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 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.