply too afraid of the consequences if they interpreted commerce to mean commerce and not "anything that impacts anything else."

 

[DMF]

Hmm, I wonder how many here who have problems with the use of the commerce clause are OK with the provisions of the FOPA based on the commerce clause?

How many here would support a national shall issue concealed carry law, which would require the application of the commerce clause to accomplish?

I happen to want nationwide concealed carry, but if the feds are going to enact that, it would be based on the commerce clause.

Can't have your cake and eat it too.

 

[Cosmoline]

I would GLADLY give up the FOPA, with its minimal protections, if I could rip out and burn the multitude of federal criminal laws outlawing firearms, drugs, and generally messing with every corner of our lives. I'd do it with a smile on my face and I'd dance a little jig afterwards.

As far as nationwide concealed carry, we're well on the way towards it without any "help" from the feds.

 

[2nd Amendment]

I must say, Publius, it's fun watching you drag out the steamroller.

 

[Cool Hand Luke 22:36]

..

 

[publius]

I happen to want nationwide concealed carry, but if the feds are going to enact that, it would be based on the commerce clause.

I'll tell you what I tell the very few drug warriors (two so far in my life) who listen to my arguments and admit that the policies they like are not actually authorized in the Constitution:

So start pushing for an amendment!

By the way, you must have forgotten in all the hubbub to answer my question, but do you think that the passage of the NFA, Harrison Act, and Marihuana Tax Act were "necessary and proper" uses of the power to tax, or not? Or is your opinion on that question a secret?

 

[publius]

I mention Thomas because of his concurring opinion in Lopez, which is one of the rare examples of a Justice having the guts to admit something close to the truth when it comes to the Commerce Clause. Most of them are simply too afraid of the consequences if they interpreted commerce to mean commerce and not "anything that impacts anything else."

Agreed, and that's why we have had Supreme Court cases about whether or not growing your own wheat is interstate commerce, whether or not rape is interstate commerce, whether or not possession of porn is interstate commerce, whether or not walking near a school with a gun is interstate commerce, whether or not a homegrown cannabis plant for personal consumption is interstate commerce, and whether or not a homegrown machine gun for personal consumption is interstate commerce (OK, so those last two are not decided SC cases yet, but when Raich gets decided, Stewart will most likely follow in those footsteps).

As you might guess from the screen name, I've read the Federalist Papers more than once, and I don't think the Founders intended for any of those things to be regulated under the power to tax, or under the commerce clause. I think they intended for such matters to be settled by the states.

 

[publius]

I must say, Publius, it's fun watching you drag out the steamroller.

Sailing, working on my farm, and doing this are how I have fun.

As you may be able to tell, I've conducted this argument before. Want me to tell you how it ends? I never, ever get to actually put the drug warrior or ATF apologist in the Convention Hall in Philadelphia, asking the Founders this question:

"Hey guys, I just wanted to stop in and verify that when you gave Congress the power to tax, you meant to include the power to regulate firearms, and when you gave Congress the power to regulate interstate commerce, you meant to include authority over intrastate, non-commercial growing of cannabis?"

Oddly enough, self-proclaimed "strict constructionists" just never want to get around to answering that question. Go figger.

Edit: OK, as I said, it did happen twice in my life. But I've had this discussion WAAAAY more than twice.