The2nd in a series of 4 articles by RN Collins about legal issues, concepts and hemp
The Amendment That Wasn’t Necessary: Congress’s Statutory Authority to Prohibit
The Eighteenth Amendment was a political choice, not a constitutional requirement. Congress had already banned alcohol with ordinary legislation—and the Supreme Court upheld it.
Part 2 of 4: Constitutional Authority Analysis
Here’s a question that matters urgently to the hemp industry: Can Congress ban your business with a simple statute, or does elimination of an entire industry require a constitutional amendment?
The common assumption—reinforced by Prohibition’s association with the Eighteenth Amendment—is that such a drastic action demands constitutional-level authorization. Surely, the thinking goes, Congress cannot simply legislate an entire industry out of existence without amending the Constitution itself.
That assumption is wrong.
The historical record is unequivocal: Congress banned alcohol manufacturing and sales through ordinary legislation before the Eighteenth Amendment took effect, and the Supreme Court upheld the statutory prohibition as a valid exercise of Congressional power.[1]
For hemp businesses facing proposed prohibitory legislation in 2025, this history carries an ominous message: No constitutional amendment is required. Congress can act tomorrow.
The War-Time Prohibition Act: Statutory Ban Before Amendment
The Timeline That Matters
November 21, 1918: Congress passes the War-Time Prohibition Act, prohibiting manufacture of beer containing more than 0.5% alcohol (effective May 1, 1919) and sale of all intoxicating liquors (effective June 30, 1919).[2]
January 16, 1920: The Eighteenth Amendment is ratified by the states and takes effect.[3]
The gap: For eight months (June 30, 1919 to January 16, 1920), alcohol sales were prohibited nationwide under statutory authority alone, with no constitutional amendment in force.
The Constitutional Challenge
Jacob Ruppert, the New York brewer discussed in Article 1, challenged the War-Time Prohibition Act on constitutional grounds, arguing Congress lacked authority to prohibit alcohol absent a constitutional amendment.[4]
His arguments were substantial:
Enumerated powers limitation: The Constitution grants Congress only specific, enumerated powers. Nowhere does it explicitly authorize prohibition of intoxicating liquors.
Tenth Amendment reservation: Powers not delegated to Congress are reserved to the states. Regulation of alcohol, Ruppert argued, fell within states’ traditional police powers.
Commerce Clause doesn’t reach prohibition: While Congress can regulate interstate commerce, Ruppert contended this power doesn’t extend to prohibiting an entire category of commerce.
War powers are limited: Even accepting that war emergency justified temporary measures, Ruppert argued that complete prohibition exceeded what was “necessary and proper” to prosecute the war.[5]
These were not frivolous arguments. They raised genuine questions about the scope of federal power.
The Supreme Court’s Answer: Implied Powers Are Broad
In Jacob Ruppert v. Caffey (1920), Justice Louis Brandeis, writing for the Court, rejected Ruppert’s constitutional challenge and upheld statutory prohibition.[6]
The Necessary and Proper Clause
The Court grounded its holding in Article I, Section 8, Clause 18—the Necessary and Proper Clause—which grants Congress power “to make all Laws which shall be necessary and proper for carrying into Execution” its enumerated powers.[7]
The Court’s framework:
“The Constitution confers upon Congress the power to make all laws necessary and proper for carrying into execution all powers that are vested in it. Article 1, § 8, cl. 18. In the exercise of such non-enumerated or ‘implied’ powers it has long been settled that Congress is not limited to such measures as are indispensably necessary to give effect to its express powers, but in the exercise of its discretion as to the means of carrying them into execution may adopt any means, appearing to it most eligible and appropriate, which are adapted to the end to be accomplished and consistent with the letter and spirit of the Constitution.”[8]
This was not new doctrine. The Court cited McCulloch v. Maryland (1819), Chief Justice Marshall’s landmark opinion establishing that implied powers are as valid as express powers, and that Congress enjoys substantial discretion in selecting means to execute its constitutional responsibilities.[9]
War Powers as Constitutional Hook
The Court held that Congress’s express powers to declare war, raise armies, and provide for the national defense included implied power to take measures that would enhance military efficiency and war production.[10]
Alcohol prohibition served these ends by:
- Conserving grain supplies for food production
- Maintaining worker productivity in war industries
- Promoting military readiness and efficiency
- Preventing waste of food resources on liquor production[11]
The critical holding: “Since Congress has power to increase war efficiency by prohibiting the liquor traffic, no reason appears why it should be denied the power to make its prohibition effective.”[12]
Rejection of “Implied Power Upon Implied Power” Argument
Ruppert made a technical argument worth understanding because hemp businesses might attempt something similar: He contended that the power to prohibit intoxicating liquors was itself an implied power (derived from war powers), and that Congress could not then imply a further power to define what “intoxicating” means or to prohibit non-intoxicants similar to intoxicants.[13]
The Court rejected this formal logic:
“The argument is equivalent to saying that the war power of Congress to prohibit the liquor traffic does not extend to the adoption of such means to this end as in its judgment are necessary to the effective administration of the law…. This argument is a mere matter of words. The police power of a state over the liquor traffic is not limited to the power to prohibit the sale of intoxicating liquors supported by a separate implied power to prohibit kindred nonintoxicating liquors so far as necessary to make the prohibition of intoxicants effective; it is a single broad power to make such laws, by way of prohibition, as may be required to effectively suppress the traffic in intoxicating liquors.”[14]
Translation: Don’t get cute with formalistic arguments about “implied upon implied.” If Congress has power to prohibit harmful things, it has power to define those things and prohibit similar things that undermine the prohibition’s effectiveness.
Application to hemp: Congress’s power to prohibit controlled substances under the Controlled Substances Act would include power to prohibit hemp-derived intoxicants that are chemically similar to Schedule I cannabis, even though “hemp” was removed from scheduling. The Ruppert framework forecloses formalistic arguments about statutory categories.
Other Constitutional Bases for Prohibition
While Ruppert relied on war powers (a temporary justification), Congress possesses other enumerated powers that would support permanent alcohol or hemp prohibition.
The Commerce Clause
Article I, Section 8, Clause 3 grants Congress power “to regulate Commerce … among the several States.”[15]
Scope of commerce power: The Supreme Court has held that Congress’s commerce power is “broad” and extends to prohibition of items from interstate commerce entirely.[16]
Application to controlled substances: The Controlled Substances Act, 21 U.S.C. § 801 et seq., rests on Commerce Clause authority and has been upheld against constitutional challenge.[17] Congress could amend the CSA to:
- Re-schedule hemp-derived intoxicants
- Create new schedules for hemp products
- Narrow the hemp definition in 7 U.S.C. § 1639o
- Prohibit interstate commerce in intoxicating hemp products
No constitutional amendment required.
The Spending Power
Congress could use its spending power under Article I, Section 8, Clause 1 to condition federal funding on state adoption of hemp restrictions, similar to how it induced states to raise drinking ages to 21.[18]
The Taxation Power
Congress could prohibit hemp through prohibitively high taxation, similar to the National Firearms Act’s approach to regulating certain weapons through tax mechanisms.[19]
So Why Did Prohibition Advocates Pursue an Amendment?
If Congress possessed statutory authority to ban alcohol—as Ruppert confirmed—why did the temperance movement invest years of effort into passing the Eighteenth Amendment?
The answer reveals important lessons for current hemp debates.
Reason 1: Permanence and Symbolism
Constitutional amendments are harder to repeal than statutes. Repealing legislation requires only majority votes in Congress. Repealing a constitutional amendment requires:
- Two-thirds vote in both houses of Congress, or
- Constitutional convention called by two-thirds of state legislatures
- Plus ratification by three-fourths of states
The temperance movement wanted to make Prohibition as permanent as possible. Embedding it in the Constitution made reversal far more difficult.
As it turned out, this calculation was correct. Even though Prohibition became deeply unpopular, repeal required the Twenty-First Amendment (1933)—the only constitutional amendment ever to repeal another amendment. The process took years of organized effort. A simple statute could have been repealed much faster.
Symbolic significance: Constitutional status elevated Prohibition from policy choice to fundamental law. The temperance movement sought moral validation through constitutional enshrinement. This was about declaring alcohol immoral at the highest legal level, not just making it illegal.
Reason 2: Federalism Concerns
In the early 20th century, there were genuine legal questions about federal power to regulate intrastate activity. The Commerce Clause jurisprudence that now permits broad federal regulation had not yet fully developed.
State sovereignty concerns: Some legal scholars and judges believed alcohol regulation was a matter reserved to states under the Tenth Amendment. A constitutional amendment definitively resolved this question by explicitly granting federal power.
Avoiding litigation: While Ruppert ultimately upheld statutory prohibition, that decision came after substantial litigation and uncertainty. A constitutional amendment foreclosed such challenges from the outset.
Reason 3: Concurrent Enforcement
The Eighteenth Amendment’s Section 2 provided: “The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.”[20]
This “concurrent power” language authorized both federal and state enforcement, creating a comprehensive enforcement regime. State and local police could enforce federal Prohibition, and federal agents could enforce state prohibitions.
Practical significance: Dual enforcement made evasion far more difficult. Bootleggers faced prosecution by state police, federal agents, and local sheriffs simultaneously.
Reason 4: Political Momentum
By 1917, the temperance movement had achieved remarkable political success. Prohibition laws existed in numerous states. The movement had the votes for a constitutional amendment.
Strategic calculation: Why settle for a statute that the next Congress could repeal, when you have the political capital to achieve constitutional status?
The movement understood that political winds shift. Lock in victory at the highest level while you can.
What This History Means for Hemp
The Prohibition experience provides several critical lessons for current hemp regulation debates:
Lesson 1: Statutory Prohibition Is Constitutionally Sufficient
Congress can ban hemp-derived THC products through ordinary legislation. The proposed Senate appropriations bill language would suffice. No constitutional amendment is necessary.
Constitutional authorities available:
- Commerce Clause: Interstate commerce in hemp products
- Controlled Substances Act: Existing statutory framework for drug prohibition
- Necessary and Proper Clause: Measures to effectuate drug control
- Spending Clause: Conditional funding to induce state compliance
Any of these provide adequate constitutional foundation.
Lesson 2: “But It’s Not a Controlled Substance!” Doesn’t Work
Hemp advocates might argue: “The 2018 Farm Bill explicitly removed hemp from the Controlled Substances Act. Congress can’t just reverse that without another Farm Bill amendment.”
This argument fails under Ruppert‘s logic. There, brewers operated under explicit statutory and Presidential authorization to manufacture 2.75% beer. Congress simply passed a new statute prohibiting such beer. The Court upheld the reversal.[21]
Congress has plenary authority to amend its own statutes. It can reverse the 2018 Farm Bill’s hemp legalization through:
- Appropriations bill riders (exactly what’s happening now)
- Amendments to the Farm Bill
- Amendments to the Controlled Substances Act
- Standalone legislation
No special process required. Ordinary legislative procedures suffice.
Lesson 3: The Amendment Pathway Is Available But Unlikely
Could hemp prohibition proceed via constitutional amendment? Theoretically, yes. But it’s politically implausible:
Amendment requires:
- Two-thirds vote in House (290 votes)
- Two-thirds vote in Senate (67 votes)
- Ratification by 38 state legislatures
Current hemp ban requires:
- Majority vote in House (218 votes)
- Majority vote in Senate (51 votes)
- Presidential signature
Why pursue the harder path? The temperance movement had supermajority support. Hemp prohibition advocates do not. They’ll take the easier statutory route.
Lesson 4: Quick Reversal Is Legally Permissible
The 2018 Farm Bill legalized hemp seven years ago. If Congress bans intoxicating hemp products in 2025, that’s a seven-year window.
Prohibition moved faster: Kansas authorized brewing (pre-1881), banned it (1881), and the Supreme Court upheld the ban (1887)—a six-year reversal.[22]
Federal authorization of 2.75% beer existed under the Lever Act (1917), was revoked by the War-Time Prohibition Act (1918), and the Supreme Court upheld the reversal (1920)—a three-year turnaround.[23]
Seven years is an eternity in regulatory time. Courts will not find a seven-year authorization period creates some kind of permanent vested right.
The Doctrinal Foundation: Why Statutory Authority Suffices
For legal practitioners counseling hemp businesses, understanding why statutory prohibition is constitutionally sufficient requires examining the scope of Congressional power.
Enumerated Powers and Implied Powers
The Constitution grants Congress specific enumerated powers in Article I, Section 8:
- Power to regulate interstate commerce (Clause 3)
- Power to declare war (Clause 11)
- Power to raise and support armies (Clause 12)
- Power to make all laws “necessary and proper” for executing these powers (Clause 18)
Chief Justice Marshall’s framework from McCulloch v. Maryland (1819) established that:
“Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”[24]
Application: If the “end” (prohibiting intoxicating substances) is legitimate, Congress may choose any “appropriate” means to achieve it, including:
- Scheduling under the CSA
- Amending the hemp definition
- Restricting interstate commerce
- Prohibiting manufacture and sale
The “Degree of Necessity” Doctrine
Everard’s Breweries established a critical principle of judicial review: Courts cannot second-guess Congressional judgments about what measures are “necessary” to achieve legitimate ends.
“Where the means adopted by Congress are not prohibited and are calculated to effect the object intrusted to it, this Court may not inquire into the degree of their necessity; as this would be to pass the line which circumscribes the judicial department and to tread upon legislative ground.”[25]
What this means: Even if alternatives exist (regulation instead of prohibition; testing requirements instead of bans), courts defer to Congress’s choice of means. The judiciary doesn’t conduct cost-benefit analysis or evaluate whether less restrictive alternatives would suffice.
Application to hemp: Congress could reasonably conclude that:
- Intoxicating hemp products threaten public health
- State-by-state regulation has failed to prevent youth access
- Federal prohibition is necessary to effectuate drug control policy
- Partial restrictions would be ineffective (the Everard’s reasoning)
Courts would defer to these legislative judgments, even if evidence suggests regulation would suffice.
The Structural Argument
Some might argue there’s a structural difference: The Eighteenth Amendment specifically addressed alcohol prohibition, suggesting that constitutional status was required for such action.
This argument fails for two reasons:
First, temporal precedent: The War-Time Prohibition Act preceded the Amendment and was upheld as constitutional. The Amendment came after statutory prohibition was already validated.[26]
Second, the Amendment’s actual purpose: The Eighteenth Amendment’s Section 2 granted “Congress and the several States … concurrent power to enforce this article by appropriate legislation.”[27] The Amendment’s function was to authorize state enforcement (overcoming federalism objections), not to provide the only constitutional basis for federal action.
Indeed, the Volstead Act and subsequent enforcement legislation rested on the Amendment’s enforcement clause, not on some theory that only the Amendment could authorize prohibition. Congress was exercising its Article I, Section 8, Clause 18 power to “enforce” the Amendment through “appropriate legislation”—the same Necessary and Proper authority that supports all implied Congressional powers.
Modern Congressional Authority Over Hemp
Today, Congress possesses even clearer authority to regulate or prohibit hemp than it did to prohibit alcohol in 1918.
The Controlled Substances Act Framework
The Controlled Substances Act, 21 U.S.C. § 801 et seq., establishes comprehensive federal authority over drugs and controlled substances. The CSA:
- Creates five schedules of controlled substances
- Grants DEA authority to schedule and de-schedule substances
- Prohibits manufacture, distribution, and possession of scheduled substances
- Preempts conflicting state law
- Rests on Commerce Clause authority[28]
The CSA has been repeatedly upheld against constitutional challenge. See Gonzales v. Raich, 545 U.S. 1 (2005) (upholding CSA application to intrastate medical marijuana cultivation under Commerce Clause).
How Congress Could Prohibit Hemp (Multiple Pathways)
Option 1: Amend the hemp definition in 7 U.S.C. § 1639o
- Change “0.3% delta-9 THC” to “0.3% total THC”
- This is exactly what the proposed Senate language does
- Simple statutory amendment to the Farm Bill
Option 2: Amend the Controlled Substances Act
- Re-schedule hemp-derived intoxicants under 21 U.S.C. § 812
- Create new schedule category for hemp derivatives
- Prohibit specific cannabinoids (delta-8, THCa, etc.)
Option 3: Appropriations riders
- Prohibit use of federal funds for hemp enforcement exemptions
- Condition agricultural subsidies on hemp restrictions
- What’s happening now with Senate appropriations bill
Option 4: Direct prohibition statute
- Standalone “Hemp Product Safety Act” or similar
- Comprehensive prohibition of intoxicating hemp products
- Independent statutory scheme
All are constitutionally permissible. None requires constitutional amendment.
The Farm Bill Isn’t a Constitutional Entrenchment
Some hemp advocates appear to believe the 2018 Farm Bill’s legalization of hemp created some kind of statutory entrenchment that can only be reversed through another comprehensive Farm Bill.
This is incorrect as a matter of constitutional law.
Congress can amend or repeal any statute through:
- Subsequent standalone legislation
- Amendments to different statutes (e.g., CSA amendments that affect hemp)
- Appropriations riders
- Any other legislative vehicle
The 2018 Farm Bill itself recognized this, explicitly stating: “Nothing in this subchapter precludes or limits the authority of the Secretary [of Agriculture] to issue regulations.”[29] Congress reserved ongoing regulatory authority.
Moreover, even without such explicit reservation, Congress always retains authority to amend its prior enactments. That’s what legislative supremacy means.
The Eighteenth Amendment’s Actual Function
Understanding what the Eighteenth Amendment actually did clarifies what wasn’t constitutionally necessary.
What the Amendment Accomplished
Text of Section 1: “After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.”[30]
Section 2: “The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.”[31]
The Amendment’s functions:
- Definitively resolved federalism concerns – Explicitly granted federal authority, foreclosing Tenth Amendment challenges
- Authorized state enforcement of federal prohibition – The “concurrent power” language was novel and critical for practical enforcement
- Made prohibition harder to repeal – Required another constitutional amendment (the Twenty-First in 1933)
- Provided symbolic/moral authority – Elevated prohibition to constitutional status
What the Amendment did NOT do:
- Provide the only constitutional basis for federal prohibition (Congress already had that under war powers and, arguably, commerce power)
- Create substantive power that didn’t exist elsewhere
- Operate as a necessary precondition to prohibition
The Counterfactual: What If No Amendment?
Suppose the Eighteenth Amendment had never been ratified. Could Prohibition have continued under statutory authority alone?
Answer: Yes, with modifications.
Congress could have:
- Relied on Commerce Clause to prohibit interstate alcohol commerce
- Used taxing power to make alcohol economically prohibitive (as it did with firearms)
- Conditioned federal highway/agricultural funding on state prohibition (spending power)
- Prohibited importation under foreign commerce authority
States could have:
- Maintained their own prohibition laws (many already had them)
- Enforced intrastate prohibitions under police power
- Coordinated through interstate compacts
The limitation: Without the Amendment’s “concurrent power” language, federal enforcement of state prohibitions would have been more complicated. But federal prohibition of federal crimes (interstate commerce, importation) would have been entirely viable.
The bottom line: The Amendment made enforcement easier and repeal harder, but it wasn’t constitutionally necessary for prohibition itself.
Implications for Hemp Prohibition
The Amendment Red Herring
Some hemp advocates have suggested that eliminating an industry explicitly legalized by federal statute might require constitutional-level action. This is wishful thinking unsupported by precedent.
The argument might go:
- “Congress explicitly legalized hemp in 2018”
- “Reversal would eliminate an entire agricultural sector”
- “Such drastic action requires more than ordinary legislation”
- “At minimum, a new Farm Bill is needed, not an appropriations rider”
Why this fails:
Ruppert establishes that explicit statutory authorization creates no constitutional immunity from reversal by subsequent statute. Presidential permission to manufacture 2.75% beer was withdrawn by Congressional legislation, and the Court upheld the reversal.[32]
Moreover, the scale of the affected industry is constitutionally irrelevant. Whether prohibition affects ten businesses or ten thousand, the constitutional analysis is identical. Mugler involved a single brewery; Ruppert involved the entire national brewing industry. Same result: no compensation required.
No Procedural Safeguards Required
Hemp advocates might also argue that such significant regulatory reversal requires:
- Notice and comment rulemaking
- Economic impact analysis
- Consideration of alternatives
- Explicit Congressional authorization (not just appropriations riders)
Constitutional law provides none of these protections.
Ruppert held that immediate effective dates are permissible, even when they provide no transition period.[33] If overnight prohibition is constitutional, certainly one-year transition periods (as proposed in current Senate language) easily pass muster.
Administrative law may require notice and comment for agency regulations under the Administrative Procedure Act, 5 U.S.C. § 553. But when Congress acts directly through legislation, no such requirements apply. Legislative process requirements are set by Congress’s own rules, not by the Constitution.
The Political Constitution
The real safeguard against precipitous prohibition isn’t constitutional—it’s political.
Political checks on Congressional action:
- Bicameralism (both House and Senate must pass)
- Presentment (Presidential signature or veto override required)
- Electoral accountability (members face voters)
- Lobbying and public pressure
- Media scrutiny
- Industry advocacy
These political processes are functioning right now on the hemp ban:
- Sen. Rand Paul is fighting the ban
- Industry groups are lobbying intensively
- Alcohol companies are pushing for it
- Media coverage is substantial
- Public debate is ongoing
This is how the Constitution is supposed to work. The political process, not judicial review, provides the primary check on legislative action.
If that process produces a hemp ban, the remedy isn’t constitutional litigation (which will fail under Mugler). The remedy is changing the political dynamics that produced the ban.
Why Lawyers Should Understand This
For attorneys counseling hemp businesses, clarity on the constitutional authority question is essential for several reasons:
1. It Affects Litigation Strategy
If clients believe a constitutional amendment is required, they might pursue:
- Challenges to appropriations riders as improper vehicles
- Arguments that only a Farm Bill can reverse Farm Bill
- Procedural challenges based on legislative process
These arguments will fail. Don’t waste client resources on losing claims.
2. It Shapes Settlement Negotiations
If government lawyers understand their authority is clear, they have no incentive to negotiate. Your constitutional challenges won’t create leverage.
Better leverage comes from:
- Administrative law challenges (arbitrary and capricious review)
- Political pressure on enforcement
- Practical implementation problems
- Public opinion and media pressure
3. It Informs Client Counseling
Clients need accurate risk assessment. If you tell them “Congress would need a constitutional amendment to ban us,” and then Congress bans them with a statute, your credibility is destroyed and the client faces business collapse without adequate preparation.
Accurate advice: “Congress can ban hemp products tomorrow through ordinary legislation. Here’s the political landscape. Here’s the timeline. Here’s what you should do to prepare.”
4. It Affects Fee Agreements
If you take a contingency case believing you can challenge statutory hemp prohibition as exceeding Congressional authority, you’ll lose and earn nothing.
Fee structure should reflect realistic odds: Given that constitutional authority challenges will fail, either don’t take the case, or structure fees to account for near-certain loss (hourly billing, not contingency).
The Question Courts Won’t Answer
There’s a deeper constitutional question lurking beneath the surface: Should Congress have such broad authority to eliminate industries without compensation?
The policy arguments against current doctrine:
- Creates regulatory uncertainty that chills investment
- Allows government to destroy billions in value arbitrarily
- Provides no check on pretextual health justifications
- Enables regulatory capture (incumbents eliminating competitors)
- Punishes good-faith compliance with existing law
The policy arguments for current doctrine:
- Government must be able to respond to new health threats
- Compensation requirement would paralyze public health regulation
- Political process provides adequate check
- Property owners profit from legal activities while permissible
- Investors assume regulatory risk in uncertain industries
The Supreme Court has chosen the second position and shows no indication of revisiting it. The political branches, not courts, must resolve this tension.
Conclusion: Clear Authority, Harsh Result
The constitutional analysis is straightforward: Congress possesses clear authority to prohibit hemp-derived THC products through ordinary legislation. No constitutional amendment is required.
This authority rests on:
- Commerce Clause power over interstate commerce
- Necessary and Proper Clause supporting drug control measures
- Existing Controlled Substances Act framework
- Historical precedent in Ruppert upholding statutory prohibition
For hemp businesses, this means:
- ✗ No constitutional barrier to statutory ban
- ✗ No procedural safeguards beyond ordinary legislation
- ✗ No requirement for Farm Bill amendment
- ✗ No constitutional entrenchment of 2018 legalization
The battle over hemp prohibition is political, not constitutional. And as Article 4 of this series will explore, that political battle is being driven by alcohol industry interests seeking to eliminate a competitor—with full legal authority to do so.
Next in this series:
- Article 3: What hemp businesses can actually do (legal and political strategies)
- Article 4: Big alcohol’s regulatory capture play (current politics)
REFERENCES
[1] Mugler v. Kansas, 123 U.S. 623, 624 (1887), https://supreme.justia.com/cases/federal/us/123/623/.
[2] KAN. CONST. art. XV, § 10 (1880) (repealed 1948); Mugler, 123 U.S. at 624.
[3] 1881 Kan. Sess. Laws ch. 128, § 1; Mugler, 123 U.S. at 624.
[4] Jacob Ruppert v. Caffey, 251 U.S. 264, 281 (1920), https://supreme.justia.com/cases/federal/us/251/264/.
[5] Id. at 288-93 (arguments of counsel).
[6] Id. at 264.
[7] U.S. CONST. art. I, § 8, cl. 18.
[8] Ruppert, 251 U.S. at 296 (collecting cases).
[9] See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421-22 (1819), https://supreme.justia.com/cases/federal/us/17/316/.
[10] See Ruppert, 251 U.S. at 296-97.
[11] See id. at 297-99.
[12] Id. at 296.
[13] Id. at 295-96.
[14] Id. at 299 (emphasis added).
[15] U.S. CONST. art. I, § 8, cl. 3.
[16] See, e.g., Champion v. Ames (The Lottery Case), 188 U.S. 321, 357 (1903), https://supreme.justia.com/cases/federal/us/188/321/.
[17] See Gonzales v. Raich, 545 U.S. 1 (2005), https://supreme.justia.com/cases/federal/us/545/1/.
[18] See South Dakota v. Dole, 483 U.S. 203 (1987), https://supreme.justia.com/cases/federal/us/483/203/.
[19] See Sonzinsky v. United States, 300 U.S. 506 (1937), https://supreme.justia.com/cases/federal/us/300/506/.
[20] U.S. CONST. amend. XVIII, § 2 (repealed 1933).
[21] Ruppert, 251 U.S. at 304.
[22] Mugler, 123 U.S. 623.
[23] Ruppert, 251 U.S. 264.
[24] McCulloch, 17 U.S. (4 Wheat.) at 421.
[25] James Everard’s Breweries v. Day, 265 U.S. 545, 560 (1924), https://supreme.justia.com/cases/federal/us/265/545/.
[26] Ruppert, 251 U.S. at 296-300.
[27] U.S. CONST. amend. XVIII, § 2.
[28] 21 U.S.C. § 801 et seq., https://www.law.cornell.edu/uscode/text/21/chapter-13.
[29] 7 U.S.C. § 1639p(a)(3)(A), https://www.law.cornell.edu/uscode/text/7/1639p.
[30] U.S. CONST. amend. XVIII, § 1.
[31] Id. § 2.
[32] Ruppert, 251 U.S. at 304.
[33] Id. at 301-02.
READ THE SERIES:
- Article 1: The Brewers Who Lost Everything ← Previous
- Article 2: The Amendment That Wasn’t Necessary ← You are here
- Article 3: What Hemp Businesses Can Actually Do ← Next
- Article 4: Big Alcohol’s Regulatory Capture
FULL REFERENCE LIST: Available at the end of Article 4
Cannabis Law Report | Legal Analysis for Cannabis Policy Professionals
