OG Article by Dale Schafer
View our Fair Use Policy: here
My business clients, including cannabis businesses, are asking what the hell is
going on with the federal law that requires them to report their owners and
controllers by January 13, 2025? My current answer is that the requirement to
report BOIs is blocked by the courts. However, the situation is anything but clear
and will remain as clear as mud for the foreseeable future.
This legal battle revolves around a federal law passed in 2021 that seeks to
compel business owners and controllers to divulge their personal information and
heavily fine any business that knowingly refuse to comply. A deadline was set in
January of 2025 to be the reporting deadline for businesses formed before 2024.
In May of 2024, a group of business owners filed suit in Texas to block the
enforcement and ultimately to find the federal law unconstitutional.
The heart of the legal battle involves the federal governments constitutional
power to enact the law. The feds have become very comfortable enacting laws,
based on the Commerce Clause power, and having the courts rubber stamp their
exercise of such power. The plaintiffs asked for a nationwide injunction halting
enforcement of the law until the courts can flesh out the arguments and decide
the matter on its merits. On December 3, 2024, District Court Judeg Amos
Mazzart issued a nationwide injunction against the federal government and the
battle in the appellate courts took off in earnest.
Judge Mazzart held that the law was likely an unconstitutional exercise of
Commerce Clause power and shut down the program pending a trial on the
merits. On December 5, 2024, the government appealed to the fifth circuit Court
of Appeals and on December 17, 2024, they specifically asked for a stay of the
trial court injunction. On December 23, 2024, a motions panel of the fifth circuit
court of appeals issued a stay of the injunction, but on December 26, 2024, the
stay was vacated by the fifth circuit court of appeals and we are back to a
nationwide injunction against the feds enforcing the BOI requirements and its
fines. At this moment in time, there are no requirements to report BOI to the feds.
The limits of federal Commerce Clause power is at the heart of this disput. Since
the New Deal, the US Supreme Court has allowed significant intrusions into state
authority under the guise of Commerce Clause power. Since then there have
been few limitations in Supreme Court cases on Commerce Clause power, these
include a Gun Free School Zone law, a domestic violence prevention law and
Obama Care. However, we have a conservative majority that seems poised to
follow the tradition of limited powers in the federal government and restoring to
the states their traditional powers against federal intrusions into their rights.
Prior to the enactment of our federal Constitution in 1789, the states, under the
Articles of Confederation, enacted tariffs and taxes that severely interfered with
commerce between the states. One of the enumerated powers given to the
federal government was the power to control “commerce amongst the several
states”. However, the Bill of Rights prohibited the federal government from
enacting laws that restricted free association (1st Amendment), and invasions
into private affairs without a warrant (4th Amendment). The 9th Amendment
stands for the proposition that the rights enumerated in the Constitution are not
the only rights held by the people. The 10th Amendment vests all power in the
hands of the states and the people unless the power is specifically given to the
federal government or denied to the states. This case is going to test the line
between the Commerce Clause power of the feds and the Amendments that
prohibit the exercise of such power. Fasten your seatbelt.
I have been very vocal in my opposition of federal Commerce Clause power
since the Raich v Gonzales case was decided in 2005. Raich allowed the feds to
prohibit strictly “intrastate” activities under Commerce Clause authority because
of the alleged substantial impacts on interstate commerce by the intrastate
activities. Justice Clarence Thomas rightly asked in the Raich case if the 10th
Amendment was now a dead letter? The question in this case is whether the feds
can use their Commerce Clause power to compel disclosure of information
controlled by the states. Judge Mazzart ruled, for the purposes of the injunction,
that the information demanded is not commercial activity, was strictly a state
matter, and that compelled reporting likely violated the 1st, 4th, 9th, and 10
Amendments. The feds seem indignant that they would be questioned about their
power, but I believe the view of the current Supreme Court is more like what
Justice Thomas expressed in Raich. Since we don’t know what the incoming
administration will do with this case, all bets are off. Get some popcorn ready
because this will be a wild ride.
Comments