USA - Illicit drugs and compensation

[bcubed]

This was already asked as an "add-on" to another thread elsewhere, but I figured I'd get better answers in the L+O section.

Any other time property is seized (i.e. "eminent domain") the gov't is required to compensate the owners.

However, what happens in the event of a drug being made illegal? If SWIM was selling mail-order Ginko biloba, for instance, and had 300,000 doses' worth when it was made illegal, now his capital investment has no (legal) value. If SWIM wants to be a good boy, is he simply out his $$$, or does he get compensated?

Now, if SWIM ANTICIPATED the ban, bought wholesale, and intended to get compensated retail, what happens?

Reputation Comments on this post:

Hmm...

[Felonious Skunk]

Don't expect to be compensated when they become Schedule I.

[zera]

This is interesting. The 5th amendment to the US Constitution gurantees that

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

One would certainly think that the goernment would be denying you the right to your property without just compensation by scheduling a substance that was in your possession before scheduling. I believe historically that during the Marshall era (early 19th century) that the Supreme Court ruled that a change in law that would substantially impact a current business profitability had to be compensated.

However after 1937 the Supreme Court radically narrowed the scope of substantive due process when it came to property rights, most notably by upholding the Constitutionality of minimum wage statues, which restricted previously enshrined freedom of contract protections. To answer your original question I dont believe that you would be entitled to compensation.

Controversially the Endangered Species Act allows the EPA to declare any amount of land an endangered species habitat. This will drastically reduce the economic value of the land, as the owner will not be able to build on it or disturb it an any way whatsoever. Most disturbingly the owner of the land is not entitled to any compensation whatsoever for what is essentially an arbitrary proclamation by the federal government. Since this has been upheld by the Supreme Court, I doubt if a similar arbitrary proclamation destroying something of economic value, in this case the scheduled substance, would justify any compensation.

Reputation Comments on this post:

good post...too damn quick

[bcubed]

^ was about to post that, but beaten to the punch.

I'm not denying the endangered species act is opressive in its action (and, like not compensating SWIM's ginko stockplie, drives exactly the opposite behavior desired) it seems different.

If the gov't drastically reduces the utility and value of my land through the ESA, (but doesn't seize it outright) it seems akin to the gov't planning to build an interstate near my undeveloped land, but chooses to build it through your land instead. My land's value drops (and yours raises), but neither of us are compensated (or charged) for the respective changes.

However, when they make SWIM's ginko illegal, they have taken (he can't hold onto it) his property (he owned the ginko) for public use (the WOD is seen as a "public" interest) without compensation!

How is that not, a prima facie violation of the 5th amendment? Paging Perry Mason...

(Incidentally, what happened to bars/distillers with the enactment of prohibition?)

More recent example: what happened when the FDA (not the DEA) outlawed sales of Ephedra? (Although, I see, they didn't actually ban the POSSESSION of it, so it doesn't fit the 5th Amendment mold as exactly as scheduling would.)

[El Calico Loco]

This is a fascinating argument, one I had not considered. You're absolutely right. The takings clause does not specify what type of property one must be compensated for, only that one must be compensated when the government takes one's property.

There have been a number of court cases that have tried to nail down exactly what constitutes as a "taking." Many regulations seem to qualify. The EPA was mentioned - if the EPA says that one cannot build or farm one's land, they've taken it in everything but name.

http://www.law.umkc.edu/faculty/proj...aw/takings.htm

I don't think this argument will help the cause much, however. Property rights have been far eroded in America. We work one third to one half of the year just to pay our taxes, and states use eminent domain to build shopping malls.

Welcome to the USSA, comrade.


ECL

[bcubed]

This might be worth a try, especially if one can accumulate enough of a drug to make it worth something retail, or files a class action.

Two good things could come about:
1. The rule of law and the constitution could prevail, letting the plaintiff to effectively rape the DEA. Others would see this, and would be able to "speculate" in soon-to-be banned drugs, knowing that they have a buyer in the fed gov't (hell...it'd be like crop guarentees for the drug set!) Plus, the only way to end this would be via repeal of the 5th amendment...not gonna happen!
2. The courts could decide that an ideology trumps written law, possibly citing the "ongoing WOD." Well, if it is a war (and their side started using that term, so let's assume it is), then having "war" as a justification for the suspension of written law constitutes "martial law." If the US is under martial law, the best we can do is force a court to state that.

[bcubed]

Well, I ran this by some law profs at my school, and they said there is a "harmful and noxious" exception, that the gov't doesn't have to compensate for such things.


They gave me some case history to look at; I have yet to do so.

[FuBai]

There will be a precedent case set by the supreme court saying that the government doesn't have to compensate for such and such a reason. There is logic in saying that the government shouldn't have to compensate people IF you follow the line of thought that the substance being banned is, as the person above me said, "harmful and noxious". Let's say a new type of nerve gas, uncontrolled by law, was concoted and person x bought enough canisters to wipe out Utah (Ah, if only!), should the government have to pay for the priviledge of taking those items off someone. This may seem extreme but the Supreme Court not only has to worry about doing what's right by the constitution, but it also needs to carefuly consider the precedent it's setting, because you can bet any part of your anatomy that you like that some one will use the precedent to do something like that.

Reputation Comments on this post:

precedent is where it's at

[bcubed]

I'd agree that if someone had something truly a threat to public safety, the gov't shouldn't have to compensate, but they should have to PROVE that it's harmful on its face: just saying something's harmful because the gov't holds it to be is arbitrary.

To use a specific example: S. divinorum was the case I had in mind, as it's probably the closest of all the legal highs to being scheduled. To the best of my knowledge, it's never proximately caused any deaths, and is "kinda sorta tangentially responsible" for just one (the DE suicide). The fed gov't, however, is following an ideology (pretty unique in the total of recorded history) that anything that makes one's head feel different is evil and must be suppressed (the only exception, alcohol, is legal only because the gov't lacked the power to enforce its prohibition). In furtherance of this aim, ANY scheduled drug is necessarially "harmful and noxious."

I fail to see any substantive difference between "The gov't declines to compensate you for taking your property because we deem it harmful and noxious" and "The gov't declines to compensate you for taking your property because we deem it counterrevolutionary."