Pubdate: Thu, 05 Sep 2013
Source: Wall Street Journal (US)
Copyright: 2013 Dow Jones & Company, Inc.


The President Decides Not to Enforce Another Law He Doesn't Like.

One irony of the Syria debate is that President Obama is now 
appealing for support on foreign policy from a Congress that he 
treats with contempt on domestic issues. Witness, in merely the 
latest example, his decision to suspend the enforcement of a federal 
drug law because it doesn't fit his political agenda.

In a sweeping memorandum last week, the Justice Department all but 
ordered U.S. attorneys nationwide not to enforce federal marijuana 
laws. The memo was a long-delayed response to voter referenda last 
November in Colorado and Washington states that legalized adult 
recreational use of marijuana, not merely in the usual fake "medical" context.

There's just one problem: All states are explicitly barred from 
regulating the possession, use, distribution and sale of pot and 
narcotics under the federal Controlled Substances Act of 1970. Like 
it or not, Congress declared marijuana to be a dangerous drug that 
should be banned.

California argued a decade ago that its medical marijuana law let 
individuals grow their own for personal use, but the Supreme Court 
ruled in Gonzales v. Raich in 2005 that federal law had supremacy. 
Defenders of ObamaCare even used the Raich precedent to claim that 
the feds could force all Americans to buy health insurance.

Now Attorney General Eric Holder says never mind all that, and 
Americans should mellow out about such legal nuances. Justice's 
four-page memo is dressed up in the language of enforcement 
priorities and "limited resources," but as a practical matter it 
means no prosecutor who cares about his career-which is to say all of 
them-will bring another marijuana case.

Justice warns that it will intervene if it discovers that marijuana 
is flowing to children or being trafficked to states where it is 
still illegal, though under federal law it is still illegal in all 
states. The memo tells prosecutors to ignore even "large-scale, 
for-profit enterprises," which are usually targets for taxation.

Prosecutorial resources aren't unlimited, and some crimes deserve 
more enforcement attention than others. But prosecutorial discretion 
is also not unlimited. A President can't simply make a blanket 
declaration that he won't enforce part or all of a law he doesn't 
like. He and the AG are effectively decriminalizing an entire class 
of narcotics crimes, rewriting a law passed by Congress. Imagine if a 
President decided to decriminalize securities fraud simply by 
decreeing that the government will devote no resources to prosecuting 
securities fraud.

Even liberal Members of Congress seem to understand this, because 
after the November referenda Democrats introduced legislation to 
exempt Colorado and Washington states from federal marijuana law. 
Under the Constitution Congress can't pass laws that apply in some 
states and not others. But at least Colorado Rep. Diana DeGette and 
her co-sponsors were being honest about the reach of the federal drug statute.

That's more than you can say about Messrs. Obama and Holder, who have 
been happy to cite federal supremacy against state laws they don't 
like. Justice sued to overturn Arizona's immigration enforcement law 
in 2010, and it is now suing Texas over voter IDs and even, for 
heaven's sake, Louisiana for letting minority children get a voucher 
to attend private schools.

As in those cases, the Administration's motivation on marijuana is 
politics, not the law. The politics of pot is changing, but more 
rapidly in Democratic-leaning states than across the country. It may 
be that a majority of Americans would favor decriminalizing the 
individual possession of small amounts of marijuana, but then 
Congress ought to debate and vote on it.

Mr. Obama could lead that debate, or at least offer his view, but he 
knows that the politics of drug legalization is still tricky and 
there could be a backlash in states with hot Senate races next year. 
Yet he also doesn't want to offend his pot-loving liberal base. So 
his political default is simply to declare he won't enforce current 
federal law.

Not since Nixon have we seen a Presidency so disdainful of the law, 
but at least Nixon had enough respect for legal appearances to break 
the law on the sly. This Administration simply declares it won't 
enforce the laws it doesn't like and calls it virtue. The media then 
give this a pass because Mr. Obama's decisions mesh with their own 
policy preferences.

Don't be surprised if millions of Americans begin to follow the 
President's example and conclude that they also don't have to follow 
laws they don't like-and not merely smoking reefer on the front porch.
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MAP posted-by: Jay Bergstrom