On Constitutional Grounds

Tenth Amendment Center: Now in Effect: West Virginia Hemp Seed Law Can Further Expand Commercial Market Despite Federal Prohibition

CHARLESTON, W. Va. (June 5, 2018) – Today, a new law establishing a hemp seed certification program in the state went into effect. Enactment of this law paves the way for faster development of the state’s hemp market and will help further nullify federal prohibition in effect.

A coalition of three Democratic senators introduced Senate Bill 475 (SB475) on Feb. 2. The legislation authorizes the Commissioner of Agriculture to create and administer an industrial hemp seed certification program in West Virginia.

The Senate passed SB475 by a 33-1 vote. The House approved the measure 97-0. With Gov. Justice’s signature, the law went into effect at midnight on June 5.

Seed certification is vital to growing a vibrant hemp industry. A shortage of usable certified seed throws up one of the biggest barriers to hemp research and farming. Few domestic seed sources exist, and the federal government strictly regulates importation and transportation of hemp seeds. By creating a program to encourage the development of certified seed in the state, it will open the door to vastly expand the hemp market in West Virginia.

Colorado became the first state in the country to create a certified seed program back in 2016. According to a recent report by the Norwood Post, “The success of the industry perhaps stems from the state’s ‘look the other way’ stance on hemp seed acquisition. That flies in the face of federal direction to get approval from the U.S. Drug Enforcement Administration.”

The new West Virginia law will require the state’s seed program to remain federally compliant. But even with federal shackles, establishing a seed certification program takes an important step forward. It will help alleviate seed shortages and allow researchers to create hybrids adapted to the state’s soil and climate. And West Virginia has a history of eventually ditching federal compliance.

The state legalized hemp in 2002. Under that law, the state ran a federally compliant licensing program for research purposes until last year. Recognizing its limited research program was hindering the development of the industry, West Virginia dumped its federally compliant hemp program during the 2017 legislative session and now issues federally non-compliant commercial licenses to growers. West Virginia Public Broadcasting confirmed limits imposed by the old program due to its conformity with federal law were holding back the development of a viable hemp industry and everyday farmers cannot benefit.

“But because of the strict requirements under the 2014 bill, growers are not able to sell their plants and cannot transport them across state lines to be turned into those usable products. That’s limited the ability to create a real hemp industry in the state.”

According to a report in the Charleston Gazette-Mail, a hemp industry is already starting to take root in the state. Passage of SB475 would allow the market to expand even faster.

FEDERAL FARM BILL

In 2014, Congress cracked the door open for hemp in the U.S. with an amendment to the 2014 Farm Bill. The law allows hemp cultivation for research purposes, but prohibits “commercial” production.

The “hemp amendment” in the 2014 farm bill —

…allows State Agriculture Departments, colleges and universities to grow hemp, defined as the non-drug oil-seed and fiber varieties of Cannabis, for academic or agricultural research purposes, but it applies only to states where industrial hemp farming is already legal under state law.

In 2016, the U.S. Department of Agriculture and Drug Enforcement Agency released a “statement of principles” to guide interpretation of the hemp section in the Farm Bill. It states, “The growth and cultivation of industrial hemp may only take place in accordance with an agricultural pilot program to study the growth, cultivation, or marketing of industrial hemp established by a State department of agriculture or State agency responsible for agriculture in a State where the production of industrial hemp is otherwise legal under State law.”

In short, the current federal law authorizes farming of hemp – by research institutions, or within state pilot programs – for research only. Farming for commercial purposes by individuals and businesses remains prohibited.

The definition of “commercial” and the extent to which sales and marketing are allowed under the rubric of “research” remains murky. This has created significant confusion.

The statement of principles also asserted that industrial hemp programs are limited to fiber and seed. It didn’t mention the CBD oil or other edible hemp products. The DEA has apparently interpreted that to mean they remain illegal. The agency has flat-out said CBD cannot be sold under any circumstances. An Indiana TV station interviewed DEA spokesman Rusty Payne who said, “It’s not legal. It’s just not.”

Under California law, farmers can ignore federal prohibition and grow hemp commercially anyway. While prospective hemp growers still have to take federal law into consideration, by eliminating the state requirement for federal permission the law clears away a major obstacle to widespread commercial hemp farming within the state’s borders.

Several other states with federally-compliant hemp programs, such as Kentucky, North Dakota, Minnesota and New York, have grown significant acreage under federally-approved research programs. This takes the first step, but with federal shackles in place, these states are not legally allowed to develop any kind of commercial market. Ironically, many of these “federally compliant” programs are not actually federally compliant.

OTHER STATES

Other states, including Colorado, Oregon, Maine, California and Vermont have simply ignored federal prohibition and legalized industrial hemp production within their state borders.

Colorado was the first state with widespread commercial hemp production. Farmers began growing hemp in southeast Colorado back in 2013 and the industry is beginning to mature. The amount of acreage used to grow industrial hemp in the state doubled in 2016 to nearly 5,000 acres, and nearly doubled again in 2017.

The Oregon legislature initially legalized industrial hemp production in 2009. While it was technically legal to grow hemp in the state, farmers didn’t take advantage of the opportunity for nearly five years. When the Oregon Department of Agriculture finally put a licensing and regulatory program in place early in 2014, farmers began growing hemp. The initial regulatory structure placed significant limits on hemp farming and effectively locked small growers out of the market. In 2016, Gov. Kate Brown signed House Bill 4060 into law. It relaxed state laws regulating hemp already on the books and made the crop more like other agricultural products. Within months, the Oregon Department of Agriculture had already promulgated new rules under the reformed law. According to Oregon’s Cannabis Connection, the rules set the stage to creates a “massive” medical hemp market. The state produced 3,469 acres of hemp in 2017 .

Both Colorado and Oregon demonstrate how loosening rules at the state level encourage the market and allow hemp a legitimate commercial hemp industry to develop.

HUGE MARKET FOR HEMP

According to a 2005 Congressional Research Service report, the U.S. is the only developed nation that hasn’t developed an industrial hemp crop for economic purposes.

Experts suggest that the U.S. market for hemp is around $600 million per year. They count as many as 25,000 uses for industrial hemp, including food, cosmetics, plastics and bio-fuel. The U.S. is currently the world’s #1 importer of hemp fiber for various products, with China and Canada acting as the top two exporters in the world.

During World War II, the United States military relied heavily on hemp products, which resulted in the famous campaign and government-produced film, “Hemp for Victory!”

Mike Maharrey
June 05, 2018 at 04:42AM

Tenth Amendment Center: Interview: The Problem With the Incorporation Doctrine

From Tenth Amendment Center

...from Tenth Amendment Center

If you want to know more about the historically fallacious and tangibly destructive Incorporation Doctrine, look no further.

From Society and the State:

The story of the U.S. Constitution is one of a gradually expanding federal government that has slowly but surely outgrown the limits on its power. Nowhere is this more clear than in how the Bill of Rights, which originally limited federal power, has been imposed upon the states to make them subservient to Washington D.C. Kevin Gutzman joins Connor Boyack and Bryan Hyde to discuss how the Incorporation Doctrine has given the feds even greater power over the states and a moral standing that they never earned.

LISTEN

Dave Benner
June 04, 2018 at 08:54AM

Tenth Amendment Center: California Senate Passes Bill to Help Expand Hemp Market, Further Nullify Federal Prohibition in Practice

From Tenth Amendment Center

...from Tenth Amendment Center

SACRAMENTO, Calif. (June 4, 2018) – Last Wednesday, the California Senate unanimously passed a bill that would loosen some regulations on hemp seed and cultivation. Passage of this bill would pave the way for faster development of the state’s hemp market, and further nullify federal prohibition in practice and effect.

Sen. Scott Wilk (R-Santa Clarita), along with a bipartisan coalition of three cosponsors, introduced Senate Bill 1409 (SB1409) on Feb. 16. The legislation would increase the availability of industrial hemp seed in California by repealing a requirement that seed cultivars must be certified on or before January 1, 2013, in order to be included on the state’s approved seed list. In effect, this will expand the types of hemp seed available to growers.

Additionally, the proposed law would repeal a requirement that industrial hemp must be grown as a fiber or oilseed crop, or both, and would also delete the requirement that an application for registration must include information about whether a seed cultivar is being grown for its grain or fiber, or as a dual purpose crop. In other words, farmers would be able to grow hemp for any purpose.

The legislation would also delete current prohibitions on the ornamental cultivation of industrial hemp plants, pruning and tending of individual industrial hemp plants, and culling of industrial hemp.

Together, these provisions would simplify the law and make it easier for growers to get into hemp and ultimately expand the state’s market.

The Senate passed SB1409 by a 37-0 vote.

In particular, seed certification is vital to growing a vibrant hemp industry. A shortage of usable certified seed throws up one of the biggest barriers to hemp research and farming. Few domestic seed sources exist, and the federal government strictly regulates importation and transportation of hemp seeds. By making more types of seed available in the state, SB1409 would open the door to vastly expand the hemp market in California.

FEDERAL FARM BILL

In 2014, Congress cracked the door open for hemp in the U.S. with an amendment to the 2014 Farm Bill. The law allows hemp cultivation for research purposes, but prohibits “commercial” production.

The “hemp amendment” in the 2014 farm bill —

…allows State Agriculture Departments, colleges and universities to grow hemp, defined as the non-drug oil-seed and fiber varieties of Cannabis, for academic or agricultural research purposes, but it applies only to states where industrial hemp farming is already legal under state law.

The definition of “commercial” and the extent to which sales and marketing are allowed under the rubric of “research” remains murky. This has created significant confusion.

OTHER STATES

Other states, including Colorado, Oregon, Maine and Vermont have simply ignored federal prohibition and legalized industrial hemp production within their state borders.

Both Colorado and Oregon demonstrate how loosening rules at the state level encourage the market and allow hemp a legitimate commercial hemp industry to develop.

HUGE MARKET FOR HEMP

According to a 2005 Congressional Research Service report, the U.S. is the only developed nation that hasn’t developed an industrial hemp crop for economic purposes.

During World War II, the United States military relied heavily on hemp products, which resulted in the famous campaign and government-produced film, “Hemp for Victory!”

WHAT’S NEXT

SB1409 will now move to the Assembly for further consideration. At the time of this report, the bill had not been referred to an Assembly committee.

Mike Maharrey
June 04, 2018 at 08:38AM

TSA Secrets Violating Rights

TSA Secrets Violating Rights By KrisAnne Hall, JD According to a memo received by the New York Times (https://nyti.ms/2J6P038), in February of this year the TSA has developed a brand new “secret watch list.” This list is for special people who don’t necessarily qualify for the big “No Fly” list, but for people individual agents of […]

The post TSA Secrets Violating Rights appeared first on KrisAnne Hall.

Read the full article at krisannehall.com June 02, 2018 at 12:58PM

Tenth Amendment Center: Why “Precedent” Is a Bad Measure of a Law’s Worth

From Tenth Amendment Center

...from Tenth Amendment Center

by Gary Galles, Mises Institute

Whenever the Supreme Court’s end-of-the-term “announcement season” comes around, I am reminded of the importance of handling precedent correctly under a Constitution that is supposed to remain “the supreme law of the land.” Such a result requires that courts actively maintain constitutional rights against government overreaching, meaning that divergent precedents must not be allowed to preempt the Constitution. It also requires that precedents consistent with the Constitution are not overturned without good cause, which is why stare decisis (“to stand by things decided”) is important. The Supreme Court has said such deference to precedent “promotes the evenhanded, predictable, and consistent development of legal principles,” which expands voluntary social cooperation.

That two-part standard for precedents, however, has been violated by a two-step “living Constitution” approach, which has undermined Americans’ Constitutional protections. Divergent precedents have been substituted for the Constitution by artful judicial reinterpretation (far easier than passing a Constitutional Amendment, which is typically unachievable), such as with the sprawling expansion of the meaning of the Commerce Clause, now jokingly called the “everything clause” in law school), effectively creating a “new and improved” supreme law of the land. Once that has happened, defenders then insist that stare decisis be honored, and the new interpretation be upheld against subsequent alterations. If their insistence is accepted, it allows mistaken precedents to persist and further precedents to build on them, expanding deviations from the Constitution.

Of course, there is an internal contradiction in that two-step approach. If stare decisis means the Supreme Court must defer to earlier Constitutional precedents, there is no respectable defense for those reinterpretations “living Constitution” advocates are now so adamant in defending, because they deviated from still-earlier Constitutional precedents.

The Supreme Court term now approaching its close has illustrated both types of threats to our Constitutional republic. In Janus v. AFSCME (pending), we saw arguments to uphold a precedent that should not have been accepted, despite inconsistency with Constitutional precedents. In Epic Systems v. Lewis (just decided), we saw attempts to overturn a well-established Constitutional interpretation by retroactively “discovering” a conflict created 77 years ago.

In Janus v. AFSCME, the key issue was the Abood precedent, giving government employee unions authority to charge workers for the costs of negotiating on their behalf, but not for unwanted union political spending, which would violate their First Amendment rights. Mark Janus argued that all union expenditures are inherently political (e.g., if government union members get higher wages or better benefits, taxpayer costs will rise), which would result in banning all coerced non-member fees by government employee unions.

Unions and left-leaning groups ignored the Constitution and went all in defending Abood as a controlling precedent, requiring continuation under stare decisis. Unfortunately, Abood does not stand up as a Constitutional precedent.

The reason is the Supreme Court’s application of three-tiers of scrutiny for Constitutional rights. For some rights, notably economic rights, as in Commerce Clause cases, it applies a “rational basis” or minimal scrutiny test, requiring only that some legitimate government interest is involved, and the law has some rational relationship to that interest, which in practice is almost a rubber stamp. For First Amendment and other rights they deem more important, “strict scrutiny” is applied, requiring a compelling government interest and a law narrowly tailored to that interest, using the least restrictive means, which is a standard far more difficult to meet.

The central precedents that Abood relied on were Commerce Clause cases, addressing government’s right to regulate labor disputes, subject to minimal scrutiny. They did not address whether mandating union agency fees violated First Amendment rights, which the Supreme Court has increasingly held, that are to be subjected to strict scrutiny. Therefore, they provide no controlling precedent for Janus. The minimal scrutiny justification of advancing “labor peace” in Abood cannot meet the strict scrutiny standard for compelled speech in Janus, and does not justify stare decisis deference.

In Epic Systems v. Lewis, just decided 5-4, left-leaning groups’ arguments tried to get around stare decisis principles. They argued that the 1925 Federal Arbitration Act (FAA) explicitly calls for government enforcement of individual arbitration agreements for worker disputes with employers should be over-ridden by the 1935 National Labor Relations Act (NLRA), because one of its clauses granted employees “the right…to engage in other concerted activities for…mutual aid or protection.”

Under stare decisis, why would part of a 1925 law be overturned by a 1935 law? If a 1935 law was written while the decade-earlier law was in force, the intent to overturn parts of the earlier law would have been made clear by Congress and would have been revealed by the ensuing application of the laws. But neither condition was met.

Mandatory individual arbitration is a now-familiar business practice. Even the National Labor Relations Board (NLRB) did not assert any such conflict between the NLRA and the FAA for decades. Then, in 2012, the Obama NLRB decided that, despite no explicit statement of such an intent, the vague clause in Section 7 in the NLRA should be read as creating a worker right to use group legal action actions for worker-employer disputes, which should invalidate the FAA’s enforcement of individual mandatory arbitration agreements (a position even the current Department of Justice filed against).

In fact, as Walter Olson noted, seven major Court rulings in the last 35 years have confirmed that the FAA policy of enforcing arbitration agreements is not in conflict with other federal laws. And in Gilmer v. Interstate/Johnson Lane Corp. (1991), the Court held that even the federal statute directly governing wage and hour suits–the Fair Labor Standards Act (FLSA)–does not ban this kind of arbitration agreement. And as Justice Gorsuch wrote, “Our rules aiming for harmony over conflict in statutory interpretation grow from an appreciation that it’s the job of Congress by legislation, not this Court by supposition, both to write the laws and to repeal them.”

There were other issues of interpretation, as well. The FAA explicitly endorses enforcing individual arbitration agreements, while one must work hard to twist the vague Section 7 phrase of the NLRA to interpret it as creating a contradictory right that remained undiscovered for over three-quarters of a century. Further, the Section 7 clause of the NLRA deals with the power to unionize, while the FAA deals with the very different issue of workplace grievances in non-union environments. Also, the principle of ejusdem generis (“of the same kind”) would require that the “other concerted activities” referred to in the NLRA should be understood in terms of the specific enumerated joint activities — all related to collective bargaining–preceding it. Consequently, the NLRA clause should not trump the long-held FAA support for individual arbitration in an entirely different context.

To many, getting into details of judicial interpretation is an exercise in making their eyes glaze over. As someone not trained as a lawyer, I understand that. But it is important to know that our liberty is often dependent on just such issues, making them something that we cannot effectively defend our liberties without. And that is especially true, given the two-step way our liberties have been eroded.

Gary M. Galles is a professor of economics at Pepperdine University. He is the author of The Apostle of Peace: The Radical Mind of Leonard Read.

This post was originally published at Mises.org and is reposted here under a CreativeCommons, Non-Commericial 3.0 license.

Tenth Amendment Center
June 02, 2018 at 06:56AM

The Enlightenment of Experience

Alexander Hamilton said that experience is the oracle of truth. Patrick Henry said we have one lamp by which our feet are guided, the lamp of experience. Today, it seems, some chickens are coming home to roost and KrisAnne gets the opportunity to say, "experience told you so."

The post The Enlightenment of Experience appeared first on KrisAnne Hall.

Read the full article at krisannehall.com June 02, 2018 at 07:18AM

Tenth Amendment Center: Now in Effect: Alabama Law will Help Encourage the Use of Gold and Silver as Money

From Tenth Amendment Center

...from Tenth Amendment Center

MONTGOMERY, Ala. (June 1, 2018) – Today, an Alabama law exempting the sale of gold and silver bullion from state sales and use tax, encouraging its use and taking the first step toward breaking the Federal Reserve’s monopoly on money went into effect.

Sen. Tim Melson (R-Florence) introduced Senate Bill 156 (SB156) on Jan. 11. The new law exempts the gross proceeds from the sale of gold, silver, platinum, and palladium bullion in the form of bars, ingots or coins from sales and use tax in the state for five years after the date of enactment.

The House passed SB156 by a 100-0 vote. The Senate approved the measure by a 26-0 vote.

Imagine if you asked a grocery clerk to break a $5 bill and he charged you a 35 cent tax. Silly, right? After all, you were only exchanging one form of money for another. But that’s essentially what Alabama’s sales tax on gold and silver bullion did. By removing the sales tax on the exchange of gold and silver, Alabama will treat specie as money instead of a commodity. This represents a small step toward reestablishing gold and silver as legal tender and breaking down the Fed’s monopoly on money.

We ought not to tax money – and that’s a good idea. It makes no sense to tax money,” former U.S. Rep. Ron Paul said during testimony in support an Arizona bill that repealed capital gains taxes on gold and silver in that state. “Paper is not money, it’s fraud,” he continued.

The law’s impact will go beyond mere tax policy. During an event after his Senate committee testimony, Paul pointed out that it’s really about the size and scope of government.

“If you’re for less government, you want sound money. The people who want big government, they don’t want sound money. They want to deceive you and commit fraud. They want to print the money. They want a monopoly. They want to get you conditioned, as our schools have conditioned us, to the point where deficits don’t matter.”

Practically speaking, eliminating taxes on the sale of gold and silver will crack open the door for people to begin using specie in regular business transactions.This will mark an important small step toward currency competition. If sound money gains a foothold in the marketplace against Federal Reserve notes, the people will be able to choose the time-tested stability of gold and silver over the central bank’s rapidly-depreciating paper currency.

There are already signs of the tax repeals impact. According to Coin Week, the state can now host major coin shows.

“We have discussed the possibility of hosting a show in Alabama, however, we have been reluctant because of the sales-tax obstacle,” President of Whitman Publishing president Mary Burton said. “The new law allows us to once again give serious consideration to hosting a successful show in Alabama.”

BACKGROUND INFORMATION

The United States Constitution states in Article I, Section 10, “No State shall…make any Thing but gold and silver Coin a Tender in Payment of Debts.” States have simply ignored this constitutional provision for years. It’s impossible for a state to return to a constitutional sound money system when it taxes gold and silver as a commodity.

This Alabama tax repeal takes a small step toward that constitutional requirement, ignored for decades in every state. Such a tactic would set the stage to undermine the monopoly of the Federal Reserve by introducing competition into the monetary system.

Constitutional tender expert Professor William Greene said when people in multiple states actually start using gold and silver instead of Federal Reserve Notes, it would effectively nullify the Federal Reserve and end the federal government’s monopoly on money.

“Over time, as residents of the state use both Federal Reserve notes and silver and gold coins, the fact that the coins hold their value more than Federal Reserve notes do will lead to a “reverse Gresham’s Law” effect, where good money (gold and silver coins) will drive out bad money (Federal Reserve notes). As this happens, a cascade of events can begin to occur, including the flow of real wealth toward the state’s treasury, an influx of banking business from outside of the state – as people in other states carry out their desire to bank with sound money – and an eventual outcry against the use of Federal Reserve notes for any transactions.”

Once things get to that point, Federal Reserve notes would become largely unwanted and irrelevant for ordinary people. Nullifying the Fed on a state by state level is what will get us there.

Mike Maharrey
June 01, 2018 at 04:19AM