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Dispensing with the Constitution

Obama’s executive caprice.

Jan 14, 2013, Vol. 18, No. 17 • By BRETT TALLEY
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We are in the midst of a crisis of federalism and we don’t even know it. In November, the states of Colorado and Washington legalized recreational marijuana use, while 16 other states and Washington, D.C., already permitted the medical use of marijuana. Yet at the same time, the Controlled Substances Act of 1970 prohibits the cultivation, sale, and use of marijuana in all its forms. State and federal law are at odds.

The US Constitution

The Constitution is plain: Federal law is the “supreme law of the land” (Article VI, section 2). And yet our national history is replete with conflicts between the laws of the states and those of the federal government. We’ve seen this scenario play out before, in episodes that have left deep marks on our history, from the Virginia and Kentucky Resolutions opposing the Alien and Sedition Acts to the Nullification Crisis of 1832 to the Massive Resistance of Southern states against federal efforts to end segregation. In the modern era, the ordinary course of affairs would see such conflicts resolved by the courts, usually with federal law prevailing.

But when it comes to marijuana, we are not witnessing the ordinary course of affairs. The federal government seems to be letting the states go their own way.

In an interview with Barbara Walters, President Obama explained that he has “bigger fish to fry” than enforcing our nation’s marijuana laws, noting that countering Colorado’s and Washington’s defiance is not a “top priority” for his administration. This is a particularly “tough problem,” he said, because as the head of the executive branch, he’s “supposed to be carrying out the laws.”

The president is certainly right about that. Enforcing the law is, together with serving as commander in chief, the heart of his responsibility. Our entire constitutional order is built upon the proposition that the president is not the promulgator of law but its chief enforcer. Up until 1688, English kings retained the authority to disregard the laws, called the “dispensing power.” The Glorious Revolution brought such caprice to an end, compelling the king to abide by the will of Parliament. That fundamental limitation on the power of the executive carried over to the 13 colonies. It is one of the hard-won victories in the struggle for liberty conducted by English-speaking people over centuries.

It was Alexander Hamilton, writing in Federalist 69, who explained that an American president must “take care that the laws be faithfully executed.” The “take care” clause in the Constitution that he was defending is a cornerstone of the Founders’ vision of limited and divided government. It was one of the many bulwarks against tyranny that were built into the remarkable structure that has ensured our freedom over the past two-and-a-half centuries. In that structure, a president may only refuse to enforce a law if it is plainly unconstitutional, a power that is as antique as it is rarely employed.

As the nation’s chief law enforcement officer, the president may also exercise discretion in declining to prosecute in certain cases. Traditionally, that discretion has been exercised on an individual basis after investigation reveals that prosecution would be a waste of resources. For example, Attorney General Eric Holder was well within his rights when he declined, on more than a dozen occasions, to bring charges against American corporations under the Foreign Corrupt Practices Act despite evidence that the law had been broken.

It is this same prosecutorial discretion that President Obama seems to be relying on with respect to enforcing federal marijuana laws. This is not the first time that President Obama has exercised discretion in this sweeping way. Last June, he announced that he would no longer enforce federal immigration law against 800,000 young people—the so-called Dreamers—brought illegally to this country as children by their parents.

One can sympathize, as I do, with the hapless children who are victims of our broken immigration system, just as one can sympathize, as I also do, with advocates of decriminalizing marijuana. But the substance of these policy choices is beside the point. In fact, general public sympathy for the president’s positions on these two controversies obscures a shift in our constitutional order that is as profound as it is dangerous.

The question raised by President Obama’s actions is: Where does the power to dispense with inconvenient or unpopular laws end? If an American president can simply decide not to enforce the laws proscribing the sale or use of marijuana, can he do so for other prohibited substances? Can he ignore the federal laws that define marriage as between a man and a woman? Can he ignore laws that prohibit the use of quotas in employment? The possibilities are endless. And they could also run in another direction entirely.

What is to stop a future pro-gun administration from deciding not to enforce statutes designed to punish felons who possess firearms, as some extreme partisans of the Second Amendment recommend? Could a future Republican president decline to prosecute whole classes of tax dodgers, effectively repealing certain revenue statutes? 

The problem can also be flipped around in yet another way. More than a dozen states have passed legislation repudiating Obamacare. Much like Colorado and Washington in the marijuana instance, they have put their state laws into conflict with federal laws. It is obvious that President Obama is not going to allow those states to defy Washington. To do so would gut his signature legislation. This time, it will be convenient for the president to assert his power as our chief law enforcement officer.

It is fascinating to recall that in defending Obamacare before the Supreme Court, the Obama Justice Department likened the federal power to coerce states into observing national health regulations to the federal power to coerce states into observing federal drug laws. Administration lawyers quoted chapter and verse from Gonzales v. Raich, which in 2005 had kept the state of California from going its own way in defiance of the Bush administration and the federal Controlled Substances Act.

Thus, in defending Obamacare while ignoring the Controlled Substances Act, the Obama administration wants to have it both ways. Upholding federal law, it tramples on the aspirations of states in some instances. Ignoring federal law, it facilitates the aspirations of states in other instances. This is the very definition of arbitrary government.

President Obama is an innovator in this respect, but we have been on the path to such arbitrary government for some time. His actions are the logical extension of a dolorous trend in our politics that has been growing for much of the postwar era. They are anchored in an ends-oriented, rule-by-enlightened-fiat theory that lies at the core of modern liberalism. That theory has already played out to a considerable degree in our judiciary, where jurists have espoused the doctrine of “living constitutionalism” and “substantive statutory interpretation,” which starts with favored results and reasons backward, finding “penumbras” and “emanations” in the Constitution to justify its predetermined conclusions. 

President Obama, who studied at the feet of some of the most prominent expositors of this theory at Harvard Law School—Laurence Tribe, Martha Minow, and Charles Ogletree, to name but a few—has simply taken it to the next logical step. Where in the past we had judicial disregard of the Constitution and laws duly passed by Congress, now we have executive disregard of the same.

Adding insult to injury is the deafening silence from liberals that has greeted President Obama’s executive caprice. It was only a short while ago that these same liberals were denouncing George W. Bush for a far less serious constitutional transgression. Thus, when President Bush had the temerity to add signing statements to laws that he found disagreeable, thereby clarifying his understanding of their provisions, he was greeted by howls of protest from liberal jurists. Indeed, it is ironic to recall that an American Bar Association task force in 2006 grimly lectured that the “president’s constitutional duty is to enforce laws he has signed into being unless and until they are held unconstitutional by the Supreme Court or a subordinate tribunal.”

What a difference a change in political party means when it comes to outrage. Where are the howls of protest now?

The difficult work of campaigning for change, of persuading voters and legislators of the wisdom of one’s ideas, has been replaced by executive fiat. The president, when challenged, has defended his use of discretion by declaring—as he did in the case of immigration—that it was “the right thing to do.” Whatever the merits and demerits of his policy choices, concentrating so much power in the hands of one man is antithetical to our system of checks and balances and the dispersal of power that it is supposed to ensure. Have we reached another way station on the road to becoming a government not of laws but of men?

Brett Talley is a lawyer, author, and former writer for the Romney for President campaign.

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