Month: April 2022

The 2020 ballot initiative that made Oregon the first state to legalize psilocybin use instructed the Oregon Health Authority (OHA) to complete the regulations necessary to implement that policy within two years. The OHA, which plans to begin accepting applications from psilocybin manufacturers and “service centers” on January 2, is on track to comply with that requirement. Its proposed regulations should interest psychedelic fans and drug policy reformers, since they represent a groundbreaking effort to establish rules for producing, distributing, and consuming the main active ingredient in “magic mushrooms,” which the federal government has banned since 1968.

Measure 109, a.k.a. the Oregon Psilocybin Services Act, envisions businesses where adults 21 or older can legally take the drug under the supervision of a “facilitator” after completing a “preparation session.” It specifies that the “clients” of those “psilocybin service centers” need not have a specific medical or psychiatric diagnosis, leaving the door open for anyone interested in the experience for psychological, spiritual, intellectual, or recreational reasons.

That is a striking departure from the approach taken by the Food and Drug Administration (FDA), which has deemed psilocybin a “breakthrough therapy” for treatment-resistant depression and may eventually approve it for that purpose. Even when psilocybin is available as a prescription drug, its legal use will be limited to patients who qualify for that diagnosis or another medical or quasi-medical label.

Oregon’s proposed regulations, which are open to public comment until April 22, also differ from the FDA model in prohibiting synthetic psilocybin, specifying that the drug must be derived not only from fungi but from a single species: Psilocybe cubensis, which is one of hundreds that contain psilocybin. The rules also restrict growing media (prohibiting manure and wood chips because of concerns about microbial contamination); the solvents that can be used for extraction (allowing only water, vegetable glycerin, acetic acids, ethanol, and methanol); the forms in which extracts can be sold (banning those that “appeal to minors,” such as “products in the shape of an animal, vehicle, person or character”); and the way in which those extracts may be consumed (specifying that they “must be consumed orally”).

That last requirement, which explicitly rules out “transdermal patches, inhalers, nasal sprays, suppositories and injections,” could prove problematic. “Studies have shown that psilocybin therapy is effective in relieving emotional and existential distress at the end of life for 65-85% of terminally ill people in clinical trials, when administered properly,” Harris Bricken managing partner Vince Sliwoski notes on the firm’s Psychedelics Law Blog. “Many terminal patients cannot swallow….If OHA sticks to this ‘oral only’ stricture in the final rules—based on a restrictive reading of Measure 109 or for any other reason—you can expect some controversy and perhaps even legislative intervention.”

The OHA’s proposed regulations include some other weird or questionable elements. They say “manufacturers are prohibited from applying pesticides to fungi or growing medium,” for instance, while also requiring rejection of any extract batch when testing “detects the presence of a pesticide above action levels in any sample.” If it is possible to use pesticides but still comply with the latter rule, you might wonder, why is an outright ban necessary? Manufacturers also would be prohibited from “producing psilocybin by using genetically modified organisms such as bacteria,” a rule that seems even more dubious.

Measure 109 charges the OHA with setting training requirements for facilitators, including coverage of “social and cultural considerations.” The authority arguably went overboard with that mission.

The OHA plans to require that trip sitters complete a 120-hour, nine-module curriculum administered by licensed trainers, including 12 hours on “Cultural Equity in relation to Psilocybin Services.” Under that heading are topics such as “cultural equity, its relationship to health equity and social determinants of health”; “racial justice, including the impact of race and privilege on health outcomes and the impact of systemic racism on individuals and communities”; “the impact of drug policy on individuals and communities”; and the “history of systemic inequity, including systemic inequity in delivery of healthcare, mental health and behavioral health services.”

However one might quibble with the details of the OHA regulations, Measure 109 is creating an option that did not previously exist: Service center customers will be able to legally consume psilocybin of known provenance and dose, produced in sanitary conditions subject to rules that provide assurances of quality and safety that are generally hard to come by in the black market. And psychedelic users who rebel at the OHA’s requirements can still resort to self-help. Oregon voters made that option less legally perilous on the same day they passed Measure 109, when they also approved a trailblazing ballot measure that eliminated criminal penalties for drug use.

The post Under Oregon's Proposed Rules, Legal Psilocybin Will Be All-Natural, Organic, and GMO-Free appeared first on Reason.com.

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The Duke Center for Firearms Law recently published my short essay on “Guns, Property Rights, and Takings.” My piece is part of a symposium on “Privatizing the Gun Debate.” Several additional contributions will be posted in the near future.

Here are some excerpts from my essay:

In recent years, some two dozen states have enacted laws requiring private property owners to allow employees, customers, and others to bring in guns or store them on their land and buildings. Variously known as “parking-lot laws” and “gun-at-work” laws, such regulations are a serious violation of property rights. In many cases, they may also qualify as a taking requiring compensation under the Supreme Court’s 2021 ruling in Cedar Point Nursery v. Hassid.

I am a supporter of strong Second Amendment rights to keep and bear arms…. But laws forcing unwilling private property owners to accept the presence of guns do nothing to protect the Second Amendment, undermine individual autonomy, and – at least in many cases – are themselves unconstitutional….

[T]hese laws are often cloaked in the rhetoric of the Second Amendment. But, in fact, they do nothing to protect Second Amendment rights. Like most other constitutional rights, the Second Amendment constrains only the government. It does not require private individuals to possess guns or to accept their presence on their land. In that respect, it is similar to other provisions of the Bill of Rights. For example, the First Amendment does not require private owners to allow on their land every kind of speech protected against censorship by the state….

There are multiple good reasons to allow private owners to bar guns from their land, if they so choose. Those reasons dovetail with standard general accounts of the advantages of private property.

Perhaps the most fundamental of these is the link between private property rights and individual autonomy. One of the main advantages of being a property owner is the right to use your land as you see fit, even if other members of the community don’t understand your reasons, or even disagree with them. Some people object to the presence of guns on their land for aesthetic or moral reasons (e.g. because they are staunch adherents of a philosophy of nonviolence). Such autonomy deserves respect, even if we disagree….

A closely related rationale for respecting property rights in this context is the danger of imposing a one-size-fits-all rule on a wide range of owners with very different situations and needs. Even owners who do not object to the presence of guns on principle may have good reasons for barring them in some situations….

It is also important to recognize that allowing owners to bar guns enhances not only the liberty of the owners themselves, but also that of customers and clients who, for whatever reason, prefer to patronize gun-free spaces. If a state law requires all private owners (or even only all businesses or employers) to allow the presence of guns, such gun-free options will be eliminated for everyone – owner and customer alike….

Sadly, the imposition of mandatory gun-access laws on property owners is part of a more general turn against private property rights by many conservatives, in recent years. Other examples of the same tendency include widespread right-wing support for the use of eminent domain to build Trump’s border wall, advocacy of laws forcing social media firms to host speech they object to, and legislation barring private owners from imposing Covid-19 vaccination requirements as a condition of employment or entry on their land….

The political left, of course, has its own longstanding dubious anti-property tendencies. Among other things, many support “NIMBY” zoning restrictions, and harmful uses of eminent domain….. But that in no way excuses the growing bad behavior of the right….

In addition to unjustly undermining property, many mandatory gun-access laws also violate the Takings Clause of the Fifth Amendment, which requires the government to pay “just compensation” whenever it takes private property rights.

Before last year’s ruling in the Cedar Point case, conventional wisdom assumed that, under Supreme Court precedent, only a “permanent physical occupation” of property qualifies as a per se taking automatically requiring compensation under the Takings Clause….

Cedar Point involved a challenge to a California law requiring agricultural growers to give union organizers access to their property for three hours per day, 120 days per year.

In a 6-3 decision…., the Supreme Court struck down the California law, and established the rule that “a physical appropriation is a taking whether it is permanent or temporary.” Thus, the California law qualifies as a taking, even though the union organizers were given access to growers’ land “only” 360 hours per year….

As Joseph Blocher explains in an insightful September 2021 post at the Duke Center for Firearms blog, the Court’s reasoning in Cedar Point readily applies to parking-lot and gun-at-work laws. Here too, the government requires property owners to accept the presence of people (armed gun owners) and objects (guns themselves) the owners would prefer to keep out. In most cases, the presence of the guns and gun owners is only temporary (limited to working hours). But, under Cedar Point, that distinction no longer matters.

Indeed, depending on the hours the business or other regulated enterprise keeps, the amount of unwanted intrusion required by gun-access laws might be considerably greater than that at issue in the Cedar Point case…..

Even if property owners succeed in proving that parking-lot laws are takings, it is not clear how much compensation they would get…..

But even if property owners get only modest compensation, it might still be enough to deter state and local governments from adopting and enforcing parking-lot laws and other similar regulations. Even if liability is small on a per-hour basis, the costs may well mount up, over time, as courts assess liability for many thousands of hours of mandated gun storage and access each year. That is especially likely if the law does not limit the number of guns that must be accommodated.

The post Article on "Gun Rights, Property Rights, and Takings" appeared first on Reason.com.

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Last Friday, Chief Judge William Pryor of the U.S. Court of Appeals for the Eleventh Circuit delivered a lecture responding to calls for “common-good constitutionalism” by some conservative pundits and legal scholars. This lecture, “Against Living Common Goodism,” was the Keynote address at the Federalist Society’s 2022 Ohio Chapters Conference and is now available online (including as a nicely formatted PDF).

Judge Pryor’s lecture take direct aim at the work of Harvard Law School’s Adrian Vermeule, in particular, and argues that there is little to distinguish “common good constitutionalism” from progressive legal theories of a living constitution, other than its explicit political valence.

Here is a taste:

I want . . . to address a kind of results-oriented jurisprudence that is indistinguishable in everything but name from Justice Brennan’s living constitutionalism: Harvard Law Professor Adrian Vermeule’s so-called common-good constitutionalism—a variant of what I call living common goodism. Vermeule’s approach, in his words, “take[s] as its starting point substantive moral principles that conduce to the common good, principles that [judges] . . . should read into the majestic generalities and ambiguities of the written Constitution.” Replace “common good” with “human dignity” and Vermeule’s living common goodism sounds a lot like Brennan’s living constitutionalism. Indeed, the difference between Brennan’s living constitutionalism and Vermeule’s living common goodism consists mainly in their differing substantive moral beliefs; in practice, the methodologies are the same.

Although I disagree with Vermeule’s view, it would be a mistake to dismiss it out of hand. To be sure, there is little evidence that many judges or lawyers have been persuaded by Vermeule but his view is being taken seriously by at least some law students. And because the history of the Federalist Society proves that minority views can become prevailing ones, we should take seriously even mistaken views like living common goodism. So I want to explain why Vermeule’s view is mistaken.

The Constitution does not give judges the power to “read into” the text of the Constitution “substantive moral principles that conduce to the common good. And fashioning that kind of jurisprudence would conflict with natural law. As Professor Robert George has explained, when courts exceed their jurisdiction and usurp “legislative authority,” whether for good or bad causes, “they violate the rule of law by seizing power authoritatively allocated by the framers and ratifiers of the Constitution to other branches of government.”

And from Judge Pryor’s conclusion:

I will close by quoting from Justice Benjamin Curtis’s dissent in Dred Scott v. Sandford. I do so because Vermeule repeatedly invokes the living-constitutionalist myth that Dred Scott is “the most clearly proto-originalist decision.” Justice Curtis, like the courts that later rejected Riggs, repudiated the approach that would allow judges to read unmentioned exceptions into unambiguous texts. When addressing whether the Supreme Court had the authority “to insert into . . . the Constitution an exception of the exclusion or allowance of slavery” to Congress’s express “power to make all needful rules and regulations respecting” territories, Curtis rejected Chief Justice Taney’s majority opinion as anti-textualist:

To engraft on [the Constitution] a substantive exception not found in it, . . . upon reasons purely political, renders its judicial interpretation impossible—because judicial tribunals, as such, cannot decide upon political considerations. Political reasons have not the requisite certainty to afford rules of judicial interpretation. They are different in different men. They are different in the same men at different times. And when a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.

Justice Curtis’s textualist dissent in Dred Scott rejected living common goodism. So should you!

This is Judge Pryor’s second recent lecture addressing challenges to originalism. Last fall, Judge Pryor delivered the Joseph Story Lecture at the Heritage Foundation on “Politics and the Rule of Law,” in which he responded to calls for a “common good originalism.” As one might suspect, Judge Pryor is not interested in these reformulations, and would prefer continued adherence to the real thing.

The post Judge Bill Pryor Challenges Common-Good Constitutionalism appeared first on Reason.com.

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During his Fox News appearance on Sunday, Sen. Ted Cruz (R–Texas) said that Supreme Court nominee Ketanji Brown Jackson and other public defenders root for criminals because “their heart is with the murderers.”

Ted Cruz goes on a bizarre, lie-filled rant against public defenders:

"Public defenders often have a natural inclination in the direction of the criminal."

Reminder: every American is constitutionally guaranteed legal representation. pic.twitter.com/wg0hvwwydV

— American Bridge 21st Century (@American_Bridge) April 4, 2022

“She came out of law school, and she clerked for Justice Breyer on the Supreme Court. And she became a federal public defender,” Cruz said. “And you and I have both known public defenders. People go and do that because their heart is with criminal defendants. Their heart is with the murderers, the criminals, and that that’s who they’re rooting for. A lot of the same reasons people go and become prosecutors—because they want to lock up bad guys—public defenders often have a natural inclination in the direction of the criminal. And I gotta say that inclination was not just while she was a public defender, but she carried it onto the bench.”

Our adversarial system of justice depends on defense attorneys making the government prove its case and meet a high burden of evidence. The Sixth Amendment guarantees the right to counsel to make sure everyone—the unpopular, the poor, and yes, even the guilty—has the benefit of a dogged defense against the government’s power to relieve them of their liberty and property.

Supposed conservatives like Cruz should welcome this skepticism of government power, but he and others, like Sens. Tom Cotton (R–Ark.), Lindsey Graham (R–S.C.), and Josh Hawley (R–Mo.), used Jackson’s confirmation hearing to demagogue and grandstand about the horror of her representing Guantanamo Bay detainees.

As Charles Cooke notes over at National Review, using Cruz’s logic, we could also conclude that Cruz has a natural inclination toward banning dildos, since he argued in favor of Texas’ ban on sales of sex toys when he was the state solicitor general.

Cruz would argue, and has argued, that he was merely doing his job, which was to defend the laws passed by the Texas Legislature. State attorney general offices often trot out this line when it’s convenient. Vice President Kamala Harris, despite saying she personally opposes the death penalty, defended California’s execution protocols as state attorney general, citing her duty to defend her client. 

Whether state attorney generals are ethically bound to defend what they consider unjust or unconstitutional laws in the same way a defense attorney must zealously represent their client, though, is a trickier and largely unresolved question. For example, Harris somehow found the political courage to shirk her supposed duty when she refused to defend California’s Prop 8, which banned same-sex marriage. “It’s well within the authority vested in me as the elected attorney general to use the discretion of my office to make decisions about how we will use our resources and what issue we will weigh in on or not,” Harris said.

Public defenders don’t have the luxury of choosing not to defend a client when it’s a political liability. That’s what makes them an indispensable part of our court system.

Ted Cruz went to an Ivy League law school and clerked for a Supreme Court justice. He knows all this, but he’s an unserious person using his perch in the U.S. Senate to get on the TV and spout unserious arguments. It’s an embarrassment.

The post Ted Cruz Hates Due Process appeared first on Reason.com.

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