Aaland
- posted by Jim Leitzel @ 11:09 PM

The introduction of smokeless tobacco snus, a popular product in Sweden and Norway, into US markets is proceeding apace. Snus isn't very popular in the rest of Europe -- or at least any notional popularity is ineffectual -- because sales of it are banned in the EU (excepting Sweden). [Surely we all recall that Norway is not in the EU.] Two years ago Vice Squad noted how snus was certain to doom the EU, thanks to Finland's Aaland archipelago -- historically, culturally, and linguistically Swedish, Aaland is none too pleased at not being allowed to sell snus, because of Finland's membership in the EU. And none of those Finnish EU parliamentarians represent Aaland.

Aaland is currently reflecting its sense of abuse over snus by threatening to vote against the EU's Lisbon treaty. (Recall Vice Squad's post from late March.) That alone would not keep the treaty from entering into force, as long as EU-member Finland (and all other EU members) do ratify the treaty. An Aaland rejection, though, would complicate internal Finnish politics, as it would have to be settled to what extent EU rules would apply in Aaland. Here's an article with some helpful background, suggesting that Aaland's principled position is one of opposition to prohibition (of snus) without (EU) representation.

Labels: EU, federalism, Finland, snus

 
Aaland to Opt Out of EU Reform?
- posted by Jim Leitzel @ 10:07 PM

Ever since Vice Squad raised the alarm in February 2006, European Unionphiles have not been sleeping soundly for fear that the smokeless tobacco snus could lead to the unravelling of the EU. Sure, the signing of the Treaty of Lisbon (the watered-down replacement for the twice-popularly rejected European Constitution) in December of 2007 heartened the Unionists. But what will Aaland say? The semi-autonomous archipelago, officially part of Finland, though Swedish (and hence snusish) in culture, might choose not to ratify the Lisbon Reform Treaty! A treaty rejection in Aaland would not consign the Lisbon Treaty to a place next to its Constitutional predecessor on the ignominious trash heap of failed international agreements. As long as Finland and all the other state members of the EU ratify Lisbon, it will go into effect. But if Aaland opts against ratification, the treaty would not apply to Aaland, even as it would apply to the rest of Finland. Aaland would essentially be out of the EU, despite being part of a state that is (otherwise) an EU member. What discord follows?

Labels: EU, federalism, Finland, snus, Sweden

 
A Federalism Quandary
- posted by Jim Leitzel @ 10:28 PM

Back in the late 1800s and early 1900s, alcohol was taxed at the federal level, but illegal in some states. This created a bit of friction, as alcohol dealers (operating illegally within a state, if their alcohol was for beverage purposes, not industrial or sacramental or medical use) would sometimes pay their federal taxes. The federal tax rolls, therefore, could be used (and were used) to identify state lawbreakers. Some federal license holders tried to argue that state prosecutions based on federal tax payments violated the self-incrimination clause of the 5th amendment, but that argument generally was not availing. Some states (twenty-eight states, by 1917) even passed laws that made the payment of federal alcohol taxes for beverage alcohol a prima facie state crime. (See Chapter 5 in Richard Hamm's Shaping the Eighteenth Amendment.)

Today we are witnessing a curiously symmetric problem. Medical marijuana is legal in many states, but is illegal as a matter of federal regulation (except for those handful of patients who are provided with federal marijuana). States want to tax the sales, but what marijuana provider wants to provide tax records that could be used for a federal prosecution? I hope that the self-incrimination argument -- which on the merits seems to be airtight from the point of view of this non-lawyer -- proves to be more persuasive this time around.

Thanks to Radley for the pointer.

Labels: alcohol, federalism, marijuana, Prohibition

 
The National Age Minimum for Alcohol Threatened?
- posted by Jim Leitzel @ 11:28 PM

A bill is progressing in the Vermont Senate that would call for an examination of lowering the state's drinking age. Unless the feds alter their own legislation, any state that transgresses federal will by instituting a drinking age below 21 will pay -- to the tune of 10 percent of the state's share of federal highway funds. Nevertheless, there is revolt brewing in various state legislatures.

Vermont is the home of Middlebury College, whose former president has been an advocate for a lower minimum drinking age. He now directs Choose Responsibility, a nonprofit organization devoted to the cause. Here is part of the Waiver proposal from Choose Responsibility:

Choose Responsibility believes federal legislation should not penalize states who choose to participate in a pilot alcohol education program based on a minimum drinking age of 18. Thus, it is our belief that:

• States that present a plan for educating and licensing young adults that can maintain low levels of fatalities while lowering the drinking age ought to be granted a waiver of the 10% reduction penalty for a minimum of five years.
• States should create a mechanism to collect relevant data required to monitor the effects of the change in law.
• State should submit these statistics to Congress (or its designate), along with an analysis of the effects of the waiver from its inception, and may or may not request either an extension of he waiver.
• Individual state proposals must include the guidelines for eligibility and suspension of licenses proposed in the model program.

Vice Squad supports the end of the federal mandate on the minimum drinking age, though any transition period to a lower age could be tricky. Beyond Choose Responsibility's education and licensing suggestions, higher alcohol excise taxes could be used as a supplementary method to help limit teen drinking when a state abolishes its prohibition on 18 to 20-year-old drinking. (Vice Squad supports higher alcohol taxes generally, but another possibility might be to have an age-specific tax, where 18-20 year olds face higher taxes.) Also, the drinking age could be staggered, such that 19 and 20 year olds, for instance, could be licensed to purchase wine and beer, but not spirits.

New Zealand lowered its drinking age from 20 to 18 in 1999. Though there have been reports of increases in some types of alcohol-related harms, efforts to re-raise the age have not garnered sufficient political support.

Labels: alcohol, federalism, New Zealand, teens

 
Medical Marijuana Use: States vs. the Congress
- posted by Michael @ 3:03 PM

The recent decision by the California Supreme Court upholding the right of employers to fire employees who use marijuana for medical purposes in compliance with California’s Compassionate Use Act has continued the troubled history of medical marijuana use in California and other states that have made such use legal. One of the arguments of the Court’s majority was that marijuana use for any purpose remains illegal under federal law and California law “does not require employers to accommodate the use of illegal drugs.” This discussion reminded me of a paper by Robert Mikos that he presented at the Midwestern Law and Economics Association meetings in October of last year. The paper, which was a work in-progress, discusses medical marijuana use as a case study of the power of the states to authorize activities prohibited under the federal law (here is an abstract). I think the paper makes some interesting points with respect to medical marijuana use and it might be useful to summarize Mikos’s central argument here.

As Mikos points out, when the US Congress has the authority to regulate an activity, this authority trumps the conflicting state laws. It follows that when the Congress authorizes an activity prohibited by state law, the latter is unenforceable and, therefore, irrelevant. The situation is different, however, when Congress prohibits an activity that is permitted by the state. This is because the Congress does not have a general authority to command the states to undertake a certain action. Therefore, as long as the states that permit medical marijuana use limit themselves to not prosecuting the users (as opposed to actively assisting marijuana growers, helping them procure marijuana, etc.) there is nothing that the federal authorities can do against the state. Of course, the federal authorities can still prosecute medical marijuana users under federal law, but the feds simply lack the enforcement powers to do this on a massive scale (Mikos cites another source stating that only about 1% of all marijuana cases are handled by federal authorities). The state, however, may not be able to protect effectively information it gathers as part of its registration process about medical marijuana users and their enablers (e.g., caregivers or doctors who prescribe it) because the feds do not have to respect state confidentiality laws. Therefore, if the state wants to control and monitor medical use of marijuana by registering users and enablers, it puts them in danger of federal prosecution. This results in two potential problems. First, states may decide not to register medical marijuana users, as California, Maine, and Washington have apparently decided to do. Second, in the states that require registration, the eligible users might not want to register. Neither outcome is presumably desirable either from the state or even from the federal point of view. For example, if the states do not require registration of eligible medical marijuana users, such eligibility may be ascertained ex post, making it costlier for the state law enforcement to verify it. Also, the eligible users may suffer confiscations and even brief incarceration while their eligibility is verified. All this may significantly reduce the desire and ability of the state’s law enforcement agencies to prosecute all marijuana users, whether eligible for medical use or not.

Mikos’s policy conclusion is that “Congress may find it worthwhile to shield state registries from federal law enforcement agents, in order to preserve some level of control of marijuana at the state level.” My view is that it is hard to expect this level of rationality from our lawmakers on this issue. Otherwise, the current complete prohibition regime with respect to marijuana at the federal level would have probably ended a long time ago.

Labels: federalism, marijuana

 
How Laws are Made, Ohio Version
- posted by Jim Leitzel @ 10:16 PM

In mid-2005, when the Supreme Court ruled that states could not discriminate against out-of-state wine producers in setting their rules for direct shipments to consumers, Vice Squad member Michael noted that the required unification might not lead to liberalization of direct shipment laws -- states could unify their rules (that is, end discrimination against out-of-state producers) by attaching to in-state producers the same burdens they had previously imposed only upon the out-of-state vintners. Ohio has taken a different tack, however, one that makes an end run around the law. Only small vineyards are allowed to make direct shipments to consumers. Why lo and behold, what do you know, all of Ohio's in-state wine makers are small enough to qualify to make direct shipments! Too bad that those big California wineries don't make the grade, but hey, this is evenhanded legislation.

I think that this law will have a hard time surviving judicial review. The fig leaf covering the unconstitutionality is that Ohio's definition of a small winery used a production quota that wasn't just any arbitrary number that protected all of the in-state producers. Rather, Ohio pulled the quota from the federal tax code, from a provision that offers a tax break to small vineyards. But the intent of this Ohio law is so obviously discriminatory -- the protective intent is admitted by one of the supporters, who says it was viewed as a 'jobs bill' -- that a federal court should have little trouble seeing through or around the fig leaf.

Details of how such a bill could become a law -- not for the squeamish -- are here. Thanks to Jonathan Adler of the Volokh Conspiracy for commentary and the pointer.

Labels: alcohol, federalism, free trade, licensing, Supreme Court

 
Vertical Integration in the Cigarette Market
- posted by Jim Leitzel @ 11:54 PM

Many Native American tribes sell cigarettes from their reservations, in part because such sales, formally or informally, are not subject to the usual array of federal and state taxes. But not many reservations actually manufacture the cigarettes that they sell. A Washington state tribe, however, intends to become a cigarette producer, using tobacco grown in the southwestern US:

The Squaxin tribe, located on a small patch of land 50 miles southwest of Seattle, will begin selling its "Complete" brand of cigarettes made by its Skookum Creek Tobacco company for $16 for a carton of 10 packs.

That's about the price of two packs of premium-brand cigarettes in New York City, and well below the $35 to $70 per carton normally charged in the United States. Premium brand and generic cigarettes can be bought on other Indian reservations for as low as $22 per carton.

Labels: federalism, Native Americans, taxes, tobacco

 
Alcohol Prohibition Repeal in South Carolina
- posted by Jim Leitzel @ 6:06 PM

Today's Charlotte Observer has an interesting article by a historian about the months in 1933 between Congress voting for repeal of Prohibition and its ratification by the states. The end of Prohibition restored South Carolina's liquor control to the state's 1895 constitution, which allowed beer and wine but not liquor to be sold in taverns. Later, the state legislature passed a bill that allowed most adults over 21 to obtain a quart of whisky per month for medicinal purposes. (This law presumably would have been legitimate even had Prohibition remained in force, as medicinal alcohol was exempted.) South Carolina held an election on repeal of the national Prohibition, and repeal was defeated -- though shortly thereafter the requisite number of states did ratify repeal, ending Prohibition. One point that I find confusing about the article is the end, where it is suggested that repeal rendered the "quart per month" law moot. But as that was a state law, and repeal returned alcohol control to the states, I don't see why repeal would render the law moot.

South Carolina might alter its state constitution in the near future, to stop requiring the use of mini-bottles for liquor sales at bars. (The things that make it into a constitution, eh?)

Speaking of repeal of Prohibition, Professor Zywicki of the Volokh Conspiracy has concluded his "Wine Wars" series, with a flurry of posts (parts 12 through 17) this weekend. (Vice Squad has promoted Wine Wars in the past.) You will recall that Prof. Zywicki has been explaining why, in his view, the 21st Amendment that eliminated Prohibition does not empower states to discriminate against out-of-state alcohol distributors or manufacturers -- by his reckoning, states can choose highly restrictive alcohol regimes, but must apply them evenhandedly, to state and out-of-state sources alike. One problem with his view is that in a dissenting opinion in a 1987 case, Justice O'Connor (with Chief Justice Rehnquist joining) drew the conclusion that the 21st Amendment did indeed give the states essentially carte blanche to do as they please with respect to liquor regulation. The O'Connor opinion was largely based on the legislative history of the 21st Amendment, and Professor Zywicki's posts argue that any full and fair reading of that history does not support the O'Connor conclusion.

Labels: alcohol, federalism, Prohibition, Supreme Court

 
Alaska Personal Use Pot Wins One in Court
- posted by Jim Leitzel @ 8:59 PM

Last One Speaks brings our attention to a court case in Alaska concerning a fellow who was charged with growing pot in his home. It turns out that having a little bit (less than 4 ounces) of pot in your home is not going to get you in trouble with Alaska state authorities, although you could still find yourself in a mess of trouble with the feds. (As always, I am not a lawyer and I am wrong much of the time, so do not rely upon any of the "information" presented on Vice Squad.) The Alaska Court of Appeals ruled that the search warrant that led to the arrest of the alleged gardener was invalid. To obtain a search warrant, the court said, the police must have reason to believe that there is more than 4 ounces of pot in the home, or that it is being used in connection with a crime. The Alaskan Attorney General reacted to the ruling by calling for more of that 'federal meddling in state and local affairs,' the recently-cited main problem with alcohol Prohibition.

Labels: federalism, marijuana, Prohibition, search

 
Wine Wars by Professor Zywicki
- posted by Jim Leitzel @ 6:55 PM

Two weeks ago I mentioned that Professor Todd Zywicki was blogging about the coming Supreme Court case concerning direct interstate shipment of wine to consumers. Last week, Mike mentioned more of Professor Zywicki's connected posts, these on the pre-Prohibition attempts to preclude alcohol production in wet states from undermining the dry laws of neighboring states.

The Wine Wars series now comprises some eleven posts, plus unnumbered posts. Here's number eleven, the most recent, which argues that a 2000 amendment to federal alcohol law was still premised on the notion that, while states could choose their own alcohol policies, they could not discriminate between in-state and out-of-state producers and distributors. There's an unexpected connection to anti-terrorism activity, too.

Professor Zywicki's Wine Wars series presents a pretty comprehensive brief for the notion that it is unconstitutional for states like Michigan and New York to forbid direct shipment of wine to households from out-of-state wineries, while permitting it for in-state wineries. It is worth reading in full. I want to make only two observations here. First, the difficulty that the Webb-Kenyon Act of 1913 was designed to address -- the undermining of state alcohol controls through legal "imports" for personal use -- is precisely the problem that troubles Northern Europe today. Second, the major problem that Zywicki identifies with national alcohol Prohibition, and a problem noted by many repeal supporters at the time, is also a major problem with current drug prohibition: "federal meddling in state and local affairs," or "federal overreaching into local police power matters," to quote from part 8 of Wine Wars. (For one aspect of the current overreaching, see Pete at Drug WarRant's discussion of the defeated Hinchey amendment.)

Labels: alcohol, federalism, free trade, marketing, Prohibition, Supreme Court

 
Rubin v. Coors (1995)
- posted by Jim Leitzel @ 10:44 AM

The loyal Vice Squad reader writes, "Jim, just as we support vicarious and collective punishments in vice policy, so too, do we revel in vicarious and collective pleasure: please slake our thirst by revealing those vice policy-related documents that constituted your early morning reading." To such blandishments even one more steadfast than I could not remain unmoved. Forthwith: A couple weeks ago I mentioned a Supreme Court case, Rubin v. Coors Brewing, that invalidated a federal rule prohibiting beer producers from advertising or labeling the alcohol content of their beer (unless state law requires the provision of alcohol content information). Today I read the case. Though it is a little hard to discern, it seems that, strictly speaking, it was only the labeling ban that was really at stake.

Rubin v. Coors looks like a standard modern commercial speech case. The guidelines of Central Hudson are applied. Central Hudson allows regulation of non-misleading commercial speech for legal goods if (1) the government has a substantial interest served by the regulation, (2) the regulation directly advances that interest, and (3) the regulation is not more extensive than is necessary to serve that interest. In Rubin v. Coors, the Supreme Court found that the government's interest in preventing "strength wars" among brewers was indeed substantial. But it was on the next prong, that of directly serving the government interest, that the alcohol content labeling ban faltered. The Court's reasoning is that the overall federal alcohol regulatory structure is incoherent. Most states had not affirmatively prohibited the advertising of alcohol content, so by the terms of the federal rule, in much of the country, strength wars were permissible in advertising, though not in labeling. Given the advertising "loophole," the labeling ban would be unlikely to prevent a strength war. This conclusion is buttressed by the fact that a beer producer could still signal strength by naming its product a "malt liquor," and by the fact that wine and spirits producers were not similarly constrained.

While I said that the Court based its reasoning on overall policy "incoherence", the Court itself used the stronger (and, to be honest, I think inappropriate) term "irrationality".

The Court also noted that even if the labeling ban were able to advance the government's interest, it would still be unconstitutional, for failing to be narrowly tailored. There are options, including the direct limitation of alcohol content, that would serve the same ends as the labeling restrictions, without having the same effect on suppressing speech.

I am troubled by the Court's reasoning, which is quite similar to that used in a later case concerning casino advertising. Policy incoherence alone has been granted Constitutional significance via the Central Hudson standard: if various policies with respect to advertising are partly inconsistent, then the one that tends to be more restrictive can't do a good job of directly advancing the government interest, because the other policies allow methods of avoiding the restriction. Therefore, so the Court argues, the restrictive policy is an unconstitutional restraint upon commercial speech. The problem with this approach is that it forces all-or-nothing-style policies. Either all channels of commercial speech are restricted to serve the compelling interest, or none can be. And of course, one all-or-nothing-style policy that is generally allowed for vice control is to ban the vice entirely -- then, the activity is illegal, and its advertising receives no First Amendment protection at all. My own view is that the policy world is quite complex, and that a web of partly inconsistent policies is not necessarily "irrational." Along these lines, let me note one specific objection to the Court's opinion. The opinion states: "If combating strength wars were the goal, we would assume that Congress would regulate disclosure of alcohol content for the strongest beverages as well as for the weakest ones." Why make this assumption? At the time of Rubin v. Coors, a voluntary policy of no hard liquor TV advertising was in place. Many (all?) states had different licensing requirements for beer and wine versus hard liquor, so in many places where beer was sold, hard liquor wasn't even available. And so on. Incoherence does not imply irrationality.

Labels: alcohol, federalism, marketing, Supreme Court

 
A discussion of the Webb-Kenyon Act on Volokh Conspiracy
- posted by Michael @ 9:14 PM

There is a rather detailed discussion of the substance and history of the Webb-Kenyon Act on Volokh Conspiracy here and here. The Act was passed in 1913 to permit the dry states to prohibit importation of alcohol for personal use. Prior to the Act, the states could impose prohibition on the sale of alcohol produced either within or outside the state, but could not prohibit its import for personal consumption.

Labels: alcohol, federalism, Prohibition

 
Interstate Wine Shipments
- posted by Jim Leitzel @ 6:18 PM

Professor Todd Zywicki of George Mason Law School is back at the Volokh Conspiracy following a stint at the FTC. He has a series of interesting posts that concern direct interstate shipments of alcohol to individuals. The loyal Vice Squad reader will recall that there are two legal cases, to be argued before the Supreme Court next term, involving state laws (in Michigan and New York) that prohibit such interstate alcohol shipments but permit similar in-state shipments. So far, Prof. Zywicki has been laying out the issues and explaining why the plain meaning of the Prohibition-ending 21st Amendment doesn't give states carte blanche to do what they want with respect to alcohol imports.

His posts (so far) can be found (1) here; (2) here; and (3) here. Professor Bainbridge is another blogger who has written quite a bit on this topic. I first got up to speed on this issue thanks to the efforts of a pretty good student.

Labels: alcohol, federalism, free trade

 
Undoing the Federal Anti-Drunk Driving Mandate
- posted by Jim Leitzel @ 10:31 AM

In early July, Delaware became the final US state to adopt a law that will make a blood-alcohol content (BAC) of .08 the standard for per se drunk driving offenses. (Not all such state laws have entered into effect yet.) As with the "national" minimum drinking age of 21, the .08 standard was effectively imposed upon the states by the credible threat of federal "blackmail," the withholding of highway funds from states who didn't come along. Prior to the federal pressure, many states used .10 as the per se standard.

Today's Charlotte Observer has a fascinating article (registration required) of how South Carolina's official .08 standard is circumvented in practice -- to the point that police rarely will charge drivers under the per se statute, preferring to use an older anti-drunk driving law instead. One reason that the per se law has not been effective is that a conviction carries with it a six-month loss of driving privileges, while a refusal to take the BAC test only results in a 90-day suspension, and even that can be liberalized in practice. The per se law, as written, includes a fair number of defendant-friendly provisions, among which is the ban on using the per se law in conjunction with a drunk-driving checkpoint. Further, per se doesn't really mean per se in South Carolina, as the Observer article explains:

Unlike the laws in other states that make it illegal to drive with a blood alcohol concentration of 0.08 or higher, South Carolina adds a list of other factors that a jury can consider. These include:

* Videotape evidence of the person's conduct at the arrest scene and when the DataMaster test is administered.

* Results of sobriety tests given by the arresting officer.

* "Any other evidence of the state of a person's faculties to drive which would call into question the results of a breath or bodily fluid test."

Although those same arguments can be raised in a case brought under the old DUI law, the new law says drivers can demand that the judge read them to the jury. The judge must also instruct jurors that "the totality of the evidence produced at trial may be used by the jury to determine guilt or innocence."

In the last (approximately) three and a half years, South Carolina state troopers "wrote 728 tickets charging drivers with violating the per se law, but 32,205 tickets under the old DUI law, which leaves it up to jurors to decide whether someone was too drunk to drive."

Labels: alcohol, driving, federalism, policing

 
Colorado Lowers Blood Alcohol Limit for DUI
- posted by Jim Leitzel @ 3:44 PM

The federal government wants all the states in the US to have a blood-alcohol limit no higher than .08 for drunk driving. To this end, the feds dusted off the approach they used to implement an effectively national drinking age of 21: states that do not fall in line lose tons of highway funds. Colorado couldn't take the pressure; on Wednesday, the Colorado legislature passed a law that will lower the legal blood-alcohol limit from .10 to .08.

Labels: alcohol, driving, federalism

 
The States Don't Care About the Lives of Their Citizens....
- posted by Jim Leitzel @ 12:15 AM

...at least not like the US of House of Representatives does. It seems that many
individual US states are practically begging their citizens to drive under the influence of illegal drugs, by not having regular testing regimes and per se standards established. Fortunately, the laggard state capitols across our land will be forced to rectify this situation, at least if Nevada representative Jon Porter has his way. From this AP story at Yahoo News: "His bill would make states that don't enact drug-impaired driving laws forfeit 1 percent of their annual federal highway funds to the National Highway Traffic Safety Administration [internal links deleted]. The amount forfeited would double each year up to 50 percent." The fact that 42 states have not yet felt such a law to be requisite only indicates the pressing need for Rep. Porter's bill. My own additional concern, one unaddressed so far by all 50 of those incompetent state governments, regards the problem of people driving while distracted by classical music playing softly in the background. Hey, watch where you are going, Beethoven-breath. Perhaps a little federal pressure, Representative Porter? [Of course, no one should drive while intoxicated (or otherwise distracted) -- editor.]

Labels: alcohol, driving, federalism

 
More Federal Pressure on State Alcohol Policy
- posted by Jim Leitzel @ 7:58 PM

The minimum drinking age is 21 throughout the US thanks to financial pressure from the federal government in the mid-1980s -- the receipt of highway funds was tied to a state's adoption of 21 as the legal drinking age. The last paragraph of this story indicates that the next use of highway funds will be to ensure that states outlaw open containers of alcohol in cars. Apparently, 14 states currently do not make it a crime to have an open container in a moving vehicle.

Labels: alcohol, federalism