Tag: alcohol

When “Zero Tolerance” Means Zero Logic

Schools work very hard to curb drunk driving, so when a sober student offers to drive an inebriated friend home from a party rather than let her attempt to drive home herself, no doubt any school would hold her up as worthy of emulation, right? Wrong, sadly, at least at North Andover High School in Massachusetts:

Two weeks ago, Erin [Cox] received a call from a friend at a party who was too drunk to drive. Erin drove to Boxford after work to pick up her friend. Moments after she arrived, the cops arrived too and busted several kids for underage possession of alcohol.

A North Andover High School honor student, Erin was cleared by police, who agreed she had not been drinking and was not in possession of alcohol. But Andover High told Erin she was in violation of the district’s zero tolerance policy against alcohol and drug use. In the middle of her senior year, Erin was demoted from captain of the volleyball team and told she would be suspended from playing for five games.

One of the central purposes of education is to teach students to consider the consequences of their actions. In this sense, Cox and her friend demonstrated greater wisdom than school officials. While the students clearly considered the potentially lethal consequences of attempting to drive drunk, school officials apparently haven’t considered how their “zero tolerance” policy might discourage sobers students from aiding inebriated colleagues in the future. As Alexander Abad-Santos notes at the Atlantic, “Cox did not break any laws; she did not drink, did not party — yet was still punished by the school. By reprimanding Cox, North Andover High is likely sending out a confusing and contradictory message to teens about drinking, designated drivers, and asking for help.” The Cox family lawyer agrees:

First They Came for My Coke, Then They Came for My Jack

Not satisfied with hounding smokers and purveyors of Big Gulp sodas – or even gun manufacturers – nanny-staters have reached way back into their historical toolkits to go after alcohol. That’s right, in this the 80th year since the repeal of Prohibition, a new coalition has arisen to take on the scourge of demon rum.

But these aren’t your great-granddaddy’s Baptists and bootleggers; instead we have a transnational alliance of “public health professionals” out to make the world a more sober place.  Not satisfied with the persuasiveness of their entreaties, however, they further want to muzzle alcohol producers and anyone else with a “stake” in the debate.  (Apparently limiting the freedom to drink isn’t enough for these people; the freedom of speech and to petition the government for redress of grievances are also suspect.)

Here’s Exhibit A, a “statement of concern” put out in February by a group of public health advocates calling themselves the Global Alcohol Policy Alliance.  In a nutshell, GAPA doesn’t like the fact that the beverage alcohol industry is involved in the debate on how to reduce alcohol abuse, not even the commitments that 13 of the largest alcohol producers made in support of the World Health Organization’s “Global Strategy to Reduce the Harmful Use of Alcohol.  The most revealing “reservation” the GAPA-niks have is item 3 on page 3:

Prior initiatives advanced by the alcohol industry as contributions to the WHO Global Strategy have major limitations from a public health perspective …

That sounds rather innocuous – an academic disagreement about alcohol policy – but let me put this in context.  The public health community consistently advocates “population-based” controls that simply seek to reduce total alcohol consumption, regardless of whether alcohol abuse declines.  There could be cirrhotic ne’er-do-wells dying in the streets, but as long as yuppies buy less Jack Daniel’s, all is fine.  The alcohol industry, or anyone that cares about actually fixing social problems rather than taking steps that at best just make politicians feel good – call it the inverse Baptists/bootleggers – prefers a targeted approach: keep booze away from kids, get alcoholics treatment, don’t drink bad moonshine that’ll make you go blind, etc.

Chris Christie Allows New Jerseyans to Quaff Better Wine

While perhaps more identified with eating than drinking, New Jersey Governor Chris Christie – who headlined Cato’s recent Milton Friedman Prize Dinner – signed a law in January that allowed out-of-state winemakers to sell directly to in-state consumers and retailers.  This wasn’t a spontaneous bit of New Year’s bonhomie – the U.S. Court of Appeals for the Third Circuit had ruled in Freeman v. Corzine that the previous rules benefiting in-state wineries was unconstitutional (that pesky Commerce Clause again) – but still it was a positive sign: even Wine Spectator took note.

More importantly, the district judge in charge of the nine-year lawsuit challenging that earlier law recently approved the consent decree whereby New Jersey’s new law remedied the claims brought by the out-of-state wineries.  The agreement creates an out-of-state plenary winery license (good luck saying that after having consumed too much of the the vintage) under which “foreign” wine can compete on an equal playing field with good ol’ New Jersey stock.  Specifically, the new law grants this license to out-of-state applicants, including those who sell their wares over the internet, who do not produce more than 250,000 gallons of wine per year and are duly licensed in another state.

The upshot is that the new law takes effect as of this month.

This all still seems like a bit too much regulation to me, but at least everyone is now subject to the same rules.  I may have to take advantage of this newfound freedom when I travel up to the Garden State for my college reunion in a few weeks.

For my previous writings on booze and the Commerce Clause, read this and listen to this.

Drinking Away Your Constitutional Problems

Santa Clara law professor Brad Joondeph, who runs the very helpful – as a primary document aggregator for all the Obamacare cases –  ACA Litigation Blog, thinks he’s stumbled onto something :

So after reading my roughly 500th ACA-litigation-related brief, motion, or filing of some sort, I think I have gotten a little punchy. But it occurs to me that a a great new drinking game for those ACA litigation buffs who sit around on Friday nights drinking beers – a huge cohort, I am sure – would be to read aloud briefs filed by the challengers, and take turns drinking when the word “unprecedented” is used.

Indeed, the argument that there is no Supreme Court precedent sanctioning the assertion of power the government claims  – that the individual mandate is, quite literally, unprecedented – goes back to the earliest articulated constitutional arguments against Obamacare, particularly by the “intellectual godfather” of the legal challenges.  I can tell you that Cato’s latest Obamacare brief, which we’ll be filing in the Eleventh Circuit – the Florida-led 26-state case – next week, uses the word three times.  (We also use “novel.”)

The drinking game that Joondeph proposes, however, is not, um, unprecedented.  Josh Blackman has been talking about it incessantly at least since our time writing about the Privileges or Immunities Clause.  He even blogged about it last August! 

I would suggest that Brad and Josh play the “unprecedented” drinking game to settle the score once and for all, but alas Josh doesn’t drink.  Maybe I should step in for him; if I can bet Yale law professor Akhil Amar $100 on the outcome of the litigation, I can certainly do this.

For other connections between booze and the Commerce Clause, see my recent post on the (unfortunately not unprecedented) Care Act.

On the Interstate Shipment of Green Beer

Today being St. Patrick’s Day, it seems appropriate to revisit the unlikely juxtaposition of two of my favorite legal policy topics: alcohol and the Commerce Clause.  (Listen to my podcast on the subject or read its transcript.)  The point of all this is that alcohol is no different from any other commodity in that states cannot erect arbitrary regulations that privilege in-state interests (be they retailers, wholesalers, or producers) ahead of their out-of-state counterparts.

But St. Paddy’s Day is not the only reason the issue is topical.  Last week, the Supreme Court declined to review the Fifth Circuit’s indefensible decision in Wine Country Gift Baskets.com v. Steen. It did so despite the Fifth Circuit’s upholding of a Texas law designed to protect Texas’s in-state liquor retailers from out-of-state competition, a holding that disregarded recent high-court precedent.

In Granholm v. Heald (2005), decided together with the Institute for Justice’s Swedenberg v. Kelly, the Supreme Court struck down a similar protectionist law. Both cases challenged laws that permitted in-state wine producers to sell directly to consumers while prohibiting similar sales from out-of-state producers. The Court held that, notwithstanding a provision in the 21st Amendment (which repealed prohibition) that allows states to regulate their own liquor industries, the Commerce Clause prohibits states from disrupting free trade by discriminating against out-of-state businesses in favor of in-state businesses. This interpretation of the Commerce Clause grew out of the common-sense understanding that, if left unchecked, state governments have strong incentives to protect in-state businesses (who are voters) at the expense of their (non-voting) out-of-state competitors. Without constitutional checks, such laws could eviscerate Congress’s constitutionally enumerated power to “regulate [make regular] commerce … among the several States.”  

Nevertheless, the Fifth Circuit decided to limit Granholm to wine producers. As is evident by the name, however, the Wine Country Gift Baskets.com case concerns a wine retailer. Yet Granholm explicitly said that states “may not enact laws that burden out-of-state producers or shippers simply to give a competitive advantage to in-state businesses.” It is dismaying that the Supreme Court didn’t care about the Fifth Circuit’s neglect of this language.

Granholm was an important blow against the heavily protectionist and cartelized liquor industry. As was documented in a pre-Granholm article in Cato’s Regulation magazine, the prohibition on direct shipment has been used to strangle small wineries as they struggle to access larger markets without having to go through the state-controlled distribution networks. Despite an explosion of wine-drinking and -making in this country in the last 30 years – with consumption increasing by nearly 50% between 1991-2001 and wineries quadrupling between 1974-2002 – the small winery still fights against an old-boy network of producers and distributors. In 2003, the top 30 wine companies still provided 90% of U.S. wine although they were less than 1% of the producers.

This is, of course, exactly how the top 30 wine companies want it.

Granholm dismantled some of this network. Unfortunately, Wine Country Gift Baskets.com will allow this unconstitutional infringement of the right to earn an honest living (see Timothy Sandefur’s excellent book of the same name) to persist in some states.

But Americans, like most of the world, appreciate their booze. During prohibition, Americans endured Tommy-guns, corruption, gangsters, and speakeasies just for a drink. If the government made it illegal to drink responsibly, many Americans were willing to thwart the law and drink irresponsibly.

The negative effects of prohibition were too visible to deny and, after 13 years of waging war on a non-compliant population, prohibition ended. In its wake, however, prohibition left another war, an 80-year “on-going, low-level trade war” (in the words of Granholm) between states and their three-tiered monopolies over the production, distribution, and sale of alcohol. And so, 21st Amendment or not, prohibition lives on – though the  colorful characters in spats carrying Tommy-guns have been replaced by iPad-wielding lobbyists and politicians who do their bidding.

Thanks to Trevor Burrus for his help with this blog post.

DWI Convictions Due to Faulty Breathalyzer Calibration

From the Washington Post:

Nearly 400 people were convicted of driving while intoxicated in the District since fall 2008 based on inaccurate results from breath test machines, and half of them went to jail, city officials said Wednesday.

D.C. Attorney General Peter Nickles said the machines were improperly adjusted by city police. The jailed defendants generally served at least five days, he said…

The District’s badly calibrated equipment would show a driver’s blood-alcohol content to be about 20 percent higher than it actually was, Nickles said. All 10 of the breath test machines used by District police were wrong, he said. The problem occurred when the officer in charge of maintaining the machines improperly set the baseline alcohol concentration levels, Nickles said.

This is the same jurisdiction where a woman who had a single glass of wine with dinner and a Blood Alcohol Concentration (BAC) of .03 was arrested for being under the influence in 2005. The national standard for a DWI arrest is .08, and anyone testing below .05 is presumed not to be intoxicated. The District of Columbia’s standard for arrest was anything above .01 if the officer deemed the driver intoxicated. Public outcry over the strict policy, particularly in a town built on tourism, prompted the D.C. Council to temporarily amend the law. The D.C. Police website still says that police can charge DUI (Driving Under the Influence, not Driving While Intoxicated) for a BAC of .07 or lower.

There is good reason to question the foundation of DWI laws and enforcement. Radley Balko makes the case that the federal push for reducing the national DWI BAC standard from .10 to .08 achieved little for public safety in Back Door to Prohibition: The New War on Social Drinking. Even Mothers Against Drunk Driving (MADD) founder Candy Lightner regrets the no-tolerance direction her organization has taken: “[MADD has] become far more neo-prohibitionist than I had ever wanted or envisioned… I didn’t start MADD to deal with alcohol. I started MADD to deal with the issue of drunk driving.”

Why Is Marijuana Still Illegal?

According to Rasmussen Reports, a majority of Americans believe that alcohol is more dangerous than marijuana:

Pot or not, that is the question.

Fifty-one percent (51%) of American adults say alcohol is more dangerous than marijuana, according to a new Rasmussen Reports national telephone survey. Just 19% disagree and say pot is worse.

But 25% say both are equally dangerous. Just two percent (2%) say neither is dangerous.

Younger adults are more likely than their elders to view alcohol as the more dangerous of the two.

Fifty-three percent (53%) of women say alcohol is more dangerous than marijuana, compared to 48% of men. Men by a two-to-one margin over women say pot is riskier, but women are more inclined to say both are dangerous.

Unmarried adults are more critical of alcohol than those who are married. Those with children at home think alcohol is more dangerous than those without kids living with them.

So why are pot users still being tossed into jail?

There are lots of good reasons why people shouldn’t use drugs.  But making drug use illegal only compounds the social consequences, turning a moral and health problem into a legal and criminal problem.  The result is the worst of both worlds:  all of the problems of drug use plus all of the problems of prohibition.  Unfortunately, those consequences flow overseas, further undermining fragile societies such as Afghanistan, Colombia, and Mexico and ultimately American security objectives as well.

It’s time to call off the Drug War.