Could Obama legalize recreational marijuana use via Executive Order?

Well?

No.

At best, he could direct the DEA to ignore (aka: “assign lowest priority to”) it.

Which wouldn’t change anything at the local level.

Executive Orders do not create new law. They interpret existing law.

Presumably he could ask Democratic Governors to do the same thing at the state level. Assign priorities elsewhere, don’t waste your time. This is essentially the case in some states of Australia. In NSW recreational marijuana is almost never prosecuted. In theory for under 15 grams its a $50 fine but I’ve never even heard of that being applied. Usually people just get it confiscated and a warning if they’re in public, or it would be outright ignored if found in a private home.

The states are ahead of the feds on this one. Seems pointless for him to do anything. To some degree he’s done what he can already by not siccing the DEA on the states that are allowing it.

Lots of states and municipalities have already done this, most even before some states started decriminalizing marijuana.

That’s the theory, at least. The same could be said of Supreme Court rulings, but in the absence of Congress having a spine, both the executive and judicial branches have been pretty active in cranking out new law in recent years.

Got a single example of the SCOTUS creating new law?

Or the Executive branch?

There are other kinds of law besides statutory law. The courts create law through judicial precedent. The president creates law through executive orders and policy decisions. Executive agencies create law through regulations and the decisions of regulatory tribunals.

Heres one. Obama’s use of drone strikes: “targeted killing”. The legal status of this is murky at best. Rather than change the law to allow Assassinations by intelligence agencies he just declares it to not be an assassination by executive order.

Obergefell v. Hodges comes to mind. Whether you love or hate the idea of same-sex marriage, the fact remains that homosexuality was pretty much illegal everywhere when the 14th Amendment was ratified; it’s hard to imagine that the framers of that Amendment intended to establish a right to same-sex marriage.

Pertinent part of the 14th.

Actually, sexual orientation wasn’t a widespread concept in 1860s America. Sodomy was a recognized concept, but the framers of the amendment would not have been familiar with the idea that there is a class of people who are uniquely attracted to same-sex partners and not opposite sex partners from birth. It is difficult to know what they would have done with such a concept if they had all of the understanding we have in 2015. What we know for sure is that they believed that if two people are treated differently under the law, there needed to be a good reason.

In theory, any county sheriff or prosecutor can “legalize” anything, simply by refusing to enforce the law and arrest and/or prosecute offenders within their jurisdiction… This would be an executive act. This is not unknown . It was used in some states during the 55-mph speed limit days, when the police simply refused to ticket speeding drivers.

This is a good example of arguments driving past one another because the participants are defining words in different ways.

What is a law? Is it the statutory words in bills passed by legislatures? Or does it also include the precedents, interpretations, and regulations that are needed to determine the exact meaning of those statutes in particular situations, many never envisioned by the bill writers. Are the latter “new” laws or are they inherent in the laws themselves?

This makes a huge difference. If it’s the former, then the President and Supreme Court never issue any new laws. If it’s the latter, then a new law potentially emerges every time a judge bangs a gavel or an independent agency issues a ruling.

I’ve written here that in broad terms, the entire history of the Supreme Court in the 20th Century involves overthrowing older Supreme Court judgements. In some ways you can call all those decisions new law. But in many ways you can’t. The Constitution is a living thing, a general framework for statutory laws to build rooms in. Sometimes you redecorate; something you gut the place and start over.

Whichever path you take, a line like “but in the absence of Congress having a spine, both the executive and judicial branches have been pretty active in cranking out new law in recent years” is sheer ideological nonsense and ignores 200 years of actual history.

So what do you call George W Bush’s declaration that torture is legal and Obama’s declaration that Assassination is legal? In both cases laws are simply ignored as irrelevant by executive order. True the words of the laws haven’t changed, but the meaning of them, and the enforcement can be changed via executive order as long as a team of tame lawyers comes up with a legal justification.

Well, if Mr. Obama may wish to leave it as a wink and a promise to garner votes for Mrs. Clinton from the unengaged young and the druggies otherwise too stoned to reach the ballot-box.

This is GQ, I remind you. The only fair game is what the definitions are, not whatever you don’t like about any particular administration. And the options here are “never” and “always” and not “when I disagree.”