PACT Act put on temp. hold!

[Judge Faust]

http://www.lininteractive.com/ny_buf...6-28-10%29.pdf

Maybe it is completely on hold until the 7th.

I don't know enough about this to speculate.

Does anyone know if this restraining order applies to anyone other then Red Earth LLC? Or outside the Western District of New York?

It's like this: restraining orders are specific as to the party, temporary injunctions cover everyone.

In other words, the plaintiff here got a restraining order, so the law cannot be enforced against them (and them alone) for the time being. It doesn't apply to anyone else.

HOWEVER, they also applied for a preliminary injunction (that's what the July 7 hearing is for). If granted, it would basically nullify the law until the court can reach a final decision as to its validity. Thus, for everyone here, preliminary injunction = very good.

[Joe234]

Indian Country Today
http://www.indiancountrytoday.com/national/northeast/97517284.html


PACT Act stopped temporarily

Originally printed at http://www.indiancountrytoday.com/na.../97517284.html

BUFFALO, N.Y. – A district court judge has stopped the implementation of a new law that would effectively put out of business all Native American Internet mail order cigarette sales.

U.S. District Judge Richard J. Arcara, of Western District Court of New York, issued a temporary restraining order June 28, stopping the U.S. government from enforcing the Prevent All Cigarette Trafficking Act, which would prevent the shipment of cigarettes through the U.S. Postal Service. The act was supposed to go into effect the next day.

Aaron Pierce, a Seneca Nation of Indians citizen and business owner, sought the TRO and a preliminary injunction, claiming that the PACT Act is unconstitutional and targets Native mail order cigarette businesses. He sells untaxed cigarettes through Internet mail order sales at his Red Earth and Seneca Smokeshop on Seneca territory. He brought the action against the U.S. government June 25.

In issuing the TRO, Arcara said Pierce had demonstrated the three required standards: he would suffer irreparable injury without a TRO in place; he had demonstrated a likelihood of success on the merits of his claim that the PACT Act violates various provisions of the Constitution; and a TRO is in the public interest.

The National Association of Convenience Stores, a dedicated foe of Native cigarette sales, was not pleased by the court action.

“We are very disappointed in the ruling and reviewing all possibilities for a legal response. NACS was a strong proponent for passage of the PACT Act and worked for years to obtain its enactment,” said Lyle Beckwith, NACS senior vice president of government relations. “We will not stop fighting.”

President Barack Obama signed the PACT Act into law at the end of March. In addition to banning the U.S. Postal Service from delivering cigarettes and certain other tobacco products, the act also requires online cigarette sellers to pay all federal, state and local taxes and affix tax stamps before delivering any products to any customers; requires sellers to register with the state where they are based and make periodic reports to state tax collection officials; and requires sellers to verify the age and ID of online customers when they purchase cigarettes or other tobacco products and when they receive them.

Violators of the act could be subject to civil fines and face felony charges, including a possible prison sentence of up to three years.

Pierce’s complaint claims the PACT Act violates the Commerce Clause, the Import-Export Clause, the Due Process Clause, the Equal Protection Clause, the 10th Amendment, the principles of federalism, and Native American treaties.

He claims, for example, that the Commerce Clause is violated because, among other things, it puts an undue burden on cigarette sellers to collect taxes in the states where their cigarettes are delivered rather than where they are sold, transferring Congress’ power to tax interstate commerce to state and local governments.

“The PACT Act’s burden on purveyors is not a minimal burden; rather it is an extraordinary burden. In contrast to requiring a retailer to collect a tax from a consumer who is physically in the retailer’s presence, on behalf of the state in which the retailer is located, the PACT Act requires purveyors to comply with thousands of state and local tax statutes, regulations and rules as well as any other cigarette legislation across the country, which, given the Commerce Clause, have no application to them,” the complaint says.

Even the act of Congress delegating its legislative power to tax to state and local governments is impermissible and unconstitutional, the complaint says.

Pierce’s complaint says the PACT Act violates due process rights because it is “unconstitutionally vague” to the point that it is impossible for him or other vendors to figure out its compliance requirements, “yet, non-compliance will result in several criminal penalties.”

The PACT Act violates the equal protection rights of Pierce and other Native Americans “by failing to recognize Native American sovereignty. Regardless of whether Congress intended to single out Natives, the act will have that effect. Unlike a non-Native retailer, by virtue of their sovereign rights, Native retailers can sell cigarettes to other Natives without collecting state sales and use taxes. Yet, under the PACT Act, Red Earth faces the peril of civil and criminal penalties if it continues to exercise those sovereign rights. As a result, the act applies more forcefully against Native retailers than it does against non-Native retailers,” the complaint says.

The lawsuit also claims the PACT Act is “motivated by animus” in targeting “remote sellers of cigarettes” and that violates the plaintiff’s equal protection rights.

“When the Supreme Court has examined legislation that it found to have been motivated by animus toward a politically-unpopular group, it has been willing to strike down such legislation under a ‘mere rationality’ test,” the complaint says.

The PACT Act is irrational, the lawsuit asserts, because it presumes all Internet and other remote tobacco sellers are not law abiding simply by virtue of being remote sellers, and it presumes that cigarette traffickers are more prone to buying cigarettes from remote sellers than point-of-sale sellers.

The complaint says Congress exposed its animus toward remote sellers in the PACT Act’s purported purpose to have “remote sellers comply with the same laws that apply to law-abiding tobacco retailers.”

“This language reveals an explicit and unfounded presumption that all remote sellers of cigarettes are criminals (and) raises a serious question regarding the legitimacy of Congress’ purpose.”

Pierce could not be reached for comment. His attorney, Lisa A, Coppola of the Buffalo firm of Rupp, Baase, Pfalzgraf, Cunningham & Coppola, issued a statement saying she is “looking forward to the final resolution of this matter as soon as possible.”

A hearing is scheduled for July 2.

[danielan]

It's like this: restraining orders are specific as to the party, temporary injunctions cover everyone..

Thanks!

[EricHill78]

National association of convenience stores??? Who is their spokesperson.. Apu??

[Joe234]

National association of convenience stores??? Who is their spokesperson.. Apu??

The country of India.

[GoVegan]

National association of convenience stores??? Who is their spokesperson.. Apu??

Careful now or you may get banned from getting anywhere near a slurpee machine again!

[Snusdog]

Indian Country Today
http://www.indiancountrytoday.com/national/northeast/97517284.html


PACT Act stopped temporarily

Originally printed at http://www.indiancountrytoday.com/na.../97517284.html

BUFFALO, N.Y. – A district court judge has stopped the implementation of a new law that would effectively put out of business all Native American Internet mail order cigarette sales.

U.S. District Judge Richard J. Arcara, of Western District Court of New York, issued a temporary restraining order June 28, stopping the U.S. government from enforcing the Prevent All Cigarette Trafficking Act, which would prevent the shipment of cigarettes through the U.S. Postal Service. The act was supposed to go into effect the next day.

Aaron Pierce, a Seneca Nation of Indians citizen and business owner, sought the TRO and a preliminary injunction, claiming that the PACT Act is unconstitutional and targets Native mail order cigarette businesses. He sells untaxed cigarettes through Internet mail order sales at his Red Earth and Seneca Smokeshop on Seneca territory. He brought the action against the U.S. government June 25.

In issuing the TRO, Arcara said Pierce had demonstrated the three required standards: he would suffer irreparable injury without a TRO in place; he had demonstrated a likelihood of success on the merits of his claim that the PACT Act violates various provisions of the Constitution; and a TRO is in the public interest.

The National Association of Convenience Stores, a dedicated foe of Native cigarette sales, was not pleased by the court action.

“We are very disappointed in the ruling and reviewing all possibilities for a legal response. NACS was a strong proponent for passage of the PACT Act and worked for years to obtain its enactment,” said Lyle Beckwith, NACS senior vice president of government relations. “We will not stop fighting.”

President Barack Obama signed the PACT Act into law at the end of March. In addition to banning the U.S. Postal Service from delivering cigarettes and certain other tobacco products, the act also requires online cigarette sellers to pay all federal, state and local taxes and affix tax stamps before delivering any products to any customers; requires sellers to register with the state where they are based and make periodic reports to state tax collection officials; and requires sellers to verify the age and ID of online customers when they purchase cigarettes or other tobacco products and when they receive them.

Violators of the act could be subject to civil fines and face felony charges, including a possible prison sentence of up to three years.

Pierce’s complaint claims the PACT Act violates the Commerce Clause, the Import-Export Clause, the Due Process Clause, the Equal Protection Clause, the 10th Amendment, the principles of federalism, and Native American treaties.

He claims, for example, that the Commerce Clause is violated because, among other things, it puts an undue burden on cigarette sellers to collect taxes in the states where their cigarettes are delivered rather than where they are sold, transferring Congress’ power to tax interstate commerce to state and local governments.

“The PACT Act’s burden on purveyors is not a minimal burden; rather it is an extraordinary burden. In contrast to requiring a retailer to collect a tax from a consumer who is physically in the retailer’s presence, on behalf of the state in which the retailer is located, the PACT Act requires purveyors to comply with thousands of state and local tax statutes, regulations and rules as well as any other cigarette legislation across the country, which, given the Commerce Clause, have no application to them,” the complaint says.

Even the act of Congress delegating its legislative power to tax to state and local governments is impermissible and unconstitutional, the complaint says.

Pierce’s complaint says the PACT Act violates due process rights because it is “unconstitutionally vague” to the point that it is impossible for him or other vendors to figure out its compliance requirements, “yet, non-compliance will result in several criminal penalties.”

The PACT Act violates the equal protection rights of Pierce and other Native Americans “by failing to recognize Native American sovereignty. Regardless of whether Congress intended to single out Natives, the act will have that effect. Unlike a non-Native retailer, by virtue of their sovereign rights, Native retailers can sell cigarettes to other Natives without collecting state sales and use taxes. Yet, under the PACT Act, Red Earth faces the peril of civil and criminal penalties if it continues to exercise those sovereign rights. As a result, the act applies more forcefully against Native retailers than it does against non-Native retailers,” the complaint says.

The lawsuit also claims the PACT Act is “motivated by animus” in targeting “remote sellers of cigarettes” and that violates the plaintiff’s equal protection rights.

“When the Supreme Court has examined legislation that it found to have been motivated by animus toward a politically-unpopular group, it has been willing to strike down such legislation under a ‘mere rationality’ test,” the complaint says.

The PACT Act is irrational, the lawsuit asserts, because it presumes all Internet and other remote tobacco sellers are not law abiding simply by virtue of being remote sellers, and it presumes that cigarette traffickers are more prone to buying cigarettes from remote sellers than point-of-sale sellers.

The complaint says Congress exposed its animus toward remote sellers in the PACT Act’s purported purpose to have “remote sellers comply with the same laws that apply to law-abiding tobacco retailers.”

“This language reveals an explicit and unfounded presumption that all remote sellers of cigarettes are criminals (and) raises a serious question regarding the legitimacy of Congress’ purpose.”

Pierce could not be reached for comment. His attorney, Lisa A, Coppola of the Buffalo firm of Rupp, Baase, Pfalzgraf, Cunningham & Coppola, issued a statement saying she is “looking forward to the final resolution of this matter as soon as possible.”

A hearing is scheduled for July 2.

Sounds like they have been reading the forum.

Injunction = very good.

We will have to keep a close eye on this one

[knucklesnus]

I ordered the other day from Genuine Tobacco. They even had a thing on their site saying the PACT act was lifted. So I ordered and asked yesterday if it was shipped. This is what I get today.



No it has not yet shipped yet. There is going to be a delay in shipping tobacco, do to the new law that went into effect, we are not 100% sure if we can ship out tobacco again yet.



****ing HATE this country.

[Veganpunk]

Signed. I'm number 140.

[knucklesnus]

HOW'S THE PACT ACT WORKING OUT FOR YOU FELLAS?

[myuserid]

HOW'S THE PACT ACT WORKING OUT FOR YOU FELLAS?

About as well as all that "Hope" and "Change".

[LaZeR]

HOW'S THE PACT ACT WORKING OUT FOR YOU FELLAS?

Joe see's your photo post there, he's gonna start rubbing one out all up in this place.

[xhepera]

I'm curious as to why no one wants to blame their representatives and senators (Democrat and Republican) who actually crafted that piece of crap at the behest of their corporate lobbyist puppet-masters, and wants to blame it on Obama. Like he was going to even dare veto a law approved by 100% of one house and 90% of the other. I mean, I know he personally laid the depth charge that caused the Deepwater Horizon explosion, incited the riots in Toronto, and will be Patient Zero in the next global flu pandemic. . .but c'mon.

[xhepera]

I could care less about having to pay taxes on my snus... it's the goddamn fact that I can't get my snus delivered to my mailbox by the postal service that soils my bed. This is bullshit. How am I going to guarantee I can be at home when the UPS delivers to sign some stupid paper when I work 75% of the time? And even then, I bet they won't even enforce that. They'll probably leave it on my damn doorstep to be stolen. Because UPS sucks. This is such a crock of shit.

Yep. . .I ordered from GetSnus and Northerner screwed up the shipping address (among other things). I thought I'd get home to one of UPS's love notes but no they hadn't delivered yet. When the doorbell rang, I raced for the door and opened it to find my package of snus (badly packed and warm from being in the damned truck all day) sitting there and the driver climbing back into his truck. I also got a package from Toque Snuff yesterday. . .via U.S. Mail.

[sgreger1]

I'm curious as to why no one wants to blame their representatives and senators (Democrat and Republican) who actually crafted that piece of crap at the behest of their corporate lobbyist puppet-masters, and wants to blame it on Obama. Like he was going to even dare veto a law approved by 100% of one house and 90% of the other. I mean, I know he personally laid the depth charge that caused the Deepwater Horizon explosion, incited the riots in Toronto, and will be Patient Zero in the next global flu pandemic. . .but c'mon.

Lol, I don't blame him that much because he has a lot on the table right now and for him to open up yet another discussion about why he doesn't think tobacco is bad would just be too much. He's already gaggle****ed trying to fundamentally change the nation in his first term so I can see why he is choosing his battles the way he is.