In 1965, Timothy Leary embarked on a road trip with his family from New York to Mexico. After encountering trouble at the border, Leary was arrested for possession of marijuana and faced a 30-year prison sentence. The charges against him shed light on the questionable origins of federal drug prohibition, which were disguised as tax legislation. Leary’s case eventually reached the Supreme Court, which overturned his conviction in 1969, ruling that the laws under which he was charged violated his Fifth Amendment rights. Congress responded by passing the Controlled Substances Act in 1970, which directly prohibited marijuana possession. The indirect approaches to drug prohibition reflected earlier doubts about the constitutionality of such laws, which were framed as revenue measures rather than outright bans. When the Smoking Opium Exclusion Act was being considered by Congress in 1909, Senator Joseph W. Bailey (D-Texas) strongly opposed it. He argued that the bill was an attempt to regulate and suppress the practice of smoking opium, which he believed was a police regulation that fell outside the federal government’s authority. Bailey contended that the federal government did not have the general police powers to regulate such matters.
Bailey objected to the argument that the bill fell under Congress’s power to impose and collect duties on imported goods. He believed that using a tax as a means of regulation was an abuse of federal taxing power. While the measure could be defended as a way to regulate international commerce, Bailey was skeptical of this rationale, especially since the ban covered all smoked opium, regardless of its quality.
The senator pointed out that matters relating to health and morals were exclusively within the jurisdiction of the states under the U.S. Constitution and not subject to federal government control. He disagreed with Senator Henry Cabot Lodge’s defense of the bill as a measure of hygiene and protection, arguing that if it was a health matter, it did not fall under federal government jurisdiction.
Bailey’s objections were based on the understanding at the time that drug prohibitions were seen as radical intrusions into personal affairs and were considered unconstitutional on the federal level. He noted that federal laws were tax laws rather than explicit prohibitions, as seen with alcohol prohibition, which required a constitutional amendment.
While Bailey’s arguments did not convince his colleagues, they reflected a broader understanding of congressional power at the time. The Supreme Court later expanded the interpretation of the Commerce Clause, allowing for broader federal regulations. However, in 1909, the legislators still felt the need to dress up the Smoking Opium Exclusion Act as a tariff measure to pass it.
The Supreme Court’s evolving interpretation of the Commerce Clause eventually rendered the use of tax-based regulations obsolete. This shift in understanding reached a new height in a 1942 case involving an Ohio farmer who grew too much wheat, demonstrating the changing landscape of federal regulatory power. The stubborn farmer argued that Congress had overstepped its constitutional boundaries by dictating how much wheat he could grow, especially for personal use on his own land. He contended that because the surplus wheat was used to feed his family and animals on his farm and never left the property, it did not fall under interstate commerce.
However, the Supreme Court disagreed with his argument. In the case of Wickard v. Filburn in 1942, the Court ruled that even local activities could be regulated by Congress if they had a substantial economic impact on interstate commerce. This broad interpretation of the Commerce Clause allowed Congress to pass laws such as the Controlled Substances Act, which made activities like possession of illegal drugs federal crimes by claiming they affected interstate commerce.
A later case in 2005 involving medical marijuana, Gonzales v. Raich, further expanded the reach of the Commerce Clause. The Court held that Congress could regulate intrastate activities if they had an impact on the interstate market, even if the commodity was not produced for sale. This decision allowed Congress to regulate the production and possession of homegrown marijuana in states where it was legal for medical use.
Justice Clarence Thomas expressed concern about this broad interpretation of the Commerce Clause, warning that if Congress can regulate activities like the use of homegrown marijuana that have no effect on interstate commerce, then it could regulate almost anything, exceeding its enumerated powers.
Similarly, federal gun control laws, such as the National Firearms Act of 1934, have been justified under the guise of regulating interstate commerce. Like the early federal drug laws, the National Firearms Act was initially focused on generating revenue for the government through registration and tax requirements, with criminal penalties for violations. However, its true aim was to restrict access to certain weapons and accessories considered dangerous by Congress, such as machine guns, short-barreled rifles and shotguns, and “muffler[s] or silencer[s].”
The law required suppliers of these products to register and pay taxes, while also imposing a prohibitive transfer tax. Current owners were required to register with the Bureau of Internal Revenue and report any transfers. Carrying a covered weapon across state lines without registration was a federal offense.
The Act was framed as a revenue measure rather than a crime-control law, with Attorney General Homer S. Cummings explaining how taxation could be used as a tool to regulate such weapons. Congress later passed the Federal Firearms Act of 1938, which aimed to regulate commerce in firearms and created a licensing system for manufacturers, importers, and dealers.
Subsequent legislation further expanded restrictions on gun ownership, with the Gun Control Act of 1968 establishing categories of “prohibited persons.” The law aimed to support law enforcement officials in fighting crime and violence by controlling interstate traffic in firearms.
Changes to the law in 1986 expanded the provision on possession of firearms “in or affecting commerce,” leading to constitutional challenges. In the case of United States v. Lopez in 1995, the Supreme Court ruled that Congress had overstepped its authority with the Gun-Free School Zones Act of 1990, leading to amendments to the law to address jurisdictional concerns.
Congress added findings to the amended law, linking crime involving drugs and guns to interstate commerce. The law specified that its restrictions applied to firearms that had moved in or affected interstate or foreign commerce, even if the gun was made and sold within the same state. These changes reflected Congress’s belief in the cumulative impact of bringing guns into school zones on a nationwide problem of crime and violence. The Court of Appeals for the 8th Circuit determined that Congress had addressed the issue highlighted by Rehnquist. In 1999, the court ruled that the law now includes language that ensures each firearm’s impact on interstate commerce is considered on a case-by-case basis, making it a constitutional exercise of Congress’s Commerce Clause power. The U.S. Court of Appeals for the 9th Circuit agreed in 2005, stating that incorporating a jurisdictional element into the offense has historically helped statutes withstand Commerce Clause challenges.
Initially, Congress overlooked the fact that it should be regulating “interstate or foreign commerce.” However, after being reminded by the Supreme Court, simply invoking that phrase was enough to rectify the law, even though no substantive changes had been made.
The Commerce Clause has proven to be a more flexible pretext for federal legislation compared to the Taxing Clause. The current interpretation of the Commerce Clause has alleviated the concerns that members of Congress once had about overstepping their constitutional boundaries. They have learned to embrace this solution without hesitation.
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