Red Dead Redemption 2 Has First Amendment Right to Use Pinkertons As Villains

RDR2In American history, the Pinkertons are a not-so-fondly remembered private security agency that did the government’s dirty work throughout the late 1800s and early 1900s: breaking up labor unions and arresting gang members (often via brutal means). At present, the Pinkerton Detective Agency still exists, and it would like the creators of the Old West-inspired video game Red Dead Redemption—in which the hired thugs appear, true to form, as notable villains—to pay up.

Take-Two Interactive, Red Dead Redemption 2‘s publisher, received a cease and desist letter from Pinkerton last month. “Although we are flattered by your clear affection for Pinkerton and the Pinkerton Marks, their prominent use in the game appears to be made with the intent to trade on the goodwill associated with the Pinkerton Marks,” wrote the company. The letter demanded a lump sum payment, or royalties.

Take-Two has refused to pay the ransom. This week, the company responded by filing a lawsuit against Pinkerton. The suit asks a judge to confirm Red Dead‘s First Amendment right to reference actual history, according to The Verge.

“Defendants ignore well-established First Amendment principles that protect expressive works, like Red Dead 2, from exactly the types of claims that Defendants have lodged against Plaintiffs,” Take-Two argues in its lawsuit.

The suit prompted Pinkerton to change its tune. In a statement, the agency claimed the game had misrepresented Pinkertons as bad guys:

One cannot rewrite history to create profit in the present at the expense of real-life people who represent a brand today. In the game, Pinkertons are seen shooting horses, shooting guns and firebombs into buildings where women and children are present, and as violent villains in the community. History tells a different story. Allan Pinkerton was a visionary businessman who created the country’s first detective agency in 1850. The logo he created features an eye, leading to the term “Private Eye,” which is a part of American lexicon today. After working as President Lincoln’s security detail and thwarting the first attempt on Lincoln’s life, the agency became the inspiration behind the creation of the Secret Service.

Pinkerton President Jack Zahran lamented that his employees must now explain to their video game-playing children “why Red Dead Redemption 2 encourages people to murder Pinkertons.”

If the agency were to succeed in this scheme of exacting payment from Take-Two, it would be an awful affront to free speech protections. Thankfully, this is one legal gunfight the Pinkertons should almost certainly lose.

“Pinkerton has nothing resembling a case,” Ken White, an attorney and contributing editor to Reason, told me via email. “Their claim is so preposterous that Take-Two’s very aggressive strategy—sue them for a declaration—is warranted and will likely be successful.”

Timothy Geigner of Techdirt reached the same conclusion, writing, “it’s quite difficult to imagine works of art having to license history in the way Pinkerton has suggested Take 2 should.”

After all, there is plenty of publicly available information on the Pinkertons’ activities in the 18th and 19th century, and they have made appearances in other media, including television shows like Deadwood and Sherlock Holmes stories.

“The notion that Pinkerton can somehow prevent entertainment use of its historical behavior is offensive and ridiculous,” said White. “Also, the Pinkertons were armed thugs for decades.”

If the matter goes to court, a judge should reach the same conclusion.

from Hit & Run

Brickbat: All Wet

Malaysian flagThe Malaysian government says it will not allow Israeli Paralympic swimmers to enter the country for a swimming meet later this year. The meet is a qualifying event for the 2020 Paralympics, and the International Paralympic Committee said it is disappointed with the country’s decision and is aiming to “find a solution” to the matter. Malaysia is one of the few Muslim countries to have no diplomatic ties with Israel and bans people with Israeli passports from entering the country.

from Hit & Run

City Officials Ordered San Francisco Man To Rebuild Exact Replica of Demolished Home. Now He’s Fighting Back.

Back in December, the San Francisco Planning Commission ordered property owner Ross Johnston to rebuild an exact replica of a mid-1930’s home he had torn down, lambasting him for destroying a historic home without obtaining the necessary permits.

Johnston is now hitting back, calling the city’s decision both absurd and lawless, and demanding that he be allowed to continue with the redevelopment of his property.

“The Planning Commission decision is invalid, bizarre, and illegal,” said Andrew Zacks, an attorney for Johnston, in a statement. Zacks argues that the order is baseless and runs against both the city’s designation that Johnston’s house—also known as the Largent House, after it’s original owner—was not of historical significance, and permits it had already issued that allowed for substantial renovations to his property.

The controversy around Johnston’s home—located in San Francisco’s Twin Peak’s neighborhood—got rolling back in late 2017, when neighbors began to complain that the renovation work on the Largent House had resulted in demolition of the entire structure, save for the original garage. The home had originally been designed by famed modern architect Richard Neutra.

This sparked outrage, and eventually, the intervention of the city’s Planning Commission, which last month ordered Johnston to rebuild the home exactly as it was, save for a small plaque explaining that it is a replica home, a decision the San Francisco Chronicle referred to as “unprecedented.”

Johnston also got a tongue-lashing from San Francisco Supervisor Aaron Peskin, who told the Chronicle: “The fact that it was a unanimous vote should send a message to everyone that is playing fast and loose that the game is over. We want to preserve iconic, historic structures, but even more important, we want to protect our reservoir of more affordable housing stock.”

Missing from the outrage over the demolition of Johnston’s home were some crucial details.

The first is that the home, at least as a matter of law, was not actually a historic resource of any kind.

Since its original construction, the Largent House has undergone extensive alterations, including the construction of a 20-foot retaining wall back in the 1950s, major fire damage repair in the 1960s, the addition a swimming pool in the 1980s, and the enclosure of said pool in the 1990s. A second floor was also added above the garage at some unknown date.

All these changes—plus the fact that no historically significant events are known to have occurred at the house—saw the city’s Planning Department declare in early 2015 that the home was not a historic resource.

“The subject property has also been altered so that it is impossible to know the original design intention of Neutra,” reads a January 2015 report from the Planning Department, noting that no photos of the initial design of the house exist.

Because of this lack of historical significance, the city issued permits in 2014 to allow for substantial renovations to the home that would have seen the one-bedroom, roughly 1,300-square-foot home converted into a 3-story, 3,600-square-foot home sporting four bedrooms.

Johnston’s attorneys are arguing both the lack of historical significance, and the prior approval of substantial alterations makes, the order to rebuild the Largent House patently absurd.

Johnston’s lawyers do concede that some of the demolition work done on the home exceeded what was allowed by those 2014 permits, but they argue that this was done for safety reasons when remodeling work in 2017 revealed several walls were not solid concrete, and thus would not support the alteration work approved by that 2014 permit.

The walls were thus removed, and an after-the-fact demolition permit was requested.

This horrifying decision, while unique, is in keeping with San Francisco’s nonsensical housing policies.

Reason has covered the case of Robert Tillman, who was forced to spend $23,000 producing a 135-page report proving that a laundromat he owns in the city’s Mission District—and which he has been trying to convert into an apartment building—is not, in fact, historically significant.

In a similar case, another San Francisco man looking to build a home on a vacant lot he owns in the city’s Glen Park neighborhood had to fend off the claims of neighbors who argued that a dirt path running through said vacant lot was actually a historic trail used by early Spanish Missionaries. Preservation of said dirt path took precedence over the construction of a home in the housing-starved city, they argued (ultimately without success).

San Francisco’s clunky bureaucracy will ensure that Johnston’s appeal stretches out for a while. It likely won’t be cheap for him, either.

In the meantime, the Planning Commission’s standing order that an expensive replica of an imagined past be rebuilt in lieu of new housing can serve as a good illustration of the attitude many in the city take toward new development.

from Hit & Run

Try Common Sense and Dump Old Right-Left Ideologies, Says Philip K. Howard in New Book: Podcast

Philip K Howard burst on the scene over 20 years ago with his best-selling book, The Death of Common Sense: How Law Is Suffocating America, which argued that out-of-control lawsuits and and rules and regulations were choking off vitality, innovation, and common decency. In 2002, he founded Common Good, a nonprofit whose credo is “simplify government, put humans back in charge, and cut mindless red tape.” In 2014, I interviewed Howard about his book The Rule of Nobody.

A lawyer by training and profession, Howard’s new book is Try Common Sense: Replacing Failed Ideologies of Left and Right. I spoke with him about how Americans might route around the federal government and get on with their lives.

Subscribe, rate, and review our podcast at iTunes. Listen at SoundCloud below:

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from Hit & Run

At Least Trump’s Dumb Space Force Is Giving Us a Steve Carrell Show

What happens when you combine a ridiculous government program with the brains behind one of the best sitcoms in television history? It sounds like we’ll have an answer pretty soon.

Netflix announced today that a workplace comedy show “about the people tasked with creating” President Donald Trump’s proposed Space Force is currently in the works. There aren’t any details regarding episode count or premier date, though we do know the show is being executive produced by Steve Carrell (who’s also starring), Greg Daniels, and Howard Klein.

All three are alumni of The Office, a comedy about workers at a fictional paper company that ran on NBC from 2005-2013. Carrell, of course, played Dunder Mifflin Scranton Regional Manager Michael Scott for The Office‘s first seven seasons. Daniels ran the show, while Klein produced several episodes during its nine-season* run.

Netflix announced the new project via a text-heavy video set to the iconic theme music of 2001: A Space Odyssey. “On June 18, 2018, the federal government announced the creation of a 6th major division of the United States Armed Forces,” the announcement says. “The goal of the new branch is ‘to defend satellites from attack’ and ‘perform other space related tasks’…or something. This is the story of the men and women who have to figure it out”:

There’s no way to know what the end result of Trump’s force will look like. But as is true of many wasteful government programs, there’s plenty to poke fun at.

For instance, there’s the fact that 36,000 people are already employed by the Air Force Space Command. It’s looking like the Space Force will exist under the branch of the Air Force, which makes you wonder how the two agencies will differ. Then there’s the issue of the potential weaponization of outer space, as the creation of the Space Force could trigger an international arms race.

It’s also worth noting that Air Force Secretary Heather Wilson (as well as former Defense Secretary James Mattis), have previously opposed the idea on the basis that more bureaucracy won’t help. Even without the Space Force, the Pentagon wastes about $125 billion a year on administrative inefficiencies. Adding to the alphabet soup of space agencies will probably just make that worse.

The Space Force TV show, meanwhile, sounds like it will be an expensive project, with sources telling Variety that Carrell will pull in more than $1 million per episode. But it’s sure to be cheaper than the actual Space Force, which could cost up to $13 billion in its first five years.

If there’s one silver lining to Trump’s absurd Space Force proposal, it’s that an Office reunion of sorts could be on the horizon. The new show “feels like a spiritual successor” to The Office, reported Deadline Hollywood, and most Office fans probably hope that’s true. In the six years that the show has been off the air, revival rumors have kept coming.

At long last, fans’ wishes may be coming true. And they can thank Trump’s Space Force idea.

*Correction: This post originally claimed that the American version of The Office ran for eight seasons. It actually ran for nine seasons.

from Hit & Run

The 100th Anniversary of the Ratification of the Amendment That Led to Prohibition Is a Reminder of the Lasting Damage Bad Policy Can Do

One hundred years ago today, Nebraska became the 36th state to ratify the 18th amendment, which set Prohibition in motion a year later. Prohibition is widely, and rightly, remembered as one of the 20th century’s greatest policy mistakes, and it contains more than a few lessons that remain relevant today.

The decision by the states and the federal government to outlaw the manufacture, sale, and transportation of most alcohol in the United States was born of racism, nativism, government paternalism, and moralizing religiosity.

As Harvard’s Lisa McGirr writes in today’s New York Times, Prohibition was fueled by white protestant disdain for urban immigrants and the saloons they frequented. Prohibition was backed by the Ku Klux Klan, and was promoted by former members of the Anti-Saloon League. The influential Women’s Christian Temperance Union called for the deportation of anyone who violated alcohol law but wasn’t a citizen. German beer makers were tarred as un-American. It was a moral failure, driven as much by spite towards the nation’s increasing foreign-born population as by concern about excessive drinking.

But Prohibition also failed on its own terms. Instead of putting a stop to problem drinking, it criminalized it, making it more dangerous in the process. Prohibition created a violent black market for alcohol that helped empower and enrich violent criminals in the process. Problem drinkers continued to imbibe. Many drinkers switched from relatively low-proof beer to much higher proof alcohol, which was easier to transport.

Under Prohibition, drinking was still common—see, for example, this 1932 map of Harlem speakeasies, which suggests that boozy nightlife flourished—but black-market liquor was more expensive, lower quality, and sometimes dangerous to drink, since producers had to keep their work hidden from the view of authorities. That necessity bred vast corruption, as bootleggers paid off government officials, effectively making police and politicians, many of whom continued to drink themselves, partners in their illegal operations. This, in turn, bred distrust in the government, which was plainly hypocritical in its operations.

Yet the effect of Prohibition was not to turn Americans away from the government. As McGirr writes, Prohibition “cracked the door open toward other forms of regulation. Not only did Prohibition forge the edifice of the federal penal state, but growing numbers of Americans looked to the federal government for solutions to social and economic problems.” Even, and perhaps especially, in failure, it created demand for further intervention.

For today’s policymakers and policy influencers, Prohibition remains a cautionary tale about government overreach: It was a dysfunctional and badly run system predicated on ugly, populist notions and deluded ideas about the power of government to solve social problems. Not only did it fail to accomplish its goals, it created a host of unintended consequences that were worse than the problems it was supposed to solve.

The straightforward lessons of Prohibition are obviously applicable to any number of public policy issues making headlines today, from the opioid crisis to marijuana legalization to immigration, and our elected leaders would be wise to heed them.

But there is another lesson from Prohibition that is often overlooked—not from its beginning, but from its end, more than a decade later, with the 21st amendment, which repealed the 18th. That lesson is that, with enough time, even the worst policy mistakes can be corrected. Progress may be halting and frustrating, but America can learn from its mistakes and change its course. Yes, the effects of Prohibition lingered on for decades, in the damage it did to cocktail culture, in the institution of restrictive state liquor laws, and in the overall growth of the state. But there is little danger that full-on Prohibition will return, and slowly but surely the similarly restrictive policies that have governed marijuana are being undone.

So yes, the anniversary of Prohibition is a warning of all the ways that government policies can go wrong, and the lasting damage the worst of those policies can do. But its eventual reversal and tainted legacy also offer reasons for hope. Prohibition’s end is a reminder that the very worst policies, no matter their scale, aren’t locked in place, and we aren’t stuck with them forever.

from Hit & Run

L.A.’s New Sheriff Rehires Deputy Fired for Alleged Stalking, Abuse

Sheriff Alex VillanuevaLos Angeles County’s new sheriff made it a campaign point that he was going to be focusing on the rank-and-file and rooting out cronyism from the leadership of the department. So it may come as a surprise to quite a few folks that he has just reinstated a deputy and campaign supporter who had been fired for allegedly stalking and physically attacking his ex-girlfriend.

Maya Lau at the Los Angeles Times reported Tuesday that Sheriff Alex Villanueva, who just took office in December, has hired back Deputy Caren Carl Mandoyan, who was fired in 2016 by then-Sheriff Jim McDonnell (whom Villanueva defeated in November’s election) for the alleged abusive behavior. Mandoyan’s firing was upheld by a county appeals board.

The Times notes that Mandoyan’s rehire is the only one of its type so far, but it certainly sends quite the message. Villanueva won’t explain why he rehired the deputy, explaining in a statement that California’s laws sealing police personnel records forbids doing so.

Prosecutors declined to file charges against Mandoyan, but the Times did get copies for an application for a restraining order the woman—a fellow deputy—had filed as well as a memo from the district attorney’s office describing the case. The woman was photographed with bruises and provided video evidence of him trying to force his way into her home. Prosecutors determined, though, that they didn’t have enough evidence to charge Mandoyan with a crime.

Mandoyan sued to get his job back but then dropped the suit last month after Villanueva was elected. Mandoyan was also part of Villanueva’s campaign, and he was photographed by the Times participating in a swearing-in ceremony in December for new hires at the sheriff’s department, holding the box of pins for the sheriff.

That this is how Villanueva chooses to move forward with his term as sheriff, after removing two officials from their jobs advising the department to make sure law enforcement officers are engaging in “constitutional policing,” has some folks concerned. From the Times:

“I’m a little flabbergasted and shocked that we’re now confronted with this kind of hiring policy,” Patti Giggans, the chairwoman of the Sheriff Civilian Oversight Commission, said of Mandoyan’s reinstatement. “It’s very disturbing. I think every commissioner will be very bothered by this.”

Out with the old administration’s cronyism, and in with the new? Villanueva’s public campaigning focused a lot on pushing immigration officials out of Los Angeles’ jails (McDonnell had allowed Immigration and Customs Enforcement staff to maintain an office in there). But Villanueva also made it very clear that he believed deputies and those in lower ranks were being unfairly punished. He says he wants to potentially create some sort of commission to rehear the cases of deputies who believe they had been wronged in some fashion by the sheriff’s department’s disciplinary procedures. Villanueva claims that he had previously been unfairly targeted for discipline by department leadership for political reasons and denied promotions.

We may end up learning more about Mandoyan’s case. With the start of the new year, new records about police conduct investigations are now covered by California’s Public Records Act. The sheriff’s department is supposed to release certain records about Mandoyan upon request, but there are limits and it’s not quite clear whether they’d apply here. The law covers cases of sexual assault by law enforcement officers or where they are caught engaging in deception on the job (like perjury, or concealing or fabricating evidence). So an investigation on domestic violence or stalking might not fall under the new release rules. But the Times has submitted a public records request to see what they can get about Mandoyan’s work history (similiarly, Reason has submitted a records request under the new rules for anything they have about Villanueva’s history of discipline).

What’s happening now should serve as a reminder of how hard it is to get rid of problem cops. But with these new public records laws, at least California residents can know who they are. Though law enforcement representatives are fighting to stop even that information from being released.

from Hit & Run

Why It’s Time To Disband the Women’s March

The upcoming Women’s March has been roiled in controversy and in-fighting. It has been accused both of catering to minority women and whiteFeminist Rally women too much. It’s progressive organizers have been accused of anti-Semitism and hobnobbing with Nation of Islam leader Louis Farrakhan, a man who stands for everything—misogyny, homophobia—that progressivism stands against.

It would be a mistake to dismiss such bitter feuds as merely birthing pains or a clash of personalities that happen in any embryonic (no pun intended!) movement, I note in my column at The Week. The fact of the matter is that if the Women’s March can’t overcome its internal differences and agree on an agenda, it’s because women’s problems today pale in comparison to those faced by other groups. Women confront discrimination—but less by virtue of being women and more by virtue of being members of some other, more marginalized or reviled group. So it makes no sense to try and shoehorn these other groups into a mass feminist movement.

“The sooner American feminists realize this, the easier it might be for the left to identify an authentic social justice movement focused on eliminating real oppression faced by genuinely marginalized groups, not relatively marginal concerns of powerful ones,” I note.

If American feminists want to march somewhere, they should try joining their sisters in Kerala, India, where five million women formed a human chain to protest actual gender discrimination this month.

Go here to read the whole piece.

from Hit & Run

Did SCOTUS Just Rule That Pickpocketing Is a ‘Violent Felony’?

In a divided ruling yesterday, the Supreme Court seemed to set a low bar for what sort of robbery offenses count as a “violent felony” under federal law.

The case, Stokeling v. United States, involved a career criminal facing a 15-year minimum prison sentence following his latest conviction, this time on a federal gun charge. It split the Court along interesting lines. Justice Stephen Breyer, normally associated with the Court’s liberal wing, voted with Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Samuel Alito in the majority. Chief Justice John Roberts, meanwhile, joined his more liberal colleagues—Sonia Sotomayor, Ruth Bader Ginsburg, and Elena Kagan—in the minority.

The actual facts of the case were not in question. After he was arrested in Florida on suspicion of burglary in 2015, police found a handgun in Denard Stokeling’s backpack. He eventually pleaded guilty and was convicted of illegally possessing the gun and ammunition. Thanks to the Armed Criminal Career Act (ACCA), which sets penalties for people convicted on federal gun charges who have three or more “violent felony” convictions on their record, Stokeling faced a minimum of 15 years behind bars.

Stokeling did not dispute that he had previously been convicted of home invasion, kidnapping, and robbery. But he did say the 1997 robbery conviction, stemming from an incident where he tried to steal necklaces right off a woman’s neck, should not have qualified as a “violent felony.” Rather than a minimum sentence of 15 years in prison for his gun conviction, Stokeling said he should be facing no more than 87 months (a little over seven years), according to CNN.

At issue was the definition of a “violent felony” under the ACCA and whether or not it encompasses Florida’s definition of “robbery.” According to the ACCA, a “violent felony” is “any crime punishable by imprisonment for a term exceeding one year” that “has as an element the use, attempted use, or threatened use of physical force against the person of another.”

Florida law, meanwhile, says that “robbery” is “the taking of money or other property…from the person or custody of another…when in the course of the taking there is the use of force, violence, assault, or putting in fear.” And as Thomas noted in his majority opinion, the Florida Supreme Court “has explained that the ‘use of force’ necessary to commit robbery requires ‘resistance by the victim that is overcome by the physical force of the offender.'”

In other words, robbery is not necessarily classified as a “violent felony” under the ACCA. “Physical force,” on the other hand, is. But the question in this case, as SCOTUSblog pointed out in October, did not involve the level of physical force Stokeling used in the necklace incident. Rather, the Court had to determine whether it’s possible, under Florida’s definition of robbery, to commit the crime without using “physical force.” If it is, then convictions under Florida’s robbery law, and possibly other states’ robbery statutes as well, wouldn’t qualify as violent felonies under the ACCA.

Ultimately, the Court said it’s not, with Thomas writing that the ACCA “encompasses robbery offenses that require the criminal to overcome the victim’s resistance.”

“Robbery that must overpower a victim’s will—even a feeble or weak-willed victim—necessarily involves a physical confrontation and struggle,” he wrote for the majority. “The altercation need not cause pain or injury or even be prolonged; it is the physical contest between the criminal and the victim that is itself ‘capable of causing physical pain or injury.'”

Thomas was quoting the late Justice Antonin Scalia’s majority decision in Johnson v. United States, which also involved the ACCA. The kind of physical force that could conceivably injure a victim, Thomas argued, “includes the amount of force necessary to overcome a victim’s resistance.”

But “Florida robbery…covers too broad a range of conduct to qualify as a ‘violent felony’ under the ACCA,” wrote Sotomayor in her dissent. She particularly took issue with Thomas’s wide interpretation of the word “capable.” In Johnson, “the Court could not have meant ‘capable’ in the ‘potentiality’ sense,” she said. “Rather, it meant it in the sense that its entire text indicates: ‘force capable of causing physical pain or injury’ in the sense that a ‘strong’ or ‘substantial degree of force’ can cause physical pain or injury,” she added, referencing the Johnson decision.

Sotomayor provided a few examples to back up her reasoning. “As any first-year torts student (or person with a shoulder injury) quickly learns, even a tap on the shoulder is ‘capable of causing physical pain or injury’ in certain cases,” she wrote, alluding to her recent shoulder dislocation.

Even minor uses of force fall under Florida’s definition of robbery, she said. But these are not violent felonies. “For example, the force element of Florida robbery is satisfied by a pickpocket who attempts to pull free after the victim catches his arm,” Sotomayor wrote. “A thief who grabs a bag from a victim’s shoulder also commits Florida robbery, so long as the victim instinctively holds on to the bag’s strap for a moment.”

“Florida law applies the label ‘robbery’ to crimes that are, at most, a half-notch above garden-variety pickpocketing or shoplifting” she concluded. And locking up such offenders for 15 years is not all necessary, she suggested.

Sotomayor does bring up some interesting points. In this case, it’s hard to have sympathy for Stokeling, who’s clearly a career criminal (whether he deserves to be put away for 15 years is another question). But it’s certainly possible to envision a scenario where a habitual pickpocketer or shoplifter is eventually convicted on a gun charge and sentenced to prison for longer than he or she deserves.

It remains to be seen what ramifications this ruling will have on future cases. In the meantime, you can read Thomas’s majority opinion and Sotomayor’s dissent here.

from Hit & Run

The Next Attorney General Says He Won’t Go After State-Licensed Marijuana Suppliers

At his confirmation hearing yesterday, William Barr, Donald Trump’s nominee to replace Jeff Sessions as attorney general, said he will not target state-licensed marijuana businesses, although he called the current conflict between federal prohibition and state legalization “untenable.” In response to questioning by Sen. Cory Booker (D-N.J.), Barr said he would prefer a uniformly enforced federal ban on marijuana but recognizes that the Obama administration’s accommodation of the newly legal cannabis industry, as reflected in a 2013 memo from then-Deputy Attorney General James Cole, created expectations on which investors have reasonably relied.

Although Sessions officially rescinded the Cole memo a year ago, U.S. attorneys have shown little enthusiasm for cracking down on marijuana suppliers who comply with state law, and Barr said he is not interested in doing that either. “I’m not going to go after companies that have relied on the Cole memorandum,” Barr said. “My approach to this would be not to upset settled expectations and the reliance interests that have arisen as a result of the Cole memorandum. Investments have been made, so there [has] been reliance on it. I don’t think it’s appropriate to upset those interests.”

Barr, an old-fashioned drug warrior, made it clear that he is not a fan of legalization. “We either should have a federal law that prohibits marijuana everywhere, which I would support myself, because I think it’s a mistake to back off from marijuana,” he said, or “if we want a federal approach, if we want states to have their own laws, let’s get there, and let’s get there the right way.” In response to a subsequent question from Sen. Thom Tillis (R-N.C.), Barr clarified that he meant Congress should change federal law if it wants the states free to set their own marijuana policies.

Although Barr’s remarks will be reassuring to all those cannabis investors, it is worth reflecting on his position that federalism is something Congress deigns to grant the states, as opposed to something the Constitution requires. Today marks 100 years since the ratification of the 18th Amendment, the result of an arduous process that prohibitionists recognized as the only legal way to accomplish their goal, because otherwise the federal government would not have had the authority to ban the manufacture and sale of alcoholic beverages. After the 18th Amendment was repealed in 1933, Congress no longer had that authority (except with respect to interstate trafficking in violation of state law, which the 21st amendment specifically addressed). There is no logical reason why these observations about the limits of federal power would apply to alcohol but not marijuana.

In fact, Harry Anslinger, the ardent pot prohibitionist who ran the Federal Bureau on Narcotics (FBN) from 1930 to 1962, conceded that Congress did not have the constitutional authority to ban marijuana. In 1931, as Anslinger was preparing a model marijuana prohibition law for the states, The New York Times noted that “there are no Federal laws on the growth or use of marijuana, the plant being grown so easily that there is almost no interstate commerce in it.” The Times reported that Anslinger “said the government under the Constitution cannot dictate what may be grown within individual States.” As late as 1937, the Times was saying the FBN “has admitted that its hands are tied by the fact that the marihuana weed is indigenous to so many States that its distribution is an intrastate problem.”

Later that year, when Congress passed the law that effectively banned marijuana at the federal level, it was framed as an exercise of the tax power, like the Harrison Narcotics Tax Act of 1914 (or, to take a more recent example, the individual insurance mandate imposed by the Patient Protection and Affordable Care Act of 2010). That’s the sort of maneuver Congress uses to accomplish indirectly what it lacks the authority to do directly. But when Congress passed the Controlled Substances Act of 1970, which includes a direct ban on marijuana, it abandoned any pretense of revenue raising. By then, thanks to a series of Supreme Court rulings that began a few years after the Marihuana Tax Act was passed, legislators took it for granted that they could do almost anything they wanted and justify it as an exercise of the power to regulate interstate commerce.

Those rulings culminated in Gonzales v. Raich, the 2005 decision in which the Court said that power somehow reaches a bag of marijuana in a cancer patient’s nightstand, even if the dried plant matter never crossed state lines, even if she grew it herself, and even if state law allowed her to do so. “If Congress can regulate this under the Commerce Clause,” Justice Clarence Thomas observed in his dissent, “then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers.”

Even Harry Anslinger understood what the Supreme Court now routinely denies: that interstate commerce does not include conduct that is not interstate or not commercial, let alone conduct that is neither. Barr complained that state marijuana legalization is “almost like a back-door nullification of federal law.” But that is a bad thing only if the federal law is legitimate, which marijuana prohibition is not.

from Hit & Run