# Drug laws and States Rights **URL:** \ **Category:** Factual Questions\ **Created:** [June 18, 2003, 4:06am UTC](https://boards.straightdope.com/t/drug-laws-and-states-rights/182621 "2003-06-18T04:06:40Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Nobody](https://avatars.discourse-cdn.com/v4/letter/n/94ad74/32.png) [@Nobody](https://boards.straightdope.com/u/Nobody)\ **Post date:** [June 18, 2003, 4:06am UTC](https://boards.straightdope.com/t/drug-laws-and-states-rights/182621/1 "2003-06-18T04:06:40Z")
OK, now I am in no way in favor of legalizing currently illegal drugs, but I’ve been curious lately, what makes the federal government supreme authority on making drug laws? According to our constitution (the US constitution) any powers not specifically given to the federal government are given to the states. Now I can understand laws about transporting drugs across state lines, but if a state wants to make a drug legal within its own borders, like say the legalization of pot in California and here in Oregon, what part of the constitution gives the federal government the right to override the state’s authority? ---
**Author:** ![Banger](https://avatars.discourse-cdn.com/v4/letter/b/8491ac/32.png) [@Banger](https://boards.straightdope.com/u/Banger)\ **Post date:** [June 18, 2003, 4:52am UTC](https://boards.straightdope.com/t/drug-laws-and-states-rights/182621/2 "2003-06-18T04:52:17Z")
U.S. Constitution, Art. 1, Sec. 8, Clause 3: > [@](#): > > [Congress shall have the power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes I’m not an expert at federal drug laws, but Congress often uses the “Commerce Clause” to create laws sometimes only tenuously connected to interstate commerce, as the Supreme Court uses the relatively low standard of “rational basis” in determining whether a federal law based on the Commerce Clause is constitutional. Here’s Title 21, Chapter 13, Subchapter I, Part A, Sec. 801(3) of the United States Code: > [@](#): > > A major portion of the traffic in controlled substances flows through interstate and foreign commerce. Incidents of the traffic which are not an integral part of the interstate or foreign flow, such as manufacture, local distribution, and possession, nonetheless have a substantial and direct effect upon interstate commerce because - > > (A) > > after manufacture, many controlled substances are transported in interstate commerce, > > (B) > > controlled substances distributed locally usually have been transported in interstate commerce immediately before their distribution, and > > © > > controlled substances possessed commonly flow through interstate commerce immediately prior to such possession. The US Code continues with: > [@](#): > > (6) > > Federal control of the intrastate incidents of the traffic in controlled substances is essential to the effective control of the interstate incidents of such traffic. More on this section of the US Code can be found [here](http://www4.law.cornell.edu/uscode/21/801.html). Basically, Congress says that intrastate drug distribution (which would occur with legalization of a particular drug within a state) would affect interstate commerce. Exerting its right under the Commerce Clause, Congress regulates controlled substances throughout all the states. ---
**Author:** ![Nobody](https://avatars.discourse-cdn.com/v4/letter/n/94ad74/32.png) [@Nobody](https://boards.straightdope.com/u/Nobody)\ **Post date:** [June 18, 2003, 5:36am UTC](https://boards.straightdope.com/t/drug-laws-and-states-rights/182621/3 "2003-06-18T05:36:52Z")
I see. Wow, so using logic like that, the federal government then has total power over all manufactured goods then, since they all can be involved in interstate commerce. I wonder if the Founding Fathers really ment for the government to have such broad powers like this, but, anyway, that’s another discussion. Thanks for the info. ---
**Author:** ![Duckster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/duckster/32/1244_2.png) [@Duckster](https://boards.straightdope.com/u/Duckster)\ **Post date:** [June 18, 2003, 5:36am UTC](https://boards.straightdope.com/t/drug-laws-and-states-rights/182621/4 "2003-06-18T05:36:59Z")
Point of clarification. States don’t have “rights.” They have delegated powers. We as individuals have “rights.” Carry on. ---
**Author:** ![Banger](https://avatars.discourse-cdn.com/v4/letter/b/8491ac/32.png) [@Banger](https://boards.straightdope.com/u/Banger)\ **Post date:** [June 18, 2003, 5:55am UTC](https://boards.straightdope.com/t/drug-laws-and-states-rights/182621/5 "2003-06-18T05:55:30Z")
> [@](#): > > \*Originally posted by Duckster \* > \*\*Point of clarification. > > States don’t have “rights.” They have delegated powers. > > We as individuals have “rights.” > > Carry on. \*\* You know, other than my over-simplification of reasons for the federal regulation of controlled substances (which can be more fully understood by reading the cited US Code section; e.g., mere possession without any evidence of distribution being subject to federal law), shortly after posting I realized that I should have said that Congress has the “power” instead of the “right” to regulate controlled substances. While this could be viewed as nitpicking, in such a discussion it is a good idea to use the correct terms, as **Duckster** indicates, for clarification. ---
**Author:** ![Duckster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/duckster/32/1244_2.png) [@Duckster](https://boards.straightdope.com/u/Duckster)\ **Post date:** [June 18, 2003, 6:42am UTC](https://boards.straightdope.com/t/drug-laws-and-states-rights/182621/6 "2003-06-18T06:42:25Z")
Well, **Banger** I wasn’t nitpicking you but the OP’s thread title. ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [June 18, 2003, 1:43pm UTC](https://boards.straightdope.com/t/drug-laws-and-states-rights/182621/7 "2003-06-18T13:43:44Z")
> [@](#): > > \*Originally posted by Joel \* > \*\*Now I can understand laws about transporting drugs across state lines, but if a state wants to make a drug legal within its own borders, like say the legalization of pot in California and here in Oregon, what part of the constitution gives the federal government the right to override the state’s authority? \*\* Specifically, the Supremacy Clause. If Congress has validly asserted one of its powers, like the Commerce Clause, the Supremacy Clause prevents states from issuing any laws to the contrary. Small but important nitpick to **Banger’s** excellent post: the activity must not merely affect interstate commerce, but _substantially_ affect it. The Supreme Court has recently begun striking down some legislation (the first time Commerce Clause legislation has been struck down in decades) on the grounds that the effect on interstate commerce wasn’t substantial enough, like the Gun Free School Zones Act and part of the Violence Against Women Act. ---
**Author:** ![Cliffy](https://avatars.discourse-cdn.com/v4/letter/c/59ef9b/32.png) [@Cliffy](https://boards.straightdope.com/u/Cliffy)\ **Post date:** [June 18, 2003, 1:49pm UTC](https://boards.straightdope.com/t/drug-laws-and-states-rights/182621/8 "2003-06-18T13:49:37Z")
While I personally agree with you, **Duckster** , you’re stating a proposition, not a fact. Throughout the existence of the U.S. there have been people who believe that the federal government’s power comes from the states, not the people. (Indeed, there was a whole war over the idea.) While I feel comfortable saying that’s a minority position today, it is by no means a marginal one – at least two Supreme Court justices believe it, and probably more. I generally agree with **Banger** ’s analysis, but let me add a critical piece – the Supremacy Clause. The Constitution says that federal laws trump inconsistent state law. Of course, the federal law has to be a legitimate one under the limited powers granted to the federal government. **Banger** is correct that the federal government construes its authority under the Commerce Clause very broadly. (Note that this is assisted by another clause granting power to the federal government – the Necessary and Proper Clause, which allows the fed. to enact legislation that is “necessary and proper” to aid in its efforts under one of the delineated powers, such as the power to regulate commerce.) The expansion of the Commerce Clause is a result of the Great Depression – when Roosevelt was elected he (and the Democrat Congress) attempted to create several assistance and stimulus programs to pull the nation out of the Depression, and the Supreme Court consistently ruled them unconstitutionally broad exercises of federal power – until Roosevelt threatened to greatly increase the number of seats on the Court and pack it with his appointees. Although there was little public support for the plan, within a month after its proposal Justice Owen switched sides, giving those supporting to New Deal a majority on the Court – this is called “the switch in time that saved nine.” After the switch, the Court began to rule that the Commerce Clause was broader than previously construed and that the federal government had much greater power to legislate in areas that would only indirectly effect interstate commerce. –Cliffy ---
**Author:** ![Banger](https://avatars.discourse-cdn.com/v4/letter/b/8491ac/32.png) [@Banger](https://boards.straightdope.com/u/Banger)\ **Post date:** [June 18, 2003, 4:45pm UTC](https://boards.straightdope.com/t/drug-laws-and-states-rights/182621/9 "2003-06-18T16:45:40Z")
D’oh! Forgot to mention the Supremacy Clause :smack: That’ll l’arn me not to visit GQ after bedtime. ---
**Author:** ![Nobody](https://avatars.discourse-cdn.com/v4/letter/n/94ad74/32.png) [@Nobody](https://boards.straightdope.com/u/Nobody)\ **Post date:** [June 19, 2003, 5:50am UTC](https://boards.straightdope.com/t/drug-laws-and-states-rights/182621/10 "2003-06-19T05:50:10Z")
> [@](#): > > \*Originally posted by Duckster \* > \*\*Point of clarification. > > States don’t have “rights.” They have delegated powers. > > We as individuals have “rights.” > > Carry on. \*\* You’ve never heard any debates on TV or radio, or in the news papers about “State’s Rights” ? But, if you’re really bent on being nit picky, the tenth amendment says that the states have **Reserved Powers**. ---
**Author:** ![Nobody](https://avatars.discourse-cdn.com/v4/letter/n/94ad74/32.png) [@Nobody](https://boards.straightdope.com/u/Nobody)\ **Post date:** [June 19, 2003, 5:52am UTC](https://boards.straightdope.com/t/drug-laws-and-states-rights/182621/11 "2003-06-19T05:52:07Z")
> [@](#): > > \*Originally posted by Banger \* > \*\*You know, other than my over-simplification of reasons for the federal regulation of controlled substances (which can be more fully understood by reading the cited US Code section; e.g., mere possession without any evidence of distribution being subject to federal law), shortly after posting I realized that I should have said that Congress has the “power” instead of the “right” to regulate controlled substances. > > While this could be viewed as nitpicking, in such a discussion it is a good idea to use the correct terms, as **Duckster** indicates, for clarification. \*\* Well, in my humble opinion, as long as the meaning of your post is understood, I think that that is what is most important. But, that’s just me. ---
**Author:** ![Nobody](https://avatars.discourse-cdn.com/v4/letter/n/94ad74/32.png) [@Nobody](https://boards.straightdope.com/u/Nobody)\ **Post date:** [June 19, 2003, 5:58am UTC](https://boards.straightdope.com/t/drug-laws-and-states-rights/182621/12 "2003-06-19T05:58:14Z")
> [@](#): > > \*Originally posted by pravnik \* > \*\*Specifically, the Supremacy Clause. If Congress has validly asserted one of its powers, like the Commerce Clause, the Supremacy Clause prevents states from issuing any laws to the contrary. > > Small but important nitpick to **Banger’s** excellent post: the activity must not merely affect interstate commerce, but _substantially_ affect it. The Supreme Court has recently begun striking down some legislation (the first time Commerce Clause legislation has been struck down in decades) on the grounds that the effect on interstate commerce wasn’t substantial enough, like the Gun Free School Zones Act and part of the Violence Against Women Act. \*\* I’m aware of the Supremacy Clause, but I was asking about the validity of congressional drug laws that have nothing to do interstate commerce or drug trafficking to or from this country to another, but my question has already been answered. Thank you though for brining up the fact that an effect on interstate commerce has to be substantial. I feel a little bit better now. ---
**Author:** ![Nobody](https://avatars.discourse-cdn.com/v4/letter/n/94ad74/32.png) [@Nobody](https://boards.straightdope.com/u/Nobody)\ **Post date:** [June 19, 2003, 5:59am UTC](https://boards.straightdope.com/t/drug-laws-and-states-rights/182621/13 "2003-06-19T05:59:48Z")
> [@](#): > > \*Originally posted by Cliffy \* > \*\*While I personally agree with you, **Duckster** , you’re stating a proposition, not a fact. Throughout the existence of the U.S. there have been people who believe that the federal government’s power comes from the states, not the people. (Indeed, there was a whole war over the idea.) While I feel comfortable saying that’s a minority position today, it is by no means a marginal one – at least two Supreme Court justices believe it, and probably more. > > I generally agree with **Banger** ’s analysis, but let me add a critical piece – the Supremacy Clause. The Constitution says that federal laws trump inconsistent state law. Of course, the federal law has to be a legitimate one under the limited powers granted to the federal government. **Banger** is correct that the federal government construes its authority under the Commerce Clause very broadly. (Note that this is assisted by another clause granting power to the federal government – the Necessary and Proper Clause, which allows the fed. to enact legislation that is “necessary and proper” to aid in its efforts under one of the delineated powers, such as the power to regulate commerce.) > > The expansion of the Commerce Clause is a result of the Great Depression – when Roosevelt was elected he (and the Democrat Congress) attempted to create several assistance and stimulus programs to pull the nation out of the Depression, and the Supreme Court consistently ruled them unconstitutionally broad exercises of federal power – until Roosevelt threatened to greatly increase the number of seats on the Court and pack it with his appointees. Although there was little public support for the plan, within a month after its proposal Justice Owen switched sides, giving those supporting to New Deal a majority on the Court – this is called “the switch in time that saved nine.” After the switch, the Court began to rule that the Commerce Clause was broader than previously construed and that the federal government had much greater power to legislate in areas that would only indirectly effect interstate commerce. > > –Cliffy \*\* Wow, thanks for all the info, this helps me to understand things a lot better now. 🆒 ---
**Author:** ![Hazel](https://avatars.discourse-cdn.com/v4/letter/h/e56c9b/32.png) [@Hazel](https://boards.straightdope.com/u/Hazel)\ **Post date:** [October 5, 2003, 8:21am UTC](https://boards.straightdope.com/t/drug-laws-and-states-rights/182621/14 "2003-10-05T08:21:45Z")
> [@](#): > > \*From a post by Cliffy \* > \*\*The expansion of the Commerce Clause is a result of the Great Depression – when Roosevelt was elected he (and the Democrat Congress) attempted to create several assistance and stimulus programs to pull the nation out of the Depression, and the Supreme Court consistently ruled them unconstitutionally broad exercises of federal power – until Roosevelt threatened to greatly increase the number of seats on the Court and pack it with his appointees. Although there was little public support for the plan, within a month after its proposal Justice Owen switched sides, giving those supporting to New Deal a majority on the Court – this is called “the switch in time that saved nine.” After the switch, the Court began to rule that the Commerce Clause was broader than previously construed and that the federal government had much greater power to legislate in areas that would only indirectly effect interstate commerce. > > –Cliffy \*\* So _that’s_ how it happened. I knew that, at some point, the Commerce Clause started being used to justify all sorts of Federal actions that didn’t really have anything to do with commerce, but I did not know until now when and how this occured. Thank you, Cliffy! I wonder if there’s any way to ever get the genie back into the bottle, and put a stop to this (in my opinion) misuse of the Commerce Clause? ---
**Author:** ![Nobody](https://avatars.discourse-cdn.com/v4/letter/n/94ad74/32.png) [@Nobody](https://boards.straightdope.com/u/Nobody)\ **Post date:** [October 5, 2003, 8:27am UTC](https://boards.straightdope.com/t/drug-laws-and-states-rights/182621/15 "2003-10-05T08:27:30Z")
AAHHHGGGG!!! My thread has been resurected noooooooooo… ---
**Author:** ![Susanann](https://avatars.discourse-cdn.com/v4/letter/s/7ab992/32.png) [@Susanann](https://boards.straightdope.com/u/Susanann)\ **Post date:** [October 5, 2003, 2:12pm UTC](https://boards.straightdope.com/t/drug-laws-and-states-rights/182621/16 "2003-10-05T14:12:44Z")
The federal government does not have the power to outlaw anything, any inanimate object, which is why we needed a constitutional ammendment to out law alchohol for Prohibition. If the Constitution allowed the United States Congress to outlaw substances, we didnt need to pass a Constitutional ammendment for prohibition back then, we just could have passed a federal law against it. If you really want to know the answer to this question, just read the debates in congress when prohibition was debated, and why everyone thought that a constitutional ammendment was consideered by everyone to be necessary to ban anything. ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [October 5, 2003, 3:10pm UTC](https://boards.straightdope.com/t/drug-laws-and-states-rights/182621/17 "2003-10-05T15:10:17Z")
> [@](#): > > I wonder if there’s any way to ever get the genie back into the bottle, and put a stop to this (in my opinion) misuse of the Commerce Clause? As has been noted, the Supreme Court has issued some decisions in recent years which have struck down laws which Congress passed relying on the federal governments power under the Commerce Clause. The Gun Free School Zones Act was one and more recently parts of the Violence Against Women Act. ---
**Author:** ![Susanann](https://avatars.discourse-cdn.com/v4/letter/s/7ab992/32.png) [@Susanann](https://boards.straightdope.com/u/Susanann)\ **Post date:** [October 5, 2003, 3:35pm UTC](https://boards.straightdope.com/t/drug-laws-and-states-rights/182621/18 "2003-10-05T15:35:17Z")
> [@](#): > > \*Originally posted by Otto \* > \*\* more recently parts of the Violence Against Women Act. \*\* what are you talking about? ---
**Author:** ![Duckster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/duckster/32/1244_2.png) [@Duckster](https://boards.straightdope.com/u/Duckster)\ **Post date:** [October 5, 2003, 5:38pm UTC](https://boards.straightdope.com/t/drug-laws-and-states-rights/182621/19 "2003-10-05T17:38:22Z")
[Violence Against Women Act of 1994](http://www.ojp.usdoj.gov/vawo/laws/vawa/vawa.htm) ---
**Author:** ![Cliffy](https://avatars.discourse-cdn.com/v4/letter/c/59ef9b/32.png) [@Cliffy](https://boards.straightdope.com/u/Cliffy)\ **Post date:** [October 6, 2003, 8:14pm UTC](https://boards.straightdope.com/t/drug-laws-and-states-rights/182621/20 "2003-10-06T20:14:20Z")
To be fair, the current scholarship seems to be largely of the opinion that the Switch was less a child of the court-packing plan (which was roundly criticized, even by Roosevelt’s allies) and more of an honest reevaluation of the jurisprudence by Chief Justice Hughes and Justice Roberts in the face of the continuing depradations of the Depression. (I’ve read that the case where the switch was made – Wickard v. Filburn, IIRC – was actually decided but not yet publicly revealed before the court-packing plan was announced, although of course the justices might have been advised about the plan before Roosevelt unveiled it.) Nonetheless, this is a fascinating period from a legal history standpoint. –Cliffy