There is an interesting development on drug policy that will pose an interesting conundrum for some of the advocates of states’ rights. What is the states’ rights movement?
States’ rights in U.S. politics and constitutional law refers to the rights and political powers that U.S. states possess in relation to the federal government, as guaranteed by the Tenth Amendment of the Bill of Rights. . . . “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.”
The states’ rights movement takes a strict interpretation of the words “delegated to the United States.” Unless the Constitution specifically mentions a subject, then it must be assumed to belong to the states. Some among states’ rights advocates hold this so strongly that they will make no allowance whatsoever for new technologies or new circumstances that did not exist at the time of the drafting of the amendment, etc. For instance, some will interpret the interstate commerce clause to mean that the FDA is acting illegaly when they regulate foodstuff that is only destined to be sold within the state of its manufacture.
Well, the advocates of states’ rights have a victory and a conundrum for some of them. According to the Associated Press:
Pot-smoking patients or their sanctioned suppliers should not be targeted for federal prosecution in states that allow medical marijuana, check this site out to learn about how the prosecutors were told Monday in a new policy memo issued by the Justice Department.
Under the policy spelled out in a three-page legal memo, federal prosecutors are being told it is not a good use of their time to arrest people who use or provide medical marijuana in strict compliance with state law.
The guidelines issued by the department do, however, make it clear that federal agents will go after people whose marijuana distribution goes beyond what is permitted under state law or use medical marijuana as a cover for other crimes.
The memo advises prosecutors they “should not focus federal resources in your states on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.”
The new policy is a significant departure from the Bush administration, which insisted it would continue to enforce federal anti-pot laws regardless of state codes.
President Obama has given a significant victory to states’ rights advocates and a conundrum for some. Many states’ rights advocates are also very conservative. As a result, they are against changes in drug policy. They view pot smoking, whether for medical reasons or not, to be immoral and not to be tolerated.
So, on the one hand, there is now a formal recognition by the Federal government that there are times when Federal law needs to take a rear seat to the rights of the states. That is, if the state does not address the situation, then Federal law applies. But, if the state addresses the situation, then state law takes precedence. This has been the aim of the states’ right movement since well back into the 19th century.
But, on the other hand, this means that a states’ right advocate may need to recognize that it is completely legal under the Constitution for a neighboring state to allow for medical marijuana, if that is the democratic choice of its citizens as represented by their legislature. So, Father Orthoduck doubts that many of those who are against medical marijuana will cheer President Obama for backing their states’ rights arguments on this point.
This really is the purview of Congress. The President is the head of the Executive branch. As such, except when exercising a veto, he doesn't get to decide which laws he likes and which ones he doesn't.I'm very much of the opinion that each state should be ruling on this issue themselves (and the Constitution says as much), but I'm not pleased with an Executive that just decides not to enforce certain laws. That's effectively a co-opting of the Legislative branch's power. The Executive has been getting way too bloated for decades now, and this is yet another expansion of its power.(I'm personally against drug use, but I'm also for legalization. Not everything that is immoral should also be illegal.)
Of course, the easy counter argument is that even an Executive must make choices. An amendment to the Constitution ranks higher than a federal law. Thus, President Obama's decision fits easily within states' rights doctrines in that the President is indeed charged with enforcing the laws, but in their correct order of precedence. That is why we have an Attorney General, precisely to interpret the laws and how they are to be enforced. The courts can always rule that he is not enforcing them in their correct order of precedence or is misinterpreting them, but until they do, the Congress passes the laws, and the Executive branch makes decisions on their order of precedence and their enforcement. That is why it is a check and balance system.And, truth to tell, many of our laws have clauses that may contradict each other. Every local policeman can tell you that. Which brings up my second counter-argument. Every locality has laws that are on the books that are not actively enforced and have not been for decades. And, we do not even want our mayors and policemen to enforce them! In fact, news stories regularly run lambasting policemen and prosecuting attorneys who enforce the letter of the law without any interpretation. Soooo, by your argument, every State in the Union is filled with executives and policemen that are violating the law and democracy and co-opting the legislative power by not enforcing every law exactly as written without any interpretation.But, in fact, we do not run simply by written law, but by common law, and once in a while even by common sense. And in common law there is enshrined the principle that laws that are either unenforceable or cease to be enforced eventually cease to be enforceable. And, also enshrined there in case after case after case is that policemen and prosecuting attorneys have discretion in how exactly to enforce a law and when to charge someone. So, a states' right person would argue that President Obama has not taken on any additional powers but has actually given back powers that President Bush was misusing inappropriately and has finally begun to correctly use his common law discretion by enforcing federal law–in this area–only in those parts that do not put the federal law in conflict with the Tenth Amendment to the USA Constitution.
Of course, the easy counter argument is that even an Executive must make choices. An amendment to the Constitution ranks higher than a federal law. Thus, President Obama's decision fits easily within states' rights doctrines in that the President is indeed charged with enforcing the laws, but in their correct order of precedence. That is why we have an Attorney General, precisely to interpret the laws and how they are to be enforced. The courts can always rule that he is not enforcing them in their correct order of precedence or is misinterpreting them, but until they do, the Congress passes the laws, and the Executive branch makes decisions on their order of precedence and their enforcement. That is why it is a check and balance system.And, truth to tell, many of our laws have clauses that may contradict each other. Every local policeman can tell you that. Which brings up my second counter-argument. Every locality has laws that are on the books that are not actively enforced and have not been for decades. And, we do not even want our mayors and policemen to enforce them! In fact, news stories regularly run lambasting policemen and prosecuting attorneys who enforce the letter of the law without any interpretation. Soooo, by your argument, every State in the Union is filled with executives and policemen that are violating the law and democracy and co-opting the legislative power by not enforcing every law exactly as written without any interpretation.But, in fact, we do not run simply by written law, but by common law, and once in a while even by common sense. And in common law there is enshrined the principle that laws that are either unenforceable or cease to be enforced eventually cease to be enforceable. And, also enshrined there in case after case after case is that policemen and prosecuting attorneys have discretion in how exactly to enforce a law and when to charge someone. So, a states' right person would argue that President Obama has not taken on any additional powers but has actually given back powers that President Bush was misusing inappropriately and has finally begun to correctly use his common law discretion by enforcing federal law–in this area–only in those parts that do not put the federal law in conflict with the Tenth Amendment to the USA Constitution.
Somehow, I don't think that our President is a Constitutionalist interested in backing states' rights. If he were, well… one doesn't have to think too far.As for the enforcement of laws on the books: What is at issue here is not some sort of blue law or a no-handstands-in-Hartford-CT kind of thing. Rather, this is a fairly central issue that the Executive branch is simply choosing to ignore the Legislative one on. Mind you, I think the Legislative is wrong on this, but it's not up to the Executive simply to decide not to enforce something, especially not something of this kind of magnitude. It's not checking and balancing if one branch simply ignores the other on something this big. It's a massive power-grab, making policy on something that isn't the Executive's business.This isn't a question of how to enforce a law or simply of interpreting it but rather of negating the law entirely. It's a sweeping policy decision that retroactively vetoes a congressional decision. This is characteristic of this administration, though, which prefers to govern with the so-called "czars," stacking more and more power into the Executive.In any event, it's not sustainable. Eventually, the Chinese will stop buying our dollars. This will probably happen sooner rather than later.(End the Fed!)
A house divided against itself cannot stand. Some conundrums tickle my funny bone.