From the May 2009 Idaho Observer:

The Doctrine of Constructive Implication and the federal war on drugs

Pictured is federal drug war prisoner Duane Olson (80) with two of his grandsons during a recent visit. When Olson was convicted 19 years ago these two men were boys. Olson now has four great-grandchildren he has never met. Olson is just one of an estimated 125,000 lawlessly imprisoned federal drug war prisoners. Aside from the lives this illegally declared federal "war" has ruined, the U.S. government has treaties with 96 foreign nations to supply them with untold $billions worth of weapons and training under the color of fighting the losing war on drugs

The federal enforcement of laws prohibiting the manufacture, sale, possession or consumption of "controlled substances," which is historically rooted in the Food, Drug and Cosmetic Act of 1938, essentially began with Leary v. U. S.; 23 L Ed 2d 57 (1969) and Turner v. U.S.; 396 US 398 (1970). The "rules of engagement" in the federal war on drugs began taking shape when President Nixon signed "The Comprehensive Drug Abuse Prevention and Control Act (CDAPCA) of 1970" into law as Public Law 91-513. The Controlled Substance Act was passed as Title II of the CDAPCA and was amended by Congress in 1984 with passage of the Comprehensive Crime Control Act (CCA). Significant to this essay are amendments to the penalty provision at 21 USC §841(c).

The aforementioned cases and acts of Congress provide the framework within which the federal government is currently waging its much-lauded "war on drugs." An analysis of relevant Supreme Court decisions and legislative acts as they apply to constitutional limitations reveals that the federal war on drugs, particularly as it is has been waged since 1986, is legally illogical and wholly devoid of lawful authority. In the absence of lawful authority or legal logic, the federal war on drugs is being waged through the deliberate suspension of constitutional limitations and "artful" interpretation of statutory construction: "The Doctrine of Constructive Implication."

Turner, a 1967 federal drug case, was prosecuted under federal narcotic importation laws at Title 21 USC §174, (1909). At trial, the government presented evidence that packages in the possession of Turner contained heroin but presented no evidence of its origin. §174 provided, in relevant part, "possession of the narcotic drug….shall be deemed sufficient to authorize conviction unless the defendant explains the possession to the satisfaction of the jury."

Turner did not take the stand. The jury convicted and Turner appealed to the U.S. Supreme Court. The case was argued October 15, 1969.

The first of four counts charged Turner with violating 21 USC §174, alleging that he had possessed the forbidden drug, "…knowing that the heroin had been unlawfully imported into the United States" and the Supreme Court upheld the trial judge’s jury instructions that Turner’s unexplained possession of the heroin was sufficient evidence to infer that Turner, in fact, knew that the heroin had been illegally imported.

Justice Black, joined by Justice William O. Douglas, offered a dissenting opinion stating that, "…the statutory presumptions unconstitutionally deprived the defendant of the presumption of innocence, cast upon him the burden of proving that he was not guilty, and obligating him to rebut the presumptions, tended to compel him to testify in violation of his privilege against self incrimination," in violation of the Fifth Amendment to the Constitution.

On January 20, 1970, the U.S. Supreme Court reversed counts three and four in Turner but upheld counts one and two. Essentially, the Court concurred that it was correct for the government to presume that Turner knew the heroin was illegally imported without having to prove the charge.

Six months prior to Turner’s appearance, the U.S. Supreme Court had rendered a decision in Leary v. U.S.; 23 L Ed 2d 57 (May 19, 1969). The case stemmed from an incident where U.S. Customs agents in Texas found a small amount of marijuana in the vehicle driven by Dr. Timothy Leary as he was crossing back into the U.S. from Mexico. Leary was subsequently convicted under the "Marihuana Tax Act of 1937" by a federal judge for failing to pay the $100 per ounce federal importation tax on marijuana. Leary was then sentenced to 30 years in federal prison and ordered to pay a $30,000 fine.

Leary appealed by challenging the constitutionality of the Marihuana Tax Act on grounds that it compelled self-incrimination, in violation of the 5^th Amendment.

The Supreme Court unanimously overturned Leary’s conviction, ruling that the 1937 Marihuana Tax Act constituted double jeopardy.

Congress’ reaction to the Supreme Court’s decision in Leary was to repeal the Marihuana Tax Act upon passage of "The Controlled Substance Act (CSA) of 1970." Passage of the CSA by the 91^st Congress was the federal government’s opening salvo in its now infamous, costly and apparently unwinable war on drugs.

Since the 1970 passage of the Controlled Substances Act, all three branches of the federal government have been proceeding as if the 91^st Congress enacted a law that made it, "unlawful for any person" to possess, manufacture, distribute, or dispense, a "controlled substance." However, no such law was enacted then or since. Not even one syllable of the CSA of 1970, Public Law: 91-513, codified into the "Food, Drug, and Cosmetic Act of 1938," Title 21, confers federal jurisdiction over the (unalienable) right of "any person" to plant, cultivate, harvest, buy, sell, or ingest, by whatever method and for whatever purpose, marijuana or any other "recreational" drugs (state and local laws notwithstanding).

The abuse of drugs, narcotics and hallucinogens may be a federal concern but, as Justice Black observed in Turner, "Our Constitution was not written in the sands to be washed away by each wave of new judges blown in by each successive political wind that brings new political administrations into temporary power."

Such political winds began blowing when the new Nixon administration decided to gain "control" of "substances" through acts of Congress.

From the very beginning, it has been affirmed that this "…government is…. one of enumerated powers" (McCulloch v. Maryland; 4 Wheat [17US] 316, 405 [1819]). Since there is no enumerated power in the Constitution for Congress to directly control the people’s desire to produce, possess and consume drugs and; since the Supreme Court effectively reversed Congress’ power to tax drugs in Leary, the 91^st Congress made "findings and declarations" that a major portion (but not all) drug traffic flows through interstate commerce and foreign trade. Therefore, Congress reasoned, it has the authority to "regulate" (not control) the flow of drugs, narcotics and hallucinogens pursuant to Article 1, Section 8, Clause 3 of the Constitution. To wit: "The Congress shall have Power….To regulate Commerce with foreign Nations, and among the several States."

To draft a legislative act that would provide Congress with the authority to enforce its regulatory mandate under the Constitution, President Nixon’s Chief Domestic Advisor John Erlichman commissioned Egil Krogh and Don Santarelli, two young college grads with special political ties and linguistic expertise, to draft the "DC Crime Bill" (1970). The plan was to first get the federal crime bill passed in Washington, D.C. and then expand it to include the several states. At that time the nation’s capital was notoriously ridden with violent crime. But local crime is a local issue; the bill had to "invent" a cause for federal police jurisdiction. Studies were performed to tie violent crime to drug use and, since drugs are trafficked from state to state, federal jurisdiction to prosecute drug use was, in theory, established.

The DC Crime Bill would put more police on the streets and weaken constitutional protections against unlawful searches, seizures, surveillance and arrests. As the bill took shape it gained bipartisan support and was renamed the "Comprehensive Drug Abuse Prevention and Control Act," Title II of which was the "Controlled Substances Act." While arguing against the Controlled Substances Act on the Senate floor, the late Senator Sam Ervin (D-NC) stated, "This bill is as full of unconstitutional, unjust and unwise provisions as a mangy hound dog is full of fleas."

With the help of Senator Roman Hruska (R-NE) and with the blessing of the Justice Department’s Constitution Law Division and its Director, Assistant Attorney General, Bill Rhenquist (later to become Chief Justice of the United States Supreme Court), the Controlled Substances Act passed in the House October 27, 1970 and was codified as Public Law 91-513.

Alongside the explosion of recreational drug use and, hence, trafficking in the 60s and 70s, was the proliferation of prescription drugs flooding the marketplace for "licensed" distribution by medical professionals, some of whom were unscrupulous practitioners. So the 91st Congress authorized then Attorney General John Mitchell "to promulgate rules and regulations relating….to regulated persons and regulated transactions [21 USC §821]."

Persons who voluntarily applied [21 USC §822(1)(1)(2)] and were qualified "by state and local laws" [DEA FORM 224 A], paid the required fee of $500 dollars or more and signed a contract, would be federally regulated under federal jurisdiction in the closed commercial system of "...manufacturing, distributing, or dispensing "controlled substances….to the extent authorized by their registration" [21 USC § 822(b)].

The act also amended penalty provisions found in 21 USC §841.

The Comprehensive Crime Control Act (CCA) of 1984, after two years of legislative controversy (a detailed description of which has been documented but is beyond the scope of this essay), once again amended the penalty provisions at 21 USC §841 and was signed into law by President Reagan on October 12, 1984.

According to 21 USC §821 "persons" subject to federal enforcement of drug laws are those to be regulated "…to the extent authorized by their registration" [21 USC § 822(b)].

The law clearly authorizes federal enforcement authority over those registered to manufacture, distribute and dispense "controlled substances." But there is no law authorizing the federal government to prosecute, convict and imprison "unregistered" persons for alleged violations of 21 USC §821, per the provisions of 21 USC §841.

The "authorization" was created after the statute was passed by Congress and signed into law by President Reagan through the bifurcated interpretation of cryptic statute provisions of 21 USC §841, which are reproduced in relevant part below:

(a) Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally -

To support the "bifurcated interpretation of cryptic statute provisions" claim while simultaneously verifying Senator Ervin’s "hound dog" observation, the heading of the statute, Section 841—Unlawful acts—creates the illusion that the statute described defines a federal "crime," but it does not. Careful examination of the Legislative History of Public Law: 91-513, reveals that the term or phrase "Unlawful acts" was a margin-note for the printer’s use and was never a part of the original statute passed by both houses of Congress and signed into law by the president. So the header "Unlawful acts" should not be considered.

Additionally, before dissecting the statute to decipher its cryptic code, the negative/positive proof standard will establish a fact that cannot be disputed: The statute, section 841, is a "negative" statute that prohibits "any person knowingly or intentionally," from possessing, manufacturing, distributing, or dispensing a controlled substance; "(a) Except as authorized….by this subchapter;" referencing the statute §822(b).

Conversely, the "positive" aspect of the statute, section 841, would make it "lawful" for "any person" to "…the extent authorized by their registration" per section 822(b). All others not registered would be exempt (state laws notwithstanding).

The literal interpretation of the statute was tested in Moore v. U. S. (46 L Ed 2d 333 @ 341 [1975]) when Dr. Thomas Moore argued for his conviction of 10-30 years and a $150,000 fine to be overturned by the Supreme Court. As a registrant, Dr. Moore argued that he was authorized in a 6-month period to write some 11,169 prescriptions for over 800,000 methadone tablets. In a 639-count indictment, Justice Lewis F. Powell held "…that only the lawful acts of registrants are exempted…" from the Act.

Then Justice Powell, in the same opinion, "announced" the bifurcated interpretation of the statute: "[B]y its terms, §841 reaches ‘any person.’"

The Congress (legislative branch) passed 21 USC §841 in consideration of 21 USC, sections 821 and 822(b), in 1970. Since at least 1975, the Supreme Court (judicial branch) has ruled and the U.S. Department of Justice (executive branch) has enforced a truncated-version of the statute at §841 as if it were a "common law" crime "…for any person to knowingly possess, distribute, or dispense a controlled substance."

If the statute were evenly enforced in its truncated interpretation—without reference to 21 USC §821 and §822(b)—then there would be no point in stopping by the neighborhood drugstore to pick-up the miracle drugs the family doctor prescribed because both the family doctor and the pharmacist who dispensed them would be in federal prison along with the other "any persons" doing time for possessing, distributing or dispensing controlled substances. If it were enforced correctly—with reference to 21 USC §821 and §822(b)—then the only "any persons" subject to the jurisdiction of federal drug laws under 21 USC are those who volunteered to be regulated by registering with the attorney general per 21 USC §822(b).

One inescapably concludes, therefore, that tens of thousands of people from all over the world have been wrongfully prosecuted, convicted and incarcerated by the U.S. government as "any person" subject to the penalty provisions of 21 USC §841.

The preceding conclusion is easily tested. It is common knowledge, through daily reports published and broadcast by local and national media, that it takes an amendment to the Constitution to make it unlawful for "any person" to marry a person of the same sex, or, unlawful for "any person" to burn the American flag (which, ironically, stands for the right to burn it), or unlawful for "any person" to possess, manufacture, distribute, or dispense alcohol (Amend. XVI I I repealed by Amend. XXI). So, then, by what constitutional authority did Congress ever make it unlawful, absent an amendment to the Constitution, for "any person" to pull a weed and smoke it?

The answer, of course, is Congress didn’t; Congress couldn’t.

Another test could be found in applying this curious legal logic to state motor vehicle codes: How logical is it to argue that state laws with regard to the penalties prescribed in the licensed operation of motor vehicles extends to unregulated pedestrians while, as Justice Powell had opined in 1975, "…only the lawful acts of registrants [licensees] are exempted?"

The valid comparison of motor vehicle code enforcement to federal enforcement of drug laws renders the latter preposterous on its face.

The executive and judicial branches of the U.S. government have enforced and adjudicated the statutes in such manner as to "create" prima facie "case law" built on presumptions and assumptions that have allowed America’s "War on Drugs" to be waged under color of law via "The Doctrine of Constructive Implication."

There is no congressionally enacted federal criminal statute or common law, standing alone or bundled together, that would prohibit, forbid or make it unlawful for any (unregistered) person to possess, manufacture, distribute, or dispense a controlled substance (state and local laws notwithstanding).