On the question of who decides, I might be misinterpreting you but:

The supremacy clause states that the Constitution is the highest and final form of law in the land.

Judicial Review dictates that when the Constitution is unclear or conflict with itself, it is the Supreme Court who will tell us what it really means.

They have told us exactly what the Constitution says about distribution and possesion of illegal drugs entails and what authorities the State and Federal governments possess.

When I say lib or con, I am just using those terms to describe EVERY single member of the Court. They all fall neatly into place, aside from Kennedy.
None of them is going to declare Fed drug laws unconstitutional. Maybe... MAYBE... Ruthie could be convinced, but I highly doubt it.

It seems to me the real question for you is:

Do you believe in Judicial Review?

If not the Supreme Court to explain to us what is and isn't Constitutional then who?

You seem to be arguing, correct me if I am wrong, that you truly understand what is meant by "General Welfare" and the Supreme Court does not. (all of this after admiting no legal background)

In summary:
Do you believe in the concept of Judical Review?
Are you claiming the Supreme Court has errored on their interpretation of "general welfare" and "Necessary and Proper" in terms of Federal drug enforcement, while you, a layman can clearly see that they are wrong?


Ixtellor

P.S. None of this is to sound like a personal attack, or to question your intellect or to be hostile in anyway.

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George W. Bush "I don't think our troops ought to be used for what's called nation-building"

Blasphemy is a victimless crime.

Yeah, I hear you. Let's see, what I meant by "who decides" -

Consider a hypotethcial scenario in which "someone" has to make a judgement about what's in the "general welfare".

As you say, this role "should" be left up the Courts, constitutionally that would be "aligned". Their job is to "interpret" the Constitution, and therefore they get to make "conceptual" decisions like this.

However, that's something different from actually enforcing the law on the ground.

This "dispensation" issue is a very good example. So, for instance, the Courts say, "yes, there are potentially dangerous side effects to medicine, so we're going to regulate it in the public interest".

Okay, well, the word "interest" there, is of primary importance. Because, let's say someone wanted to kill themselves, and decided to take an overdose of this particular medication.

The various "arms" of the government come into play for different reasons, and at different times, in this scenario.

So, for instance, the FDA is interested in the "quality" of the medication. Part of their job is to make sure that what people say they're selling, is actually what they're selling.

But, they also enter into the picture in terms of the "scheduling", in other words, the "Scientific Advisory Panels" internal to those organizatiosn (NIH, NIMH, they all work basically the same way) - are actuatlly making these decisions "in specific cases" - not the Courts.

So what's happened, is that the Courts have essentially "delegated" their authority in this area, to the federal government.

Is the light bulb starting to turn on yet?

Hello??? Congress "delegates" its oversight to the Executive Branch, the Courts "delegate" their interpretive powers to the Executive Branch....

You see, so the 'letter" of the law, may be perfectly acceptable and Constitutional in specific cases, but the concept behind it can be very un-Constitutional indeed.

And vice vers - so, for instance, you can have a law-maker introducing wording into a bill for a specific purpose (like the example I gave in the other thread, about Adm. McConnell's testimoney before House Homeland Security committee), but that bill then becomes law -

So what happens next, is that the Courts have to start interpreting the wording instead of the intent. Am I right?

So the key, in these legal cases, is to force the issue of "intent" upon the Courts, and that way they must make a value decision, they can't simply "interpret" existing law.

And the way you do that, is by framing the argument in terms of a Constitiutional "conclict". I mean, anyone and their brother can say a law is "wrong", but that wouldn't be quite enough to challenge precedent, right?

So instead, what you have to do is to show that the scope of the precedent is inadequate, and once again a "conflict scenario" is your best bet in that regard.

I talked to a medical lawyer briefly this morning, he told me all kinds of interesting stuff about how the FDA "approval" process works.

But note, that this process has never been applied to marijuana.

Hmm.... I smell a "conflict" - don't you?

The part about delegating from the Court's to the legislative makes sense.
As you illustrated.

Court says "ok to regulate drugs for the welfare"
Congress writes laws to do that.

Is it not in the legislative bodies Constitutional authority to write laws for the general welfare?

The FDA an executive branch, FOLLOWS the law written by congress.
They tell us whats good and whats bad.

Lets do a Constitutional check list:

Congress Writes a Law: Check. That is their roll.
You sue. Check.
Supreme Court says "This law is Constitutional" Check
Congress can not enforce laws, so that hand it off to the FDA. Check
FDA follows the law. Tell us which drugs are ok, and which are not, and under what circumstance. (Prescription, etc) Check.

You seem to be saying the FDA is breaking the law, or not following it according to the letter of the law.

If that is the case, you or anyone else can sue, and then it goes back to the courts.

If they rule in your favor. Either the Executive or the Legislative will have to adjust accordingly, to who was breaking the law.
1) Upon further review, the law is unconstitional.
2) The law is constitutional, but FDA not following it.


Are you advocating that our Judicial branch and Executive branch should merge and we just go down to 2 branches?
I picked up that vipe based on the above quote.
It sounds like you want the Courts to be enforcing the law (In this case, that would entail testing and administering)

My summary of your argument:

The FDA is screwing you over because they are soo harsh on mary jane.
You feel they have not followed the letter of the law as written by Congress, and found Constitutional by the courts.

If so. Sue. The FDA does not have the authority to supercede the Congressional laws.

If not, just simply state, what it is you want to see happen.

I think they should just legalize all drugs.
(That takes congress not the courts)

And more importantly, how did a question about the 10th Amendment lead to your gripe with the FDA? It feels off topic.

Ixtellor

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George W. Bush "I don't think our troops ought to be used for what's called nation-building"

Blasphemy is a victimless crime.

The law has never stopped people from doing anything before...If they want to get guns, they'll get 'em somehow...

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"Duty is the most sublime word in our language. You cannot do more. You should never wish to do less." - Robert E. Lee

Super! Okay, thanks for that - so yeah, that tells me I need to "explain myself better"

These concepts are still forming, this "issue" is all of, what, seven or eight days old now....

Okay - so yeah, I wan't trying to suggest that the FDA was doing something illegal. I was just using that as an example for an argument based on "consistency" _ I mean, it's kind of a "miniature" version of the same set of concepts that are involved in anti-discrimination, escept the "Rights" and "Powers" in the latter case, stem from a slightly different section of the Constitution.

So yes, I mean, I can follow your logic, and it's "perfect" as far as it goes -

But now, cast it into a more global context. In other words, consider:

The FDA regulates many things, and it does not regulate others. Some things, it regulates more stringently than others - for instance, in the specific case of Scheduled substances, these fall both inside and outside the FDA's jurisdiction. They fall "inside" if there is a legitimate medical use (gee, there's that keyword again), but they fall "outside" because the Schedules are instituted under a completely different "philosophy", Constitutionally speaking, from the FDA. So that would be one argument -

Now, another, would be in the "nature" of the Schedules - in other words, the "mechanism" behind them. How is a drug promoted? How can it be removed? How can it be upgraded or downgraded?

Then, third, it is definitely true that all the Schedule 1 substances have "legitimate medical uses" - for instance, heroin is in the "cocktail" that's sometimes given to terminall ill patients, cocaine is still the anesthetic of choice for certain kinds of oral surgery, the hallucinogens have psychiatric uses, and marijuana -

And then there are religious exemptions, for instance, the USSC just ruled that a certain Brazilian Indian tribe has the right to import Scheduled substances into the US, distribute them, possess them, and use them, because it is an integral part of their religion.

So you see, in all these cases, there is a "conflict" - in the first, it would be "mechanistic", having to do with the equal application of the law. In the second, it would be a conflict between the government's "claims" and the opinion of the medical profession (which in this case would appear to be different, and that's why I asked the questiobn "who decides") - and then in the third case, that's the kind of conflict I'm looking for - a Constitutional conflict between either two rights, or two powers, or a right and a power (as in the example). See where I'm headed with this?

The idea is not to (*)(*)(*)(*)(*) and moan about this stuff, the idea is actually to be able to do something about it. I mean, "I" can't help in the specific case of Los Angeles (other than showing up at a protest or something, and I enerally try to be a little smarter than that when it comes to the "implementation" of politics) - but I'm a tenacious m/f when it comes to stuff like this, and I have no doubt that the feds are going to end up wishing they hadn't inadvertently touched upon my life in this unwanted manner.

But be that as it may - so, I'm not sure what argument I would make "just now", if I had to go before the Supreme Court "tomorrow", and besides, if if were that easy, as you say (where anyone could just sue anytime for any reason), then I have no doubt that NORML or someone like that would have done it a long time ago.

No, you really need a specific case, and furthermore, it has to be so "interesting" Constitutionally, that the Supreme Court is going to want to hear it.

This is going to take some careful thought. It's not something I can be definitive on "today or tomorrow".

So, your question was, how does this all tie in with the Tenth? Well, that was kinda the "low hanging fruit" in the Constitution, I mean, the first thing I did when all this happened (or, maybe the second or third thing), was to whip out my little pocket copy of the Constitution and start reading again, 'cause I was like, "hey, wait a minute, this it wrong - something's wrong and I want to find out what it is" -

So the next thing I know, I'm wondering what the hell "general powers" means - 'cause the darn Court has used that as an excuse for anything and everything, and so this question of who decides is very important -

I mean, "who decides" what's in the general welfare?

You'll probably say "the Courts", but thiink about it - they don't really, do they? They only get cases "after the fact", and then it's only to say whether the government does or does not have a certain Power -

So unless they're willing to step up to the plate in this regard, what happens "de facto" is they're passing that power on to the "rest" of government - as you say, primarily the legislative branch. But what are they saying then, really, when they're doing that? Basically they're opening up the "entire" spectrum of law, to a popular definition of "general welfare" -

So if this "usage" of the general welfare clause is correct, then what ends up happening is that the Court only ends up ruling on specific laws that are thought to be exceptions to "general welfare" - and that is exactly what we've seen in the last hunred fifty years or so, yes?

So, like, if tomorrow America suddenly became racist again (just to pull a silly example out of a hat), and We the People suddenly started passing laws that discriminate against... I don't know, Eskimos..... then the only reason the Court would ever get (or hear) the case, would be if it thought that there was a conflict between the "Power" of the government to address the general welfare (which in this case, has been delegated directly to the people via the legislative mechanism, especially in those States that have referenda), and the Rights of Eskimos to be treated equally under the law.

So, it is possible (remotely, but possible), that one could even make an "equal protection" argument in this case, because pot smokers are citizens, they work, they pay taxes, they vote, they serve on juries -

So the "public interest" has to do with the "individual interest" of the pot smoking citizenry, balanced against the "individual interests" of whatever people don't want them smoking pot -

See what I mean? You have to force the Courst to look at it top-down in this manner, otherwise they'll get away with looking at it bottom-up, and then you're screwed before you even start.

Anyway, that's where I'm at "so far", after eight days. I have all kinds of pokers in the fire on this one, unfortunately I don't have "very" much time to devote to it just now, but maybe after I get done with this next contract I can kick back for a while and consider issues like this -

'Cause I'll be a monkey's uncle if I'm going to let the feds regulate my personal medical treatment. Not in my backyard. That'll never happen as long as I'm alive (so by definition then, it'll "never happen" ).

You know, I don't think it's the "intent" of the law to make criminals our of sick people who need medical treatment. People have to do what they have to do, in these cases - I mean, some cancer patients go across the border to get cheaper drugs in Canada, and that whole things has taken a pretty interesting legal course, and some people are so bad they actually want to kill themselves, and that whole thing also has an interesting legal history, and then some people happen to want to use a controlled substance, and that decision should be up to the doctor, and not the government.

After all, it is the doctor who is supposed to decide what is "legitimate medical use" - I mean, when the government does this, they have to hire a panel of doctors, and when they want to find out whether a drug is ready for distribution they ask the doctors, and when they want to know what a drug is "good for", they ask the doctors -

So, who's been asking the doctors about the pot laws lately? Anyone?

And "lately" would be an interesting concept too - sunset provisions and all that - and a final historical note: note that they actually had to amend the Constitution to prohibit alcohol.

Tnls argument you just made (your "checklist"), is kind of a tautology, isn't it?

I mean, it brings us "full circle", doesn't it?

Because, now wer're right back to considering Constitutional questions.

Yes. The People have the right to make laws. Some of those laws conflict with Rights, in which case they may be un-Constitutional, and some of those laws conflict with Powers, in which case they may be un-Constitutional.

The Constitution is therefore an "outter boundary" on the content of laws. It doesn't regulate whether the People can pass laws, and it doesn't even regulate the content of those laws -

What it regulates, exactly, is the application of those laws, "after the fact". In other words, the Court "interprets" laws, which is its function.

So this is my claim, that the Tenth, was originally intended to be an outer boundary on Powers, in the same way that Constitutionality is an outer boundary on laws.

But it's one of those things that's either been corrupted or ignored through history, my best read so far is that the first major change was the Jamilton-Madison thing, and then it was really the Civil War that cast that "loose" interpretation of the Tenth firmly into stone (or seemingly so) -

And only just now, Scalia's name appears as a blip on the Tenth's radar screen, it's like "Hello..... what is this?"

I mean, correct me if I'm wrong, but what Scalia is essentially saying, is that the Tenth trumps "general welfare" in this case. Is that your read?

You wrote a lot and I will have to think about some of it...

but

If you find a conflict between an FDA Dr and the congressional laws.
Does not raise a Constitutional question.
If you find a conflict between an independant dr and FDA rules.
Does not raise a Constitutional question.

In summary, to this limited reponse, to get what you want:
1) Supreme Courts rule Fed can't regulate drugs - This isn't going to happen in our life times.
2) You convince Congress to change drug laws. This seems like a much easier and reasonable avenue, and possible in our life times.

While I think about the rest of what you wrote, see if this breaks down your argument into its most basic conclusions.


Ixtellor

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George W. Bush "I don't think our troops ought to be used for what's called nation-building"

Blasphemy is a victimless crime.

Fair enough.

However .. . (there's always a "however")....

I'm a greedy SOB, and I want "more" than just the drug laws.

'Cause this goes to the very heart of the Constitution.

I mean, think about it. Either the Tenth "does or does not" trump general welfare, and if it does, it may only do so in specific cases.

Which cases? Hmm...... 'Cause if you open up the entire spectrum of "all" the case law that might be affected by such a decision, you could rip the federal government apart from the ground up, and leave very little in place but a tattered pile of useless shreds.....

(I mean, if you go "the other way", and instead of waving your hands over the enumeration, you force the gov to enumerate "everything", then suddenly you've got a Constitution a mile long, and really the only thing that does is to move case law into the Constitution, which probably isn't all that meaningful, and probably isn't the desired result anyway) -

What I WANT, is for the Courts to enumerate Powers at a political level - ie the same level as "raise a militia, levy taxes, wage wars", etc - that kind of thing. Those Powers are explicitly enumerated in the Constitution - there are "words" that describe specifically what those Powers are. I think, if I'm not mistaken, that is exactly the intent of the Tenth, is it not?

The argument is, that "promote the general welfare" isn't specific enough to qualify as a Power, it's more like a "purpose" instead of a Power.

See what I'm getting at?

So really, if this issue is decided in the proper way, we can get "multiple" results with a single decision. Any decision that elevates the Tenth is certainly going to affect a lot of things.

And I suspect, that any such decision would have to be very carefully worded, because any way you slice it, it would be overturning precedent.

Of all the justices, it seems (or "seemed", prior to the Scalia surprise) that justice Stevens was the one who best understood this issue. Roberts is still an unknown quantity, he seems to side with business on a lot of things, and then there's also Alito, who's a very smart man but another unknown quantity. As "conservatives", you think they'd try to interpret conflicts in favor of the little guy, but hey, you never know in today's world, there's all kinds of statists that pass as conservatives, and sometimes even the liberals seem more conservative than the conservatives...