DEA is Investigating Montana State Legislators Over State Laws, page 4
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reply posted on 4-2-2012 @ 01:16 AM by webpirate
reply to post by autowrench

EDIT: This will be a long story to answer this, so everyone take your Ritalin now before you read it. But I see a good opportunity here to provide some relevant background, case law and some Constitutional education.


I think you're missing the point here. The Constitution is broken into 3 separate and distinct parts for the government. There is the Legislative branch.....they are the ones who make the laws.
There is the Executive branch. They are the ones in charge of enforcing the laws.
And there is the Judicial Branch...whose job it is to interpret both the actions of the other 2 branches to make sure they fall within the guidelines of the Constitution itself.

Now..obviously that's an oversimplification of what actually occurs. But the enforcement branch of the US Government is the Executive branch. This includes the President. The idea was to try a new form of government where one person or one body of individuals did not have all of the power.

Article II is the part that defines the President, and his roles. Section 3 of Article 2 is the one that gives the president the power to...among other things, see that the laws created by Congress are faithfully executed.


Section 3.

He shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both Houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper; he shall receive ambassadors and other public ministers; he shall take care that the laws be faithfully executed, and shall commission all the officers of the United States.


It is ludicrous to say that the President gets his own drug police force as you put it. And...no where does the constitution specifically create the DEA. BUT...the DEA is part of the part of the Constitution which helps the President see that the laws are "faithfully executed."

I think we are agreeing that the DEA is overstepping it's bounds here, as well as possibly/probably many or most of the other alphabet agencies. I'm not arguing with you over that. I think we agree on this point. But, the DEA is Constitutional. Just like the FBI is, the Transportation Safety Bureau, the FAA and any other federal agency that is around. Well..at least the ones we know of. It's ridiculous to think the President himself, can by himself, enforce the laws of the US. Nor was he meant to. He was meant to oversee they were enforced. And one way that has been accomplished, is through the creation of the DEA.

It isn't as simple as the President saying...I think we need an agency just to deal with legal and illegal drugs, and to control the use, prescribing of and manufacturing of the legal medicines. They also...obviously, handle the Federal investigations involving the illegal use, trafficking, manufacturing, selling and basically existence of the illegal ones too.

I personally don't have a problem here with the DEA per se, but investigating a member of a state legislative body over state laws is way overstepping their bounds, because their real intent isn't to uphold federal law. It was to intimidate Representative Sands in her speech and I'm sure in her future voting habits.

Now...I'm gonna answer your next question before you ask it. Like I said...it's not like the President can just say...he wants a DEA, or and ATF or whatever. These agencies have to be funded. And where does that money come from? It comes from Congress. So in theory,the "enforcement" of the laws is carried out by the executive branch of the government. But it actual practice, since money is what is needed to run these agencies, basically, the actual oversight of the enforcement of laws is by the same body who makes them...Congress. Since they supply the money to run the agencies who enforce the laws they made. Hardly a separation of power in my opinion. But let's go just a tad further with this....

As I mentioned earlier in a post in this thread, Congress has used Article 1, Section 8 Clause 3 of the Constitution, which is also known as the Commerce Clause to do just about anything they want. And the courts have backed them....most of the time.

This clause specifically states Congress has the power to:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;


Initially, the US Supreme Court mostly sided with the states over this, but since the latter parts of the 19th century and most all of the 20th century and time since, the US Supreme Court has sided with the US Government.


edit on 4-2-2012 by webpirate because: formatting



reply posted on 4-2-2012 @ 01:19 AM by webpirate
reply to post by autowrench


In 1995, in a case entitled United States v Lopez, The Court ruled in favor of Lopez in the end...or more importantly, the states. He had brought an unloaded handgun to school, and his intent was to give or sell the gun to someone else. He admitted having it. He was charged under the Gun-Free School Zones Act of 1990, with the reason being, the fact the gun was in a public school, meant there was a good chance of a violent crime being committed.

This would affect interstate commerce because, in the opinion of the US Government:

First, because violent crime causes harm and creates expense, it raises insurance costs, which are spread throughout the economy; and second, by limiting the willingness to travel in the area perceived to be unsafe. The Government also argued that the presence of firearms within a school would be seen as dangerous, resulting in students' being scared and disturbed; this would, in turn, inhibit learning; and this, in turn, would lead to a weaker national economy since education is clearly a crucial element of the nation's financial health.

The (appeals)Court, however, found these arguments to create a dangerous slippery slope: what would prevent the federal government from then regulating any activity that might lead to violent crime, regardless of its connection to interstate commerce, because it imposed social costs? What would prevent Congress from regulating any activity that might bear on a person's economic productivity?

Still from US v Lopez

In a 5-4 split decision the Supreme Court upheld the lower courts ruling overturning the conviction basically by saying just the fact a handgun was present didn't mean a violent crime would have been committed, and even if it had, there was no evidence that it would greatly affect interstate commerce.
Basically, Congress was put in their place over that clause for the first time in many years.

However, in the case of Gonzales v. Raich (previously Ashcroft v. Raich) from 2005, they again sided with Congress. This ruling is way more relevant to this thread. Basically, California had passed very similar laws to the ones Montana has that were discussed at the start of the thread. In what became a series of cases, the DEA raided, broke up and arrested people who were acting within the laws of California, but not the US.

The United States has a federal structure, with power divided between the states and the federal government. The state governments can act in any sphere not prohibited to them (10th Amendment, U.S. Constitution) but the federal government can pass laws only in areas specifically delegated to it[1]. The state governments have general police power. The federal government does not have general police power and is a government body of limited, enumerated powers granted by the Constitution. Consequently, a substantial amount of U.S. federal law regulating numerous areas, including economic legislation and criminal law, are legally premised on an exercise of the Commerce Clause. The Commerce Clause, along with the Fourteenth Amendment and the spending power, allows Congress to do things that affect states.

Link to Wiki article on this series of cases.

The above is basically the current interpretation of the Commerce Clause. What the argument was though..which was supported by several governors of states with similar laws, as well as some southern states which didn't necessarily approve of the Cali. law, but sided with them on the states rights issue. The issue was this substance deemed illegal by the US but not the states. They argued the use of this substance didn't cross state lines, and therefore shouldn't be affected by the commerce clause.

There is a bunch of legal BS involved, but it came down to an earlier law regarding the production of wheat and a 1938 law that rising wheat prices could draw the wheat into the open interstate market when the wheat was initially meant only for use in the state it was grown in....See the correlation?


edit on 4-2-2012 by webpirate because: formatting



reply posted on 4-2-2012 @ 01:37 AM by webpirate
Justice Antonin_Scalia wrote in the final opinion after several cases were heard either in the SC or lower courts involving this issue and others including the Lopez case I just mentioned, that


a separate concurrence that aimed to differentiate the decision from the more recent results of United States v. Lopez and United States v. Morrison. Although Scalia voted in favor of limits on the Commerce Clause in the Lopez and Morrison decisions, he said that his understanding of the Necessary and Proper Clause caused him to vote for the Commerce Clause with Raich for the following reason:
“ Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective. As Lopez itself states, and the Court affirms today, Congress may regulate noneconomic intrastate activities only where the failure to do so “could … undercut” its regulation of interstate commerce. ... This is not a power that threatens to obliterate the line between “what is truly national and what is truly local.”


Wiki link

Basically, to cut through the legal jargon and unnecessary large words, this meant that it didn't matter whether one person grew and used this one thing themselves with no intention of it ever going to anyone else, there was still a potential it could get out and cross state lines. Therefore, it did fall under Congresses power to regulate it, and since they decided it was illegal, then it was illegal. Even if it was only intended for use by a sole, single sick entity.

This is actually still an ongoing thing with several cases directly and indirectly related to this topic still being discussed and reviewed.

When Obama became President, he decided the DEA had much bigger things to worry about than personal use of anything if it fell within the confines of a states laws. Meaning...according to Attorney General Eric Holder...the US would basically look the other way in most cases.

What happened in Montana, is very quickly this became a circus, and a few idiots flaunted the use of things deemed illegal by the US Government. Many many places which claimed to be providers of such medical products under Montana Law sprung up overnight, and people started making a huge profit.

Well...money, and turning a blind eye don't go hand and hand. And that's when the DEA swooped in, arrested people...even those well within compliance with state laws. One of those people the DEA arrested is the one who's attorney told Representative Sands that she too was being investigated, along with other members of the State lawmakers.

So no...To answer your question again, NO WHERE does the Constitution say the DEA is legal. But nowhere does it say it can't exist either. This matter is far from over. The commerce clause is being used to cover a wider area every single day.

I don't think the DEA is unconstitutional, however, I do think their actions,along with other parts of the federal government in Montana and other states over this issue and others involving the rights of the states to make their own laws is unconstitutional.

And it isn't going away anytime soon.


reply posted on 4-2-2012 @ 01:44 AM by webpirate
reply to post by ajay59


I'm not saying I disagree with you. In fact...that may well be about the only solution to remedy this. However, in 2012 pulling off any kind of revolution is gonna be way harder than it was in 1775 with the "shot heard round the world."

And to quote Forrest Gump since that discussion is a very slippery slope..and I don't mean ATS wise..."...and that's all I'm gonna say about that."


reply posted on 4-2-2012 @ 02:08 AM by webpirate
reply to post by sayaangel


Your wording there may need to be re-worked a little, but yes...they very obviously have much better things to do. That's one of the reasons I made this thread. They weren't really "investigating" a state representative. They were here for intimidation. Or something else. There really is something very wrong with what went on....
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