It’s funny. In Gonzales v. Raich, one of the three dissenters was Clarence Thomas, a usually much-reviled name around here. As he put it, commenting on the absurdity of the Commerce Clause covering material grown and used completely inside a state’s borders: “…if the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives and potluck suppers throughout the 50 states.”
Absurd as the interpretation seems, it is the law of the law.
Equally true, however, is the fact that the courts cannot compel an executive to enforce a particular set of laws with vim and vigor.
Congress can pass stronger versions of the laws, and wait the four years for popular outrage at lack of enforcement to sweep the executive away.
And if that doesn’t happen, perhaps Congress was out of touch.
And what, aside from the President’s assumed truthfulness, distinguishes the two rationales in effect? The President is tasked with not violating the Constitution in enforcement of statutes, but “I believe this law is unconstitutional” could be nothing more than a PC(in its original meaning) version of “you’re a bunch of idiots.”
Blalron, the canonical remedy for a President who refuses to enforce statutes which pass Constitutional muster is impeachment and then removal from office for non-performance of his duties.
From a case where a judge disagreed with the U.S. Attorney’s decision not to prosecute, refused to dismiss the charges even though the prosecution asked for the dismissal, and tried to appoint a special prosecutor:
I love the giganta-splash on Drudge. Screaming green headline: HIGH TIMES: OBAMA TO ISSUE NEW MARIJUANA POLICY. Photo: Obama reading from a paper to a bunch of kids.
I don’t have a problem with prosecutorial discretion. There are a lot of laws that have fallen into that-word-which-means-disuse-through-nonprosecution-but-I-just-can’t-remeber-it-at-the-moment. As Obama is the head of the executive branch, his direction of discretion is in line with the same principle. Should he be enforcing every Federal law as much as possible? Irrespective of the Constitution, shouldn’t he direct the Justice Department’s priorities?
The one-step-at-a-time nature of the move has benefits as well. It creates space for states to act, but if it works out poorly (for some bizarre reason), it won’t take a reenactment by Congress to address things. (Note, this is a procedural/technical argument, not whether the law was/is good in the first place.)
That’s not quite what I was asking. I have conceded that there are times at which a crime may not be prosecuted for a variety of reasons: insufficient resources to prosecute, a belief that specific circumstances would make prosecution unfair or unwise, and so on. In other words, a case-by-case evaluation of whether something should be investigated or prosecuted.
Although I didn’t say it, those citations seem to indicate that a judge cannot compel a prosecutor to take up a particular case. I have no quarrel with that, as it seems to be a matter of opinion on whether a case involved wrongdoing, as opposed to a response to a policy not to enforce the law.
What I do have a disagreement with is that the Executive can simply decide not to prosecute a whole class of cases. I would point out 28 USC 547: “Except as otherwise provided by law, each United States attorney, within his district, shall—(1) prosecute for all offenses against the United States; …”
Obviously, it simply isn’t feasible to accomplish to the letter of the law. However, if the Executive decides not to apply the law to a whole set of activities as a blanket rule – or even in a wink wink nudge nudge sort of way – then it allows the executive to disregard the enforcement of laws at its convenience. If an Administration happens to like the coal industry, for example, should they be granted leeway not to apply the Clean Air Act to the worst polluters? That doesn’t seem fair at all.
Bricker has supplied ample cites. I’ll add one more:
Marbury v. Madison.
So it is clear that the executive possesses a certain degree of discretion, and this is not even reviewable by the judicial system as such - there is some immunity here. Only individuals who have had their rights violated by these decisions have the right to challenge them in court.
This seems a wise and proper shift in Federal law-enforcement policy, given the medical-marijuana laws of (now) 14 states, and the undoubted urgency of other priorities for the Justice Department. It is entirely within the President’s discretion, as exercised by the Attorney General. Congress may pass a law to the contrary and force the President’s hand on this issue, but I highly doubt it will.
What if he said something along the lines of “I believe this is a case in which there may be no universal approach, and different states should treat it as they see fit for now. Perhaps we will see which policy garners the best results in terms of alleviating human suffering and building the economy in a few years.”?
Good news, albeit tempered somewhat by the simultaneous announcement by an LA district attorney vowing to crack down on pot shops. Stoners just can’t catch a break!
Whats the purity problem? I suppose for weed lovers quality is subjective, isn’t it? I ask because in my shielded existence, I have never smoked anything. I hear dopers talk of different weeds like a wine lover distinguishing grades of wine. Isn’t that a good thing?
Some of the hydroponic stuff is grown with not very nice chemicals. There should be only organic pot allowed to be grown. And the government should set up a new Federal agency to encourage Americans to eat their pot instead, both for health and stone benefits. And another purity problem is with the new kinds of hash. In the last few years for a variety of reasons hash conoisseurs have moved from the old-school great hashes of the world like Nepalese Temple Balls, Mazar-I-Sharif Afghani and Kashmiri water hash to the newer bubblehashes and those things are so potent that it’s easy for unscrupulous dealers to mix in crap with them. There needs to be some kind of national purity standard and regulations so that government-certified high quality products are freely available to every consumer.
How about the government just set FDA standards of full-disclosure and allow people to decide what they want to put into their bodies? You know…freedom?
Personally I think they should drop the whole ridiculous ‘medical’ marijuana farce - It’s my understanding (and I apologize if I’m wrong, I don’t partake or live in California) it’s very easy to get a ‘prescription’ for ‘medical marijuana’ even if your only condition is wanting to smoke pot.
They should either legalize it completely and stop all this stupidity about selectively enforcing laws and ‘medical’ uses (yes it might have some, we all know that’s not REALLY the point) or actually enforce the laws and treat marijuana as any other illegal drug that has medical uses.
But if we’re going to continue to pretend that medical marijuana laws are actually about medical use of marijuana and not just a way to get high legally (a large percentage of prescriptions for medical marijauna are for reasons such as “anxiety”), then marijuana should be characterized like any other pharmaceutical, including measuring and standardizing the amounts of the active components.
I was thinking the food industry but yes, precisely. As long as there is information regarding what you are putting into your body available, that should be sufficient.
Who are ‘People buying drugs’? There seems to be an implicit judgment underlying your statement and before I go off and assume that you are dealing with an extremely broad set of people who share only one characteristic, I’d like for you to clarify how you view, ‘People buying drugs’.