Comment by chimeracoder | Hacker News Reader

Comment by chimeracoder | Hacker News Reader

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While I disagree that legalization will be "just a blip", it's interesting to note that the original law that prohibited marijuana in the US was actually a cleverly worded tax law: https://en.wikipedia.org/wiki/Marihuana_Tax_Act_of_1937

Basically, marijuana was legal, but you were required to purchase a tax stamp (that was never issued) in order to prove that you had paid taxes on it.

There were many reasons for this, but one factor was that, at the time, the prevailing thought was that Congress did not have the authority to ban the possession of a substance outright within the states. (Even the 18th Amendment was actually carefully worded in a way such that it didn't technically prohibit all possession and sale of alcohol, the way people oftentimes think).

This (tax law) is also the same technique that the Obama administration has used to crack down on legal medical marijuana dispensaries, while still paying lip service to his promise not to[1].

(In the latter case, the tax laws are written in such a way that medical marijuana dispensaries are unable to deduct for normal business expenses that other businesses would be).

Al Capone was also convicted of tax evasion[2], as was Reuben Sturman[3]. Tax law can be used as a "politically correct" excuse to criminalize behavior that otherwise would be politically impossible to criminalize.

[1] http://www.huffingtonpost.com/2011/10/04/harborside-health-c...

[2] https://en.wikipedia.org/wiki/Al_Capone

[3] https://en.wikipedia.org/wiki/Reuben_Sturman

That is because Congress has enumerated powers, and the Commerce Clause was then accepted in the intended meaning of only controlling commerce with other countries, between the states, and with Indian tribes. Sales inside of a state are obviously out of the purview of that clause.

Today, of course, the Commerce Clause is interpreted insanely broadly to cover everything from civil rights to environmental protection. Worthy causes, to be sure, but not within the intended purview of, [The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;

My personal theory of the Commerce Power is that it can be seen as giving the federal government the power to regulate issues that could be described in economic terms as collective action problems. Eliminating infernal tariffs and trade barriers were of course the original animating rationale, but at root that's just one example of a collective action problem. I.e. it makes the country better off not to have internal trade barriers, but states have an incentive to erect trade barriers without some higher authority preventing them from doing so.

While the framers probably didn't fully understand the ramifications, I think the broad language of the Commerce Clause lends itself to a fair reading that Congress can act on matters in which individual states acting alone would face collective action or race to the bottom problems. So something like environmental regulations fits quite naturally into this framework. Pollution doesn't respect state bounderies and states face a race to the bottom problem in attempting to regulate it. Therefore Congress is empowered to act.

Interestingly enough also the way (pre-ban) machine guns and grenades are managed by the feds. Legal, but expensive and time consuimg tax stamp required. Obamacare fines were also considered to be a tax. Taxation is limitless.

On Obamacare. My understanding is that the Obama administration originally tried to justify the law under the commerce clause, and when that failed used taxation as a (relativly) long shot strategy.

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