Sunday, May 29, 2005

Constitutional Chaos

I just read this article by the New York Times: http://www.nytimes.com/2005/05/29/nyregion/29cigarettes.html?

Basically it was the state of New York, through Eliot Spitzer, telling the Post Office that they needed to regulate people shipping cigarettes into the state of New York. They were pointing basically to tax laws and saying that the Post Office wasn't doing enough to make sure that people couldn't get cigarettes shipped to them in New York. The premise is that everybody in New York is doing 'their part' to stop the shipping of 'illegal cigarettes' and the Post Office is 'shamefully' sticking their heads in the sand and doing nothing about it.

I have a few problems with this. The number one problem is that after 'the Wine Case' the Supreme Court had just decided that the State of New York, amongst others, couldn't use protectionist measures to allow only certain wines to be sold in NY. The real crux of the opinion was that the 21st amendment allowed the state to restrict the age of people that could buy alcohol, but interstate mailing of wine had little to no effect on this and the dormant commerce clause reigns supreme. I see that same issue here. They are saying you can only buy cigaretters through NY merchants that make sure to put in all the applicable taxes. The only reason I can think of for this ban on internet cigarettes is because the state is losing tax money. I surely doubt there are serious concerns about underage smokers. It seems to me that this is covered by the dormant commerce clause. Why should the state get to regulate who can sell cigarettes to New Yorkers?

I have other problems with this action by the state. Another huge problem is that this seems to me like the state is trying to make federal officials enforce state laws. I can't remember the exact Con Law case, but it was decided that the federal government cannot make state officials enforce federal laws. There was a whole host of reasons why this is so, but the gist of the decision is that if the federal government makes a law then they have to enforce that law and cannot force the state to enforce it. I think this is the exact reverse of that. The state is trying to force federal officials, Post Office employees, to enforce NY state law. I think this is terrible. If New York enacts the law then NY can enforce the law. It is no different if NY passed a strict anti-jaywalking law and said that anyone caught jaywalking would spend 1 year in jail. This law obviously would never be enacted, but I am using it to provve a point. If NY then said 'hey FBI you have to enforce this and stop turning a blind eye to all the jaywalkers out there'. This is crossing a line. NY has to enforce NY state laws. This article is a butchering of the post office where it should instead be angry with the State.

Another problem with this is that NY is trying to regulate internet transactions. Many internet transactions have been exempted from state and federal taxes. There is a host of reasons for doing this. YOu can check out http://www.becker-posner-blog.com/archives/2005/05/blogging_spam_a.html for a better argument about internet taxation then I could ever give. Basically NY state is saying that you can't sell cigarettes over the internet without paying NY state taxes. They are De Facto taxing the internet. I think this is terrible and shouldn't happen at all. You may or may not agree with me about whether or not internet transactions should be taxed, but whether you do or don't they just aren't at this moment and NY shouldn't try and levy a tax.

Lastly I think this is a problem with Eliot Spitzer. Granted he has done a lot of good things through his post as NY's Attorney General I think sometimes he overregulates. Here the newspaper basically just pandered to his position and it doesn't seem that they took much time if any to research both sides of the issue. They saw that Eliot Spitzer was spearheading this and they took it for granted that it was good. They should have researched both sides of the issue instead of just asking a few Post Office officials their feelings and expecting that they are really going to cover the issues. I mean the consumer and taxpayer have a dog in this race and it seems that the newspaper assumes that they should be paying these excessive taxes and it is probably better if they do. I don't like it.

Lastly I think these types of taxes are not good in the first place. It is the state finding something that it doesn't particularly think people will stand up for and taxing it to death. Sin taxes are the name they give to it. I think that you shouldn't arbitrarily tax products just because they are considered sins and it is acceptable to tax them. Next thing you know in NY when you pass through a toll booth in an SUV you'll be paying a sin tax on driving a large vehicle.

In sum, I think that the article really missed a good story. They love state protectionist measures and will stand up for anything Eliot Spitzer does. It may seem to some that I am going against state rights here. I usually stand up strong for the rights of the state. Here I am standing up for the rights of the citizen. The right to decide whether or not you want to buy a product from your state or another state where it is cheaper and also the right to send something through the mail without it being searched.