Overview in the sources
The Volstead Act enters The Bob Zadek Show as a reference point rather than a topic in its own right. Across the excerpts it is named in connection with three distinct arguments: the case for drug legalization, the case for immigration amnesty, and the constitutional limits on federal power over the states. In each instance the Act serves as a historical precedent whose lessons the host or guest applies to a present controversy.
Drug prohibition and the repeal analogy
In the 2009 episode on drug legalization, Bob Zadek frames the hour around a basic question — why drugs should be illegal at all — and answers that the fact something is bad for you is not grounds to make it illegal. He argues that people should be allowed to engage in any behavior they wish so long as it does not materially harm somebody else, and that the right to swing one’s fist stops where somebody else’s nose starts. Legalize drugs. (2009)
Zadek then turns to history, asking how mood-altering drugs came to be illegal and whether the process mirrors the criminalization of the sale of alcohol. He asks whether we are living through Prohibition 2, states that Prohibition 1 was a failure, and says “we repealed that, the Volstead Act.” He poses the question of whether the country is going through the same process with drugs, marijuana, and mood-altering drugs. Legalize drugs. (2009)
The excerpt also shows Zadek attacking the nanny-state rationale directly, citing Mayor Bloomberg’s move to make trans fats illegal to sell in restaurants in New York City as an example of government intruding into personal decisions. He distinguishes behavior that harms others, which can be outlawed, from behavior that harms only oneself, which he says people are allowed to choose. Legalize drugs. (2009)
Amnesty and the repeal of Prohibition
The Volstead Act returns in two later episodes as an analogy for amnesty. In the 2013 episode with Judge Jim Gray, Zadek argues that amnesty is a positive goal, comparing it to tax amnesty programs in which authorities tell tax dodgers to come forward, confess, pay back taxes, and avoid jail, fines, penalties, late charges and interest. He then invokes Prohibition: during Prohibition there were many lawbreakers and felons who sold alcohol, and when Prohibition was repealed, anyone who had violated the Volstead Act was not prosecuted even though what they did was then a crime. He calls this de facto amnesty and concludes that amnesty is a good thing. We Are All Libertarians (2013)
In the 2018 episode with Mitch Jeserich, Zadek makes the same argument in fuller form. He says amnesty is a sensible, humane governmental policy and asks listeners having a negative reaction to consider Prohibition, when there were an awful lot of people who were felons. He refers to the 19th Amendment that repeals Prohibition, notes that it became legal, and observes that nobody in the country felt the previously convicted should continue to be prosecuted. He states that amnesty made sense because the crime was a non-crime in the eyes of most people. ICE in the Age of Trump (2018)
Jeserich, for his part, says his biggest bullet point is that he would give amnesty to the people who are here now, that amnesty has become a really bad word but was used freely by Ronald Reagan in the 1980s, and that these are neighbors, friends and co-workers. ICE in the Age of Trump (2018)
Enforcement and the anti-commandeering principle
The 2018 episode also uses Prohibition to explain a structural problem of federal enforcement. Zadek, describing himself as a con-law junkie, raises the question of whether a state or local government can be compelled to assist the federal government, and says the answer is probably not, invoking the principle of commandeering — that the federal government cannot order state and local governments to enforce federal law. ICE in the Age of Trump (2018)
He explains that the issue arose during the era of Prohibition, when the federal government enacted the “incredibly unpopular Volstead Act,” which basically made it illegal to manufacture and to sell alcohol. Because there was no federal police force, the federal government could not enforce a federal crime nationwide without getting the states to help, and the states were not all that willing. Enforcement was very spotty, and Zadek notes that the Feds could not put together enough of a federal police force because it did not exist, so enforcement became absurd. He draws the parallel to federal immigration policy, which requires boots on the ground, and to California’s refusal to help, framing the question as one that may be tested in the Supreme Court. ICE in the Age of Trump (2018)
Across episodes: the Act as recurring analogy
The Volstead Act appears in three episodes spanning 2009 to 2018, and the treatment shifts with the subject at hand rather than developing as a single argument. In 2009 Zadek uses it to ask whether drug prohibition is Prohibition 2, treating repeal as evidence that a failed criminal regime can be abandoned. In 2013 and again in 2018 he uses the same repeal to argue that amnesty for immigration lawbreakers is neither novel nor unjust, with the 2018 treatment adding the tax-amnesty parallel and the observation that the repealed conduct became a non-crime in most people’s eyes. In 2018 the Act also serves a different function entirely, as the historical setting for the anti-commandeering principle and the enforcement problem created by the absence of a federal police force. The later episodes do not revise the earlier framing so much as extend the analogy to new policy domains.
What the sources do not cover
The excerpts do not state when the Volstead Act was enacted, what its formal title or sponsoring legislator was, or which amendment to the Constitution it implemented or depended upon. They do not describe its provisions beyond the prohibition of manufacturing and selling alcohol, nor its penalties, exemptions or later amendment. The excerpts also do not identify the amendment that repealed Prohibition by number in the 2013 episode, and the 2018 reference to the 19th Amendment is given as the speaker’s own statement. No case name, holding or court decision on the Act appears in the sources.