The U.S. Structure offers Congress sure enumerated powers (Article I, Section 8), with powers “not delegated to the [federal government] by the Structure, nor prohibited by it to the states, are reserved to the states respectively, or to the individuals” (Tenth Amendment). Whereas one of many enumerated powers is the regulation of interstate commerce, the federal drug paraphernalia statute, a part of the Managed Substances Act (CSA), renders the sale of drug paraphernalia unlawful, even the place a sale takes place solely throughout the borders of a state. How can this be squared with the Structure’s clear language on what the Congress can and can’t do?
Effectively, arguably, it can’t be squared, except fairly a little bit of creativity is deployed. Happily (or sadly, relying on the place you stand on sure points) Congress and the federal courts don’t lack creativity, as they’ve demonstrated of their strategy to drug paraphernalia within the CSA and court docket selections decoding the identical.
In line with 21 U.S.C. § 863(a), it is illegal:
(1) to promote or supply on the market drug paraphernalia;
(2) to make use of the mails or some other facility of interstate commerce to move drug paraphernalia; or
(3) to import or export drug paraphernalia.
It’s simple to see the connection between Congress’s enumerated powers, and the second and third of Part 863(a)’s prohibitions. The Structure offers Congress the ability “to control Commerce with international Nations, and among the many a number of States.” As well as, Congress has the ability “to determine Put up Places of work and put up Roads.” Regulation of what merchandise can “use the mails” is a logical adjunct of that energy.
Nonetheless, in relation to Part 863(a)(1), one might spend hours wanting on the powers enumerated within the Structure with out discovering any language that will assist the proposition that Congress can prohibit the sale of a bong, throughout the borders of Washington State, between two residents of the identical state. If the transaction includes the usage of {dollars}, then maybe Congress’s energy “to coin Cash,” additionally granted by the Structure, may present a jurisdictional hook. However what if the bong’s purchaser pays in variety? Or what if there’s solely a supply of sale, not adopted by an precise sale involving cash?
In Fry v. United States (421 U.S. 542 (1975)), the Supreme Courtroom held that “even exercise that’s purely intrastate in character could also be regulated by Congress, the place the exercise impacts commerce among the many States or with international nations.” That is very broad language that may cowl nearly any exercise. Furthermore, Congress doesn’t “want make particularized findings” on whether or not an exercise impacts interstate commerce. Perez v. United States (402 U.S. 146 (1971)). That is a chic method of claiming that Congress doesn’t want to take a look at details when it decides that, sure, one thing has an influence on interstate commerce.
The truth that the Framers of the Structure gave Congress the ability to control interstate commerce makes it clear that they understood the problems raised by the motion of products throughout state borders. It’s cheap to imagine that additionally they knew that purely intrastate actions might have an effect on interstate commerce, but the ability given to Congress remained linguistically slim. If the Framers wished to provide Congress the ability to control actions that “have an effect on” interstate commerce, they might have made that clear within the Structure. But they selected to not. Later strikes to broaden federal energy seem cynical on this context.
We will, and will, query whether or not the federal drug paraphernalia statute is according to the Framers’ imaginative and prescient. Nonetheless, as a sensible matter, federal courts haven’t had any points discovering that the statute is constitutional, even to the extent it regulates purely intrastate actions. Till such time as Congress or the courts resolve to start out giving impact to the “a number of States” a part of Article I, Part 8 of the Structure, residents are left with no selection than to abide by the present, expansive definition of “interstate commerce”.