The first Monday of October is the beginning of the new term of the U.S. Supreme Court, which then runs until June or July of the following year. The first case (22-340) up before the court this term concerns the meaning of the word “and” in a federal law regarding prison terms for drug dealers.
Mark Pulsifer pleaded guilty in a federal district court to one count of distributing at least 50 grams of methamphetamine, in violation of federal law. Because he had a prior “serious drug felony,” he was subject to a mandatory minimum sentence of 15 years. However, his attorney argued that he qualified for a lesser sentence because he was eligible for “safety valve” relief under the First Step Act of 2018.
At issue is whether the word “and” in 18 U.S.C. §3553(f)(1) should be interpreted “severally” or “jointly.” The district court, affirmed by the Eighth Circuit Court of Appeals, rejected Pulsifer’s argument that it should be interpreted jointly, that is, does the defendant meet any one of several criteria for safety valve relief. A petition for a writ of certiorari was filed on October 7, 2022, and it was therein argued that the petition should be granted because the circuit courts have divided over the meaning of “and” in §3553(f)(1); the question is an important one, and this is an ideal case to resolve it; and the Eighth Circuit’s decision was wrong. The petition was granted on February 27, 2023.
The question at issue in Mark E. Pulsifer v. United States is:
whether the “and” in 18 U.S.C. §3553(f)(1) means “and,” so that a defendant satisfies the provision so long as he does not have (A) more than 4 criminal history points, (B) a 3-point offense, and (C) a 2-point offense (as the Ninth Circuit holds), or whether the “and” means “or,” so that a defendant satisfies the provision so long as he does not have (A) more than 4 criminal history points, (B) a 3- point offense, or (C) a 2-point violent offense (as the Seventh and Eighth Circuits hold).
Note what is not at issue in this case: the constitutionality of federal drug laws. But that is exactly what the real issue is.
Since the Marbury v. Madison case in 1803, the Supreme Court has struck down, in whole or in part, a number of federal (and state) laws that it deemed to be in violation of the Constitution. When faced with a case involving federal drug laws—like that of Mark E. Pulsifer v. United States—the Supreme Court should not waste five minutes hearing arguments about mandatory minimums, sentencing guidelines, safety valves, or criminal history points. The court should simply declare that all federal laws regarding drugs are unconstitutional and therefore null and void. To do otherwise is to ignore the real issue.
The real issue is that the federal government under the Constitution has no authority to have a Controlled Substances Act or concern itself with the nature, quantity, or production of any substance Americans wish to inhale, inject, or otherwise ingest into their bodies.
Under the Constitution, the United States was set up with a federal system of government under which the states granted a limited number of powers to a central government. As James Madison succinctly explained in Federalist No. 45: “The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite.” And just to reinforce this federal arrangement, the Tenth Amendment declares that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
When the federal government sought to limit the use of alcoholic beverages after World War I, it realized that it could do so only by amending the Constitution. If a constitutional amendment was needed to prohibit the “manufacture, sale, or transportation of intoxicating liquors,” then it should likewise be required if the federal government is to prohibit the manufacture, sale, or transportation of hallucinogenic drugs.
And not only is the war on drugs blatantly unconstitutional. It has also eviscerated other parts of the Constitution like the Fourth Amendment’s prohibition against unreasonable searches and seizures; increased the size and scope of government; and served as a pretext for a war on individual liberty and private property.
The war on drugs entails Soviet-style central planning by the federal government. Just as the government has a calculation problem when it comes to central economic planning, so also with drug regulation. The government can only subjectively and arbitrarily decide which drugs should be legal and which drugs should be illegal, which drugs should be regulated and which drugs should not be regulated, which drugs should be sold by prescription and which drugs should be available over the counter, and how drugs should be classified on a schedule. Drug regulation is at the whim of government busybodies and bureaucrats.
No one should ever be sentenced to prison for violating a federal drug-crime law. It doesn’t matter about mandatory minimums, sentencing guidelines, safety valves, or criminal history points. It doesn’t matter what type of drug. It doesn’t matter how potent the drug. It doesn’t matter the quantity of the drug. The Constitution is crystal clear: the federal government has no authority whatsoever to prohibit, regulate, or otherwise concern itself with drugs.
Mark Pulsifer should be freed from his prison cell.
