P.S. The blonde on that show who owns the store on the 16th Street Mall is really hot.
Pretty much everything you’ve said here is wrong and can be disproven by a quick google search.
Articles on Colorado have talked about the continued existence of the black market because of tax and price issues. How people grow their allotted 6 plants - and often many more - and sell it privately. How most of the pot sold in many of the retail stores is to people from out of state.
And they don’t need a warrant to search your car. Probable cause can be invented on need and they also nail a lot of people who ‘volunteer’ to have their car searched, usually after a ton of threats about making them wait for K9 units, seizing their vehicles if they don’t cooperate, or just ‘screw you, I’m searching your car and it is your word against mine’.
“Disproven” and “Quick Google search” don’t go together.
Unless you’re some kind of horticultural wizard, your backyard pot is going to suck compared to that legally grown in greenhouses. Your market is going to be college and High School students. Nobody with an actual job or income is going to risk buying illegal pot when you can get better quality stuff perfectly legally.
Pot being sold to out of state purchasers (one ounce at a time) means nothing. They come in for a weekend or a ski trip and get stoned, but that doesn’t mean they bring it all home. They smoke it here. There are plane and bus tour companies that bring in out-of-staters all the time. The one thing that they absolutely do not tolerate is their customers carrying pot back across state lines. They will lose their livelyhood if they allow that.
Seriously, we all need to stop thinking about that whole “probable cause” and “unreasonable search” bullshit, because it doesn’t exist anymore. Cite.
Not asking about the merits of the two claims.
Asking about the choice of the AG to decline to defend his state’s law.
That’s not what your cite says.
I want the police, the prosecutors, the judiciary, jurors (via nullification) and the executive branch to have discretion to pursue/not pursue issues that arise before them. It adds a human element to the law.
I recognize that that power may be invoked for reasons I disagree with (or not invoked when I think it should), but overall it is my opinion that the overall ‘justice’ in the resulting society is better off with it than with the alternative–an extremely rigid system of laws.
I also recognize that this enables the potential for injustice to enter the system. For example, I am sure that my socioeconomic status has let me get away with things that would have put others in jail. It’s not a zero-sum game, but the effect and pattern thereof has added to general racial tensions.
Lastly, I don’t know where the line is in terms of who this discretion extends to. Should a clerk in a data processing office bureaucratically negate tickets that come across his desk because he doesn’t think the speed limit should be so low in that area?
The best I can hope for in terms of minimizing the harms of discretion is a series of checks/balances that would limit its application in areas that would further injustice, and a series of checks and balances that would limit its invocation in far-reaching cases.
In the latter, I would hope that someone who made it to Attorney General would have had his or her views and proclivities sufficiently vetted before that point, and that the choice to not defend the law would cause such a reaction that the decision would not be taken lightly. The prospect of excoriation in the press and loss of electoral position/stature may be sufficient to put off such a decision. COurts also may have a check in place to allow other standing to defend the law, but there I’m out of my element.
Suffice as to say that discretion is a very powerful tool, particularly at that level. I nonetheless support its existence and can only hope that there are sufficient checks and balances in place to yield an overall more just, albeit imperfect, society.
Actually, the real issue is that his pragmatic allocation of resources might lead him to conclude “This lawsuit can have no possible negative outcome, since the court clearly cannot grant the desired relief (Colorado changing its law), so defending it is as pointless as building a planetary defense against an invasion of Martian tripods.”
Fortunately for you, reality enforces your policy preference in this matter, as it simply is not possible to enforce the law on every occasion where it is violated.
Okay. My preference would be for an AG to defend.
But as a practical matter, we can’t force an AG to write briefs if he or she doesn’t want to. All you can do is come up with an alternate route if the AG refuses to defend, and every jurisdiction that I’m familiar with has alternate routes.
In Prop 8, from what I remember, nobody wanted to defend. The governor refused, the legislature refused, and I don’t recall any conservative legislators banding together to defend (they certainly would have been given standing by the district court if they tried).
You could, of course, have penalties for an AG who refuses to defend. In most jurisdictions that’s going to be impeachment or the ballot box.
As a voter, I wouldn’t penalize an elected official solely for refusing to defend a particular law or refusing to impeach, because there’s a whole bunch of issues I weigh when deciding who to vote for.
Your recollections are not accurate.
I agree. But my question is: if the Colorado AG here refused, would that same sanguine acceptance of a ballot box remedy apply?
Oh, I don’t think so. My language was a bit vague and hyperbolic, though, so I’ll cut you some slack here.
Let’s say I choose not to be sanguine about it. Exactly what would happen then? It’s pretty irrelevant how sanguine or not I am about it, since I’m not the one who set up this type of system.
I feel we’re getting off-track here from the point I think that you’re trying to make, Bricker, so let’s take a step back.
I’m of the view that all 3 branches get to interpret the Constitution (and that’s not an unheard of view). The judiciary, of course, gets final say on interpretation (in most cases), but that doesn’t mean they get the only say.
Additionally, states get to interpret the US Constitution as well. So, the state executive and legislature get to interpret the US Constitution. The state judiciary gets more say than the state executive and legislature, and, of course, the Federal judiciary gets the final say on interpretation.
So, let’s take a hypothetical state AG who’s faced with both a Prop 8 scenario and a Colorado pot scenario. Well, as far as I’m concerned, there’s nothing hypocritical about reading the Federal EP clause broadly while reading the Federal IC clause narrowly. If he wants to interpret the US Constitution that way, there’s nothing hypocritical, and he’s allowed to use his interpretations to guide what he’s doing as part of the executive branch.
So, our AG has made a decision that there’s no need to defend his Prop 8 because its unconstitutional, and that he should defend the pot system because its constitutional. I don’t really see anything hypocritical or inconsistent about that.
From a procedural standpoint, it’s fair to ask whether an AG should have that type of discretion. But, I didn’t set up this system, and as I stated earlier, my preference would be for an AG to defend in all cases. But there’s nothing hypocritical about thinking an AG shouldn’t waste his time on issues he believes to be unconstitutional, or that an AG shouldn’t use state resources on issues that he thinks are unconstitutional. And to extend that to me as a citizen, there would be nothing hypocritical about me thinking that an AG shouldn’t waste time on something that I think is unconstitutional.
But trying to constrain this to legal theory is pretty pointless, since the AG is an elected office in most states. And since the AG is an elected office, that means he is going to make political calculations as well. And, I, as a voter, am free to take political calculations into consideration when voting for the AG. For me personally, even though I think the AG should defend in all cases, from a political perspective, I don’t care that the AG didn’t defend in Prop 8. I’m far more upset about my current AG’s signing of the 50-state mortgage settlement which let a bunch of fraudulent behavior off the hook. Does that make me a hypocrite because the mortgage settlement affected the way I donate and vote while Prop 8 didn’t? I don’t see how. And since I don’t really care either way about legalized pot, I’m not inclined to care one way or another if an AG chooses to defend about pot.
This sort of discretion is built into the system. If someone wants to push a Constitutional Amendment in CA to remove it, I’ll take a look. But given that the discretion is built-in, and given that AG is usually a political office, I’m free to support or not support AG actions based on my own political or legal theory beliefs without being inconsistent.
But, if I was walking around claiming that the IC clause should be read broadly and then throwing a tantrum when an AG refused to defend a pot law, you’d have me at hypocrisy. But since I read Wickard broadly, I don’t think the pot law passes constitutional muster, so I would be completely okay with an AG not defending it, even though I’m okay with legalized pot.
It was, I got this from the Oklahoma AG’s web page. It hinges on, from what I scanned, a Supremacy Clause violation by CO.
It seeks Declaratory Relief and an Enjoining Prayer for relief and also LEAVE to file a complaint.
[QUOTE=iamthewalrus]
Do states have any duty to enforce federal laws?
I’m guessing that they have to help out in specific ways if federal law enforcement requests it, but do they actually have to figure out how to enforce them in general on their own?
[/QUOTE]
They have no DUTY to enforce, but Court’s have ruled they have the Power too if they wish.
Oh, I see KAYAKER already posted a link to the Suit! As Gilda Radner said “Nevermind”.
Unfortunately those checks and balances do not exist which grants far too much power to those tasked with enforcing our laws.
Consider what happened (or rather didn’t happen) to HSBC for laundering drug and terrorist money.
On the flip side prosecutors chose to hound Aaron Swartz to the point he committed suicide despite the victims in the case not wanting to peruse the matter.
There are plenty of other examples.
I am not saying there shouldn’t be some discretion allowed (there should be). We just need some of those checks and balances you speak of.
Of course the answer should be:
California should be allowed to abandon its defense of Prop 8 because its an objectively bad law, and Colorado should be forced to defend marijuana because its not objectively bad. There’s no gotcha here or equivalency: you treat different things differently based on the criteria
I’m just spitballing here, but I would say no. Absent a federal law, nothing suggests that a particular drinking age or a particular fireworks law is better than the other. If fireworks that are legal in one state happen to cross state lines into the other, then it is the duty of the more restrictive state to enforce its laws. I think the public policy of federalism should disallow these types of suits.
In the marijuana example, federal law sets a baseline that pretty definitively claims that the state that allows it is doing Something Bad. This federal law (regardless of states rights people like me who disagree with the decision) has been upheld in Raich as being constitutional. When you have a valid federal law that says marijuana is illegal, and it is within the power of the federal government to outlaw it, I don’t believe it is the same as allowing 18 year olds to drink or citizens to purchase fireworks: both legitimate exercises of state power.
I know this wasn’t addressed to me, but:
IMHO, it is the duty of a state AG to defend his state’s laws unless the law is so patently absurd that he would violate the legal canons of ethics by defending it.
I believe that the AG represents the people of the state, either through their legislature, or through their direct vote at the ballot box. It’s not his job to substitute his personal judgment for theirs, no matter if the issue is marijuana or SSM.
That is the theory, but in actual practice state AGs are influenced by politics and will overrule the will of the voters.
There have been several instances over the past few years where the state AG has refused to follow the voters and uphold a new law. Particularly in the same sex marriage issue that has been playing out among the individual states.
The cites are too numerous to quote, but here are a few:
And in gun laws:
The state Attorney General is an elected office, not a servant to the voter’s will. They uphold the laws that suit their personal politics and will put other issues on the back burner or refuse to pick them up at all.