Ted Cruz Faults Obama for Not Imposing Marijuana Prohibition on States That Have Rejected It

KVUEKVUELast Friday, as part of a broader attack on President Obama's "imperial" tendencies, Sen. Ted Cruz (R-Texas) criticized the Justice Department for indicating that it will not prosecute marijuana growers and sellers who comply with state law, provided they are properly regulated. Speaking at a Texas Public Policy Foundation conference in Austin, Cruz said this prosecutorial forbearance illustrates Obama's habit of ignoring the law when obeying it would prevent him from doing what he wants:

A whole lot of folks now are talking about legalizing pot....And you can make arguments on that issue. You can make reasonable arguments on that issue. The president earlier this past year announced the Department of Justice is going to stop prosecuting certain drug crimes. Didn’t change the law.

You can go to Congress. You can get a conversation. You could get Democrats and Republicans who would say, "We ought to change our drug policy in some way," and you could have a real conversation. You could have hearings. You could look at the problem. You could discuss commonsense changes that maybe should happen or shouldn't happen. This president didn't do that. He just said, "The laws say one thing"—and mind you, these are criminal laws; these are laws that say if you do X, Y, and Z, you will go to prison. The president announced, "No, you won't."

Contrary to the Raw Story headline, Cruz said nothing about "locking up marijuana users in Colorado." The federal government generally avoids penny-ante pot cases, and it has never made busting cannabis consumers a priority. Almost all such arrests are made by local police. But that very fact suggests something is wrong with Cruz's argument. Since possessing any amount of marijuana is prohibited by the Controlled Substances Act, did Obama's predecessors forsake their duty to uphold the law by focusing on big pot cases? Or were they exercising appropriate discretion in deciding how best to allocate federal law enforcement resources?

That is precisely what the Justice Department claims to be doing in connection with states that have legalized marijuana for medical or general use. In his August 29 memo outlining the policy, Deputy Attorney General James Cole said it is all about "using [the department's] limited investigative and prosecutorial resources to address the most significant threats in the most effective, consistent, and rational way." With that goal in mind, Cole said, U.S. attorneys should focus on cases that implicate "certain enforcement priorities," including preventing marijuana consumption by minors, diversion to to the interstate market, and drugged driving or "the exacerbation of other adverse public health consequences associated with marijuana use."

Contrary to Cruz's implication, the memo offers no guarantees. Federal prosecutors can decide to crack down on state-legal marijuana producers and retailers at any time for one of the reasons Cole mentions or for other reasons they make up on the fly. The memo closes with a warning that "nothing herein precludes investigation or prosecution, even in the absence of any one of the factors listed above, in particular circumstances where investigation and prosecution otherwise serves an important federal interest."

Cruz therefore is wrong to suggest that the administration has declared the Controlled Substances Act inoperative in states that have legalized marijuana. Nor does the policy described in the Cole memo violate that statute, which has never been enforced against every violator. In that respect Obama's grudging tolerance of marijuana legalization differs from, say, his decision to ignore certain provisions of the health care law he championed when they became inconvenient—another, more apposite example of lawless presidential action cited by Cruz.

Speaking of Obamacare, it is rather strange to see one of its leading opponents argue that the president should seek to scuttle marijuana legalization in Colorado and Washington. The main constitutional problem with the Patient Protection and Affordable Care Act is that it exceeds the federal government's authority under the Commerce Clause (an issue the Supreme Court dodged by implausibly treating the penalty for failing to obtain government-approved medical coverage as a tax). The same is true of the federal ban on marijuana, at least insofar as it purports to criminalize intrastate activity. In fact, the 2005 Supreme Court decision upholding enforcement of federal marijuana prohibition against patients in states that allow medical use is widely seen as the most extreme example of stretching the Commerce Clause beyond recognition to accommodate every congressional whim. "If Congress can regulate this under the Commerce Clause," Justice Clarence Thomas observed in that case, "then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers." Yet here is Cruz, an avowed constitutionalist and federalist, demanding that Obama impose marijuana prohibition on states that have opted out of it, based on an absurdly broad reading of the power to regulate interstate commerce.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • John||

    Being a federalist doesn't mean you reject the Supremacy Clause. Cruz is making a reasonable critique here. I think federal marijuana laws are absurd. They are however the law. Allowing the President to unilaterally decide that the states are free to upend a federal criminal law is absurd in its own right.

    You can make the argument that federal marijuana laws, at least as they apply to pot not imported or transported across state lines amount to a complete disregard of the commerce clause. I think that argument would be correct. But that is not the argument Obama is making. Obama is just deciding that it is okay for the President to cede federal supremacy wherever he feels like doing so. That is not a good precedent.

  • Zeb||

    I think that argument would be correct. But that is not the argument Obama is making.

    But Cruz could have made that argument if he were serious about respecting the constitution and federalism. He's lost any credibility he might have had with me as a defender of the constitution.

    And there are tons of other laws that are unenforced or very selectively enforced. That he makes noise about clearly unconstitutional drug laws rather than anything else makes me much more worried about his selective respect for the constitution a lot more than Obama's selective enforcement of certain federal drug laws.

  • John||

    And there are tons of other laws that are unenforced or very selectively enforced.

    And this is a good thing? We really want to entrench that as practice?

    What is the most important thing to be worried about is a pretty meaningless subjective decision. But whatever that list, the President unilaterally deciding that some laws are unworthy of his attention is on it somewhere.

  • Zeb||

    I see your point. But at this point, I just see the Federal government as so far beyond it's proper bounds and so unaccountable that I welcome any time that they step back a bit as I think it is probably the best we can hope for at the moment. And federal drug laws have always been quite selectively enforced. Even big drug cases for the most part aren't prosecuted federally if they don't involve smuggling across state or national borders.

  • Tony||

    As this article notes, federal resources have never been channeled into small-time marijuana infractions. Resources aren't unlimited; hence discretion is necessary.

    Cruz is trying (awkwardly) to contribute to a narrative of Obama being a runaway tyrant, not making a meaningful policy point.

  • Irish||

    Cruz is trying (awkwardly) to contribute to a narrative of Obama being a runaway tyrant, not making a meaningful policy point.

    Cruz is trying (accurately) to contribute to the rapidly accumulating fact pattern of Obama being a runaway tyrant, while simultaneously making a broader constitutional point.

    Also, define 'small time marijuana infractions.' Because the widespread sale of weed in a country where it is technically illegal does not strike me as a small time infraction.

    I realize you don't want to admit that federal marijuana bans are completely unconstitutional because that would make it more difficult for you to advance the various other unconstitutional laws you happen to be in favor of, but please at least pretend to have some principles.

  • Tony||

    I don't know if they're unconstitutional, but I certainly think they're incredibly bad policy.

    If Obama is overstepping his executive powers, we have courts to rein him in. Let's just not play stupid in understanding Cruz's motives. Clearly the Republicans got together and decided, since it's obviously too hard to have any actual ideas of their own, their next attempt at distracting everyone with attacks on the president will be about his use of executive authority--something any Republican who was around from 2000 to 2008 should probably feel really silly about pretending to care about now.

  • Smilin' Joe Fission||

    I hate when Republicans distract us all from Obama's agenda when they point out the unconstitutional or tyrannical actions of Obama.

  • Paul.||

    I don't know if they're unconstitutional,

    Well we know this, when the federal government moved to ban alcohol, for some reason, it thought it needed a constitutional amendment. Funny that.

  • Tony||

    It will be unconstitutional when someone successfully challenges its constitutionality in the court system. My goodness you're all a bunch of Platonists.

  • ||

    Haha, Tony doesn't realize that a law is unconstitutional, whether or not the Nazgul rule on it (let alone hear the case in the first place).

  • Paul.||

    It will be unconstitutional when someone successfully challenges its constitutionality in the court system.

    Except in the aforementioned example, feds didn't ban alcohol then wait for the court challenge, they amended the constitution before they implemented a ban, because the thought that the federal government had the authority to pursue such a policy was unthinkable.

    What you display Tony is the true mentality of a thug: Bully your constituents first and then see who has the balls to stop you.

    You're one of the most amoral people I've ever run across.

  • Hopfiend||

    This is a particularly stupid statement.

  • ||

    "I don't know if they're unconstitutional, but I certainly think they're incredibly bad policy."

    Yes, they are clearly unconstitutional. "Throw people into iron cages for ingesting substances they disapprove of" is NOT one of the 18 Enumerated Powers in Article I section 8.
    http://www.archives.gov/exhibi.....t.html#1.8

  • ||

    federal resources have never been channeled into small-time marijuana infractions.

    Yeah this is bullshit. Feds give plenty of money to state and local law enforcement which is used for small time pot infractions.

  • dbobway||

    So Right! Check out what the Feds give money to local cops for. Education, no! Cars, no. Technology, no. Automatic weapons, bullet proof vests, tanks YES!

    We're Fucked!

  • VG Zaytsev||

    And there are tons of other laws that are unenforced or very selectively enforced.

    And this is a good thing? We really want to entrench that as practice?

    Meh,

    We're well on are way to being a corrupt semi-lawless country. So just get it over with. I'd rather live in a country were a 20 in the cops palm gets him to look the other way than one were every fucked up crazy law is enforced to full effect by some zealous prosecuter. Better Italy than the Soviet Union.

  • AlexInCT||

    're well on are way to being a corrupt semi-lawless country.

    Is selective enformcement of laws the same as semi-lawless? Because the problem is that this clique of crooks only enforces the law when it benefits them and/or hurts the other side.

    Just asking.

  • ||

    He's making a point that the president's flouting of the law is unconscionable, but he picked the worst possible example.

  • dbobway||

    Abortion, gay marriage, religion,Pot! Outside of surreal TV, what does the mass voters give a shit about.

    Cruz picked one of "those" subjects so some way people might get Obama keeps the Hammer for those that don't support him and puts it behind his back those that do! Y'all paid attention.

    It's lawless tyranny! Oops that's not one of the talking points!

  • Agammamon||

    Except that's not what Obama is doing - he has basically said that (in weaselly language) there are limited federal law enforcement resources and the DOJ isn't going to waste time going after people who aren't doing harm.

    He hasn't said that state law trumps federal, he hasn't said that the DOJ *can't* arrest and prosecute dispensaries, only that the DOJ *chooses* not to.

  • John||

    Except that's not what Obama is doing - he has basically said that (in weaselly language) there are limited federal law enforcement resources and the DOJ isn't going to waste time going after people who aren't doing harm.

    And that is even more idiotic and mendacious than I thought. If people using pot in Colorado are not doing harm, why are people in Illinois or New York doing harm?

    He hasn't said that state law trumps federal, he hasn't said that the DOJ *can't* arrest and prosecute dispensaries, only that the DOJ *chooses* not to.

    Which is the arbitrary disregard of the law that Cruz is criticizing. If Obama can choose not to enforce the law here, then the law, since it only matters when it is enforced, is really up to the whim of Obama not the Congress and the courts.

  • Square||

    Also being ignored is that the Feds have been raiding dispenseries in CA even though Obama said they wouldn't and is pretending that they don't.

    Obama = 100% pure political cynicism. He wants credit for softening up on pot at the same time that he doesn't want to get blamed for softening up on pot.

    Cruz, though, is a hypocrite. Let's not pretend that he's expressing innocent outrage.

  • waffles||

    They are doing harm because they aren't obeying the law. Marijuana causes pernicious disrespect for authority. Also Obama is cool.

  • ||

    It's so clear to me now.

    Thank you waffles! I'm off to join the cult of Obama Organizing for America.

  • Sudden||

    He hasn't said that state law trumps federal, he hasn't said that the DOJ *can't* arrest and prosecute dispensaries, only that the DOJ *chooses* not to.

    This. Its his way of dangling his authoritah cock out there for all to see.

    "Don't get me wrong, if I want to murderdrone arrest anyone I damn well please, I can. It is only through my grace and mercy that you proles continue to live unmolested."

  • Paul.||

    only that the DOJ *chooses* not to.

    The most powerful law is the selectively enforced law.

  • John C. Randolph||

    The supremacy clause only applies to constitutional laws. There is no constitutional authority for the federal government to ban Marijuana or any other drug.

    -jcr

  • John||

    The supremacy clause only applies to constitutional laws. There is no constitutional authority for the federal government to ban Marijuana or any other drug.

    Bullshit. The can ban its movement across state lines and its import into the country.

    Beyond that, if Obama were taking your position, this would be much less worrisome. But that is not what he is doing. He thinks the laws are Constitutional and enforceable. He just thinks he has to power to decide when and where the law should be enforced.

    No matter how unconstitutional marijuana laws are, the President deciding he is the final arbiter of which laws will actually be enforced, is a real problem.

  • ||

    No, not really. Look at alcohol as a precedent- to ban its importation and transport across state lines took a constitutional amendment, since clearly the power to regulate intoxicants had not been granted the Federal government. Of course, that was like a millionty years ago when the constitution meant a little more than it does now.

  • John||

    Again, whether the laws themselves are Constitutional is a different debate. Obama thinks they are. His position is that he can just decide not to enforce them in some states. Once he has that power, the law is now Obama. That is tyranny.

  • ||

    If you take an oath to uphold the constitution, then you are obligated not to enforce unconstitutional laws.

  • Smilin' Joe Fission||

    But he is enforcing it... just not in some places.

    And besides that, if he believes marijuana laws to be unconstitutional, why is he not making that argument and pushing for repeal?

  • R C Dean||

    It all comes down to what is meant by "interstate commerce". As originally drafted, it was not understood to mean "anything and everything that is subject to economic activity and that happens to cross a state line." It meant something like "the terms and conditions of trade across state lines." That was supposed to be standardized across the country. Economic regulation more broadly? Not so much.

  • John||

    "the terms and conditions of trade across state lines." That was supposed to be standardized across the country.

    Sure it means that. And if some states ban the stuff and other states allow it, Congress is totally within its power to ban it crossing state lines. And it absolutely is within its power to ban its importation.

  • Night Elf Mohawk||

    No, it all comes down to what is meant by "regulate."

  • Rich||

    Yep.

    And "militia". ;-)

  • Death Rock and Skull||

    Fucking around with free trade is unconstitutional, whether or not "interstate commerce" is in the constitution. We need a new fucking constitution, that progressives, social conservatives, and statists don't get to be involved in.

  • Francisco d Anconia||

    Unfortunately, the way things are going, you might get your wish. (Keeping the socons out of the constitutional convention may, however, be problematic.)

  • Irish||

    John's right here. The ban on alcohol was a ban on consumption which is why it required a constitutional amendment. If they had just banned the importation or sale across state lines, that clearly would have been justified under the commerce clause. In that case though, bootlegging and production for local consumption would have still been legal.

  • ||

    I don't see that. The constitution was clearly saying that the Federal role was to prevent states from inhibiting commerce between them or favoring in-state producers at the expense of out-of-state producers (e.g., imposing a tariff on goods brought into their state from another state).

    Importation is a different issue, and there, the Federal government clearly has been granted pick-and-choose power.

  • Francisco d Anconia||

    While that was clearly the intent, there's been too much water under the bridge to stick that genie back in the bottle. (Baring a constitutional amendment)

  • seguin||

    That was back when people could read it.

  • Austrian Anarchy||

    Bullshit. The can ban its movement across state lines and its import into the country.

    Are you grossly misinterpreting the Commerce Clause? There might be a seat for you in the Congress, or even on a federal court.

  • John||

    Are you grossly misinterpreting the Commerce Clause?

    Only if you are an illiterate. Last I looked Congress owned the power to determine customs and what can and cannot be imported and it had the power to "regulate commerce amongst the states and Indian nations". That means if a product goes across state lines, the feds can regulate it.

    Jesus fucking Christ on a crutch. The clause doesn't mean anything like the bullshit that Courts have said it does. But only a fucking retard would think it doesn't mean that Congress has the power to ban the importation of an actual good into the country.

  • Acosmist||

    John 1, you 0

  • Homple||

    "No matter how unconstitutional marijuana laws are, the President deciding he is the final arbiter of which laws will actually be enforced, is a real problem."

    There are so many laws that it is physically impossible to enforce them all, so selective enforcement is unavoidable. That is one problem with having such an insane number of laws.

  • Square||

    The President is never the final arbiter - the Supreme Court is.

    If the President refuses to enforce a law, he can do so. Congress can censure him, or if Cruz really gave a fuck (which he doesn't), he could bring a lawsuit for damages caused by the President's failure to enforce a law, or start impeachment proceedings if he really feels that this failure is criminal.

    A President deciding he's going to enforce some laws with more passion than others is not some unprecedented tyranny - Cruz is posturing.

  • ||

    Of course John would defend Ted Cruz, he's got a capitol 'R' after his name, and as we all know, in John's world view, Republicans are angels sent from heaven who can do no wrong.

  • ||

    That is patently retarded.

  • ||

    I'm sorry, but "Throw people into iron cages for smoking dried flowers" is NOT one of the 18 Enumerated Powers, and an unconstitutional law isn't a law.

  • R C Dean||

    Ya know, a lot of what Cruz does, I like.

    And then he reminds me that he's a former prosecutor.

  • Killaz||

    Your words, my sentiments. I thought he got too much flak over the budget showdown, but he still is trying to give me plenty of excuses not to vote for him.

  • VG Zaytsev||

    And SoCon

  • Rich||

    it is all about "using [the department's] limited investigative and prosecutorial resources to address the most significant threats

    Obviously the solution is to provide the department unlimited resources.

  • tarran||

    To play devil's advocate:

    Isn't one sure-fire way to get a bad law repealed completely is to enforce it rigidly until it is incredibly unpopular?

  • John||

    Or is there a more slippery slope than allowing executives to pick and choose which laws they think are worthy of enforcing?

  • Agammamon||

    Sort of - this sort of thing has lead to the current administrations trend to not only decide when to and when not to enforce (the provisions of Obamacare, for example) or even to change the law (excuse me, *regulations*) as they see fit.

    On the other hand - this sort of thing has been a time-honored part of the justice system and has been as much a check on the tyranny of law as used to tyrannize. Think of all the cops that give warnings instead of speeding tickets, or simply take a kid's stash of booze away instead of arresting him for underage drinking.

  • John||

    This kind of thing has not been time honored at all. You are confusing prosecutorial discretion with tyranny. Prosecutorial discretion is when the Prosecutor decides that the circumstances surrounding an individual case are mitigating enough that it would be unjust to enforce the law. This, is the President deciding that the law just will no longer apply unless he thinks otherwise. There is nothing mitigating about the cases in Colorado. The people there violated the law just as much as anyone else. They are just getting a pass because for the moment Obama sees it as politically advantageous.

    You guys think this tyranny is great because dear Leader is giving you something you want. You need to realize that pony isn't worth ceding such authority to dear leader. He won't always be so benevolent.

  • Zeb||

    Who is ceding authority to anyone? Whatever we or Ted Cruz might think about it, this is something that the president has the power to do.

  • Irish||

    How so? The president is required to see that the laws are faithfully executed.

    If the national pot ban is legal, then he needs to enforce it. If it is illegal, then Colorado and Washington shouldn't have even had to pass laws legalizing it since it shouldn't have been federally banned in the first place.

    The argument that the national pot ban is legal but that states are allowed to get out of it by passing state laws is completely untenable.

  • John||

    Who is ceding authority to anyone?

    You are by saying Obama has the power to decide that an entire class of laws no longer apply to some areas of the country.

    If he can do this, why can't he decide not to enforce corruption laws in Democraticly controlled areas of the country?

  • Zeb||

    "why can't he decide not to enforce corruption laws in Democraticly controlled areas of the country?"

    Can't he?

    Or do you think that he should be impeached and removed fro office for not enforcing pot laws in states where it is legalized?

  • Paul.||

    If he can do this, why can't he decide not to enforce corruption laws in Democraticly controlled areas of the country?

    He's not.

    *boom*

    I'm here all week.

  • seguin||

    Prosecutorial discretion is when the Prosecutor decides that the circumstances surrounding an individual case are mitigating enough that it would be unjust to enforce the law.

    Or when it's a friend, colleague, or avenue for advancement of the prosecutor.

    And then you go straight back to tyranny.

  • some guy||

    True. But in order to rigidly enforce drug law we would have to spend an order of magnitude more on the drug war than we are now. By the time we were finished the police state would be so huge that laws wouldn't matter anymore.

  • Zeb||

    Not to mention all of the innocent people who would get fucked over.

  • Zeb||

    And I include in "innocent people" people who use, sell or produce drugs without engaging in other crime.

  • some guy||

    Of course.

  • Zeb||

    That doesn't seem to be working too well with most state drug laws. Pot may be becoming an exception to that, but there are lots of other drug laws.

  • VG Zaytsev||

    tarran|1.13.14 @ 12:27PM|#

    To play devil's advocate:

    Isn't one sure-fire way to get a bad law repealed completely is to enforce it rigidly until it is incredibly unpopular?

    Great theory, too bad it almost never works.

  • wareagle||

    Arizona passes law the administration doesn't like because of conflicts with federal statutes? Lawsuits and thunder follow.
    Colorado and Washington pass laws that don't mess with federal statutes but administration has no heartburn? Crickets.

    I think Cruz is saying be consistent, which should not be a shocking standard to expect.

  • Irish||

    Yeah. I disagree with him because I don't think the government has the power without a constitutional amendment to ban anything. At the same time, his argument is that the president should enforce the law and should not have the right to enforce some laws and not others.

    The supremacy clause is unbelievably important and must be respected when it's something Obama wants. When it's something Obama doesn't want, the Supremacy Clause is irrelevant and can be safely ignored.

    At the point when the president is just deciding which laws are enforced and which aren't, you are no longer a Republic. You're essentially a soft dictatorship.

  • KevinP||

    Exactly. If the states and the people decide to ignore federal gun control laws and start producing and selling new machine guns, will Obama have the same response? I doubt it.

  • Rich||

    Why "soft"?

    Because you don't know anyone who's been disappeared?

  • Irish||

    Because he's not capable of unilaterally creating laws. If Obama were capable of unilaterally saying 'all property owned by the 1% now belongs to the people' that would be a dictatorship.

    Deciding which laws that already exist should be enforced is certainly autocratic, but it still falls far short of a legitimate dictatorship.

  • Rich||

    If Obama were capable of unilaterally saying 'all property owned by the 1% now belongs to the people' that would be a dictatorship.

    If you think he's *not* so capable, you're RACIST!

    Seriously, what about Executive Orders? What about government officials who serve at the pleasure of the President being capable of making up regulations that have the power of law?

  • Zeb||

    Well then we've already been in a dictatorship for a long time.

  • Rich||

    A *soft* dictatorship.

  • VG Zaytsev||

    Yes we have.

    The most destructive thing that public schools have done (which is really saying something) is brainwashing an overwhelming majority of people into believing the the government is us and therefor somehow legitimate. Any occupying power that tried to do 1/4 of the shit that the federal government does would be met with violent opposition. But We are the government so it's cool when they throw your kids in a cage for some petty bullshit that doesn't hurt anyone.

  • Zeb||

    The case with the immigration law was a bit different. There the argument was that the states don't have the power to enforce immigration laws. It was about what states have the power to do, not what the Feds have the discretion not to do.

  • Juice||

    I argue that ONLY the states have the power to enforce immigration laws and that the federal government has power over citizenship/naturalization.

  • R C Dean||

    Arizona passes law the administration doesn't like because of conflicts with federal statutes?

    The Arizona immigration law did not conflict with federal statutes.

    It conflicted with current policy. The argument was whether unenacted federal policy trumps enacted state law.

    The answer was "yes".

  • wareagle||

    The argument was whether unenacted federal policy trumps enacted state law.

    still comes down to cracking down on perceived political adversaries and turning a blind eye to perceived political allies.

  • John||

    Yet here is Cruz, an avowed constitutionalist and federalist, demanding that Obama impose marijuana prohibition on states that have opted out of it, based on an absurdly broad reading of the power to regulate interstate commerce.

    If federal marijuana laws exceed the commerce clause power, then they shouldn't apply to any state opt out or no. There are three possible positions here; that the federal laws are valid and Obama is unlawfully ceding supremacy to the states, that the laws are invalid but somehow they still apply unless a state legalizes marijuana, or that the laws are invalid regarding anything beyond taking marijuana across state lines or importing it and thus should not be enforced on any state.

    The first and the third positions are entirely reasonable depending on your view of the commerce clause power. The second one is completely idiotic and seems to be the position that Reason is saying Cruz should take.

  • Smilin' Joe Fission||

    I agree. I don't understand why Reason is arguing for this. Ted Cruz is simply arguing that if we have these laws, it is our duty to enforce them, not to pick and choose which ones we will enforce or not.

    If Obama doesn't want to enforce Federal marijuana laws, make the argument for a change to the laws. The way Obama is going about it now is trying to have his cake and eat it too. He wants to come across as liberal on marijuana laws without actual giving up any of his power to prosecute.

  • ||

    I for one am perfectly happy with the federal government not enforcing immoral or unconstitutional laws.

  • Smilin' Joe Fission||

    Then argue for their repeal. Selective enforcement is worse in the long run for liberty.

  • wareagle||

    then you are perfectly happy with the govt being the arbiter of what is or is not moral.

  • Irish||

    My favorite part was that I saw a freaking Raw Story article attacking Cruz over this.

    How's that for principles? In no other instance would the borderline fascists at that site argue that a state has the right to supersede a federal law. If the feds banned guns tomorrow and Texas refused to comply, would progressives be applauding Texas for taking a principled stand on behalf of federalism?

    Either the federal ban on pot is constitutional or it isn't. If it is, then states can't ignore it. If it isn't, then the entire Controlled Substances Act, FDA drug bans, the FCC, and federal gun laws are also unconstitutional. Any position other than the two outlined above is idiotic.

  • Smilin' Joe Fission||

    Either the federal ban on pot is constitutional or it isn't. If it is, then states can't ignore it. If it isn't, then the entire Controlled Substances Act, FDA drug bans, the FCC, and federal gun laws are also unconstitutional. Any position other than the two outlined above is idiotic.

    Wouldn't it be great if this was actually seriously debated ever by politicians?

  • SusanM||

    Slightly OT: Have the incarceration rates in Colorado and Washington dropped any since legalization?

  • KevinP||

    Probably too soon to tell. I'd wait for at least a full year to pass.

  • KevinP||

    Sullum is missing the point here. Federalism is certainly an important constitutional value and a structural protection for liberty. So is the equal protection and equal application of the law, regardless of the political preferences of those in power. Lack of the latter is an important factor in loss of liberty, and you can see this happen all the time in Third World countries, where supposedly even handed laws are enforced in a very uneven fashion.

    Cruz is not demanding anything - except that the President stop unevenly enforcing the laws.

  • ||

    Yet in this case, enforcing the federal law in CO and WA would lead to a loss of liberty.

  • John||

    Yet in this case, enforcing the federal law in CO and WA would lead to a loss of liberty.

    In the short term perhaps. But in the long term giving the President that kind of power would result in the loss of a hell of a lot more liberty.

    Are Libertarians this cheap of dates? Are they so easily bought off a little pot in two states will get them to sell out equal protection and the rule of law?

  • Zeb||

    I mentioned this above, but I'll mention it again, because I'd like to know your response.

    How is what is happening "giving" the president a power? It seems to me that this is a sort of thing that every president has had the power to do. DOJ is part of the executive branch, so the Pres. gets to tell them how to operate. Maybe this sets bad precedent as policy, but I don't see how it is a novel power being given to the president.

  • Irish||

    From the president's oath of office:

    I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect, and defend the Constitution of the United States.

    Given that the constitution explicitly states that federal law trumps state law, we are left with two possibilities:

    1. The pot ban was unconstitutional to begin with and should not be enforced anywhere

    2. The pot ban is constitutional and Colorado should be held under the ban because of the Supremacy Clause.

    The president has some discretion in the operation of the DEA and DOJ, but he cannot decide that he won't enforce the law in two states while continuing to enforce it everywhere else.

  • Fluffy||

    One reading of that oath would bind the President to refuse to enforce any law he believes to be unconstitutional.

  • Irish||

    In which case he should not be enforcing the pot ban anywhere in the country, not picking and choosing which states get a pass.

  • wareagle||

    the oath says nothing about what a POTUS "believes" to be unconstitutional, only that he will preserve, protect, and defend that already judged as such.

  • ||

    Such refusal of enforcement would be justified if there was a parallel case by the AG stating such a thing and allowing the court to arbitrate.

    Simply saying Fuck You, I'll Do What I Want totally subverts any notion of Constitutionalism.

  • Azathoth!!||

    No, that's not within his enumerated powers. He has to uphold the Constitution. Changing it at whim is not among his powers. There is a process for finding something unconstitutional in the Constitution he has sworn to uphold. He cannot just ignore the Constitution at whim.

  • Zeb||

    I think you are using the word "can" in a different way than I am.

  • trshmnstr||

    It's like putting fingers in the dam to keep it from leaking. Cruz has his finger in a hole (federalism) that could cause the entire dam to break if left alone, but water is gushing out of the other hole (drug legalization) at an alarming pace.

  • ||

    So does that mean someone in California would have standing, under equal protection/application, since Obama still has the DOJ busting and shutting down the MMJ shops, but has said he won't do anything in CO or WA?

  • Azathoth!!||

    You put this in your article--

    You can go to Congress. You can get a conversation. You could get Democrats and Republicans who would say, "We ought to change our drug policy in some way," and you could have a real conversation. You could have hearings. You could look at the problem. You could discuss commonsense changes that maybe should happen or shouldn't happen. This president didn't do that. He just said, "The laws say one thing"—and mind you, these are criminal laws; these are laws that say if you do X, Y, and Z, you will go to prison. The president announced, "No, you won't."

    And then ignore it to make this inane comment--as your closing statement, no less--

    Yet here is Cruz, an avowed constitutionalist and federalist, demanding that Obama impose marijuana prohibition on states that have opted out of it, based on an absurdly broad reading of the power to regulate interstate commerce.

    Cruz is demanding constistency. Cruz is demanding that Obama abide by his oath of office. Cruz is demanding that the legislative process be used to alter law--instead of Presidential whim.

  • Rich||

    Cruz is demanding that the legislative process be used to alter law

    Careful what you ask for. You may get the legislative process that was used to "create" Democratcare.

  • The Late P Brooks||

    Ted Cruz can eat my shit.

  • ||

    I don't understand why people are bending over backwards to defend Cruz here. He's always been a drug warrior, you don't need to invent some other motive for him here.

  • ||

    Then take Cruz out of the equation and analyze this for what it is, a discussion about Executive vs. Congressional powers.

  • Irish||

    Because in this instance his argument is not only completely reasonable but is actually necessary for the functioning of a free state. The president doesn't get to decide when the Supremacy Clause applies and when it does not.

    If Obama had gotten his precious Newtown gun laws passed, do you think he'd be accepting a state like Missouri refusing to adhere to the law? No. And it seems fairly obvious to me that when the president gets to decide which laws fall under the Supremacy Clause and which don't, the president has given himself dictatorial powers.

    Pointing out that the president doesn't get to autocratically enforce some laws and not others is hardly 'bending over backwards.'

  • SIV||

    He's always been a drug warrior,

    The standard drug warrior line is that even discussing legalization should be off limits as it "sends the wrong message". Cruz says there are "reasonable arguments" for legalizing marijuana and there is a process for doing so.

    A whole lot of folks now are talking about legalizing pot....And you can make arguments on that issue. You can make reasonable arguments on that issue.

  • ||

    Or were they exercising appropriate discretion in deciding how best to allocate federal law enforcement resources?

    Discretion was exercised at street level, not at the Oval Office level. There was never a statement from the Oval Office regarding prosecutorial discretion regarding Federal Law. Having the Oval Office go on record and state "You know that law Congress passed, you can ignore it, because we're not going to enforce it" is a gigantic "Fuck You" to Congress and is light years away from street level discretion.

    I think you're blinding yourself here by your own desire. Sure, I am a wee bit happy from an outcome perspective. But since it clearly violates my Rule of Law/Constitutional principles in regards to how the Executive Office should operate, I have to swallow my happiness and say "THIS IS WRONG".

  • John||

    If the President can do this, why couldn't he decide that the enforcement of federal election and government corruption laws in Democratic controlled states not the "best way to allocate federal law enforcement resources"? I don't see where Sullum would have any reason to complain in that case other than "but that is not fair". Yeah well, that is what the people who liked the marijuana laws said.

  • VG Zaytsev||

    He already has done that and he has also decided to not enforce immigration law.

  • kbolino||

    There is no law that says being here without the proper papers is a crime, and there is no law that says the government must go around finding people without papers.

    Access at the border is controlled, the border patrol has authority 100 miles inside of the border, people are deported all the time, and employment is treated like a privilege granted by the government, not a fundamental right of association between employee and employer. What more do you want?

  • ||

    What Cruz is pushing for is the Obama Admin to put its teeth behind its decision. Why have any laws on the books if they are not going to be enforced by those who make them. This kind of picking and choosing is a symptom of far too many laws on the books. Rather than strike them from the record this President and his Admin, and everyone that supports that decision, is saying we are going to choose which laws we are going to enforce and when. So everyone can be doing something illegal but randomly charged.

  • Irish||

    I think it was Arthur Koestler who once said that a dictatorship is not defined by harsh laws but by capricious laws. If a law is harsh but applies to everyone, it's not a dictatorship. If the leader has the right to negate laws when it is politically advantageous, that's when you know you are living in an autocratic state.

    As it stands now, what the people in Colorado are doing is still technically illegal and the president COULD start locking people up any time he so chose. What's to stop him from only locking up people he doesn't like and failing to enforce the law on people he does like?

    Libertarians should not allow the gutting of the rule of law simply because this one time it resulted in something we like. 99% of the time it results in atrocious outcomes and refusing to hold the line when we get something we like makes us indistinguishable from the morons on the left and right.

  • Zeb||

    Under that definition, there has never been and almost certainly never will be a government that is not a dictatorship. Government will always be made up of the sort of people who seek power and control and those people will use their position to help favored people and constituencies and harm their enemies. The rule of law is largely an illusion.

    Libertarians should not allow the gutting of the rule of law simply because this one time it resulted in something we like.

    Sadly, libertarians are not in a position to allow or disallow anything. A whole bunch of shit has happened in the past 10 years that I have not allowed. Yet it happens anyway. So I'll take what I can get.

  • Capt. Rimmer||

    Koestler can suck my dick. This "as long as we suffer equally" is diseased thinking.

  • Irish||

    ...His argument wasn't that harsh laws are okay, it was that it's not technically dictatorial. It's only dictatorial if someone can choose when a law is enforced. His point is largely accurate.

  • kbolino||

    This "as long as we suffer equally" is diseased thinking.

    The reason why communism failed miserably, while its close cousin socialism plods along, is because the former was applied universally and the latter selectively.

    Selective enforcement is the practical enemy of liberty for all.

  • The Late P Brooks||

    The memo closes with a warning that "nothing herein precludes investigation or prosecution, even in the absence of any one of the factors listed above, in particular circumstances where investigation and prosecution otherwise serves an important federal interest."

    Asset seizures; you know, "compelling" justification. As soon as those pot shops have grown sufficiently profitable, the feds will take notice.

  • Rich||

    This.

  • R C Dean||

    They're waiting on a few busts of CO pot that was taken out of state. Then they will put on their shiniest jackboots and shut it down.

    And, if you hold that the commerce clause is triggered whenever something crosses a state line, that will be perfectly Constitutional.

  • Acosmist||

    You don't need that under Raich anyway.

  • The Late P Brooks||

    Isn't one sure-fire way to get a bad law repealed completely is to enforce it rigidly until it is incredibly unpopular?

    I'd say enforcing it rigidly against the people whose opinions matter. If some Senator's favorite aide were to be sentenced to ten years in a maximum security federal prison for dealing dope to the pages there'd be a "serious" re-examination of the drug laws.

    But we all know that will never happen; selective prosecution will ensure the right people never wind up on the wrong side of the concertina wire.

  • R C Dean||

    selective prosecution will ensure the right people never wind up on the wrong side of the concertina wire.

    And that is why selective prosecution is anathema to rule of law. Every time a prosecutor decides not to enforce a law, he is in effect exercising a micro-repeal of that law.

    Now, there may be good reasons not to prosecute, etc., but lets not kid ourselves: this authority will not be exercised only when there are good reasons.

  • sarcasmic||

    Selective enforcement and police discretion are rule of man, not rule of law.

  • R C Dean||

    What's funny, of course, is that the Prez has the unilateral power to move pot off of Schedule 1, and thus off the federal enforcement menu altogether.

    This isn't even necessarily about executive v. legislative power. This is about the exercise of executive power in an arbitrary way.

  • Rich||

    Perhaps congress will pass a law requiring the executive to enforce all laws.

  • John||

    Exactly. Either the President believes pot is bad and worthy of prohibition or he doesn't. If he doesn't, then he needs to move it off of Schedule 1 and stop enforcing the federal prohibition everywhere. If he does think it is worthy of prohibition, then he shouldn't be ceding federal supremacy to Colorado.

    How is it fair for people in other states to get slammed by the feds for doing exactly what people in Colorado are doing?

  • Fluffy||

    That's a fair criticism, absolutely.

  • R C Dean||

    Its just as fair as giving people who had insurance policies cancelled special treatment under OCare, while enforcing deadlines on everyone else.

  • John||

    That was bullshit as well.

  • sarcasmic||

    I still believe that the federal government is just biding its time.

    Remember those conditions that the feds placed on leaving legal pot dealers alone?

    One of them was that the stuff stay in the state where it is legal. Fat chance that that's going to happen.

    At some point there will be some big busts in neighboring states which will be followed by federal sweeping raids on the legal growers.

    They're just waiting for the pile of assets they plan to steal gets big enough. Then they'll find their excuse, swoop in, and let the plundering begin.

    In a way I hope it's bloody, just so people see how tyrannical the federal government is.

  • Tony||

    Sounds like we need to elect Ted Cruz president so you can get your wish. Barring that, it seems that government at all levels is moving inexorably toward a saner approach to drug law.

  • Fluffy||

    If Cruz is arguing for no prosecutorial discretion of any kind at all up the chain of command at DOJ, I suppose I can endorse that.

    As a first step to implementing this principle, I propose a thorough investigation of all Senatorial staffs and all family members of Senators, and an uncompromising, no-holds-barred full prosecution of them if any technical violations of any existing statute are found.

    Including statutes normally thought defunct but still technically on the books.

  • Rich||

    But ... "limited resources", Fluffy.

    How about just a *pilot* thorough investigation of the staffs and family members of three randomly-chosen Senators?

  • Fluffy||

    I choose McCain, Graham, and Schumer.

    Better make it four and throw in Feinstein just to be nonpartisan.

  • trshmnstr||

    Substitute Reid for Feinstein, and we've got a deal

  • John||

    If you are all about prosecutorial discretion Fluffy, then I guess you will be fine with Obama deciding that DOJ is no longer going to investigate any kind of voting fraud or official corruption in any state controlled by the Democratic Party.

    What would be your problem with that? Do you object to any sort of discretion? If that is the case, then I guess you are okay with DOJ sticking a probe up fluffy and his entire family's asses to make sure you are not violating hte law.

    You seem to confuse prosecutorial discretion with complete disregard for the law. The two are not the same thing.

  • Fluffy||

    Prosecutors "completely disregard" the laws against startling horses with cars or what have you every day.

    As others have noted, the problem is the proliferation of laws, and the steadfast refusal of the legislative branch to ever undertake comprehensive repeals.

    But there's another problem. We here at H&R tend to think of "the law" as an impersonal and unitary force - an impersonal and objective arbiter, spelling out prohibited and permitted behaviors, and allowing each man to clearly understand his rights and obligations.

    Go over to Volokh or any lawyer board with that view and they'll laugh in your face.

    To the legal intelligentsia, "the law" is an amorphous body of text, endlessly subject to interpretation, which means one thing before one court on one day, and the complete opposite before a different court on a different day. And to them, this is not a bug that cries out for a cleansing in blood, but a feature - because to them the purpose of law is to allow a perverse kind of ritualized Coasean bargaining, wrapped in the pretense of objectivity.

    And if that's "the law" it's hard to really get bent out of shape if DOJ decides not to prosecute people for pot.

  • R C Dean||

    A nice summary of critical legal theory, which adds only the crypto-Marxist gloss that the endless interpretation is done to privilege old white men.

  • sarcasmic||

    John is not only a lawyer, but a former prosecutor.

  • ||

    Prosecutors "completely disregard" the laws against startling horses with cars or what have you every day.

    But they don't do this because their bosses publicly went on record telling them not to.

    It's the open pronunciation of a direct refusal to enforce a legislative act that's the real issue here.

    And it's made especially egregious, as RC pointed out and you concurred, that there's a direct administrative remedy to this particular issue.

  • ||

    Volokh has been invaded by progressive trolls ever since the individual mandate case. That is the problem. The comments section is filled this them.

    Also, it's not really "Coasean" bargaining if the goal of the ritualized endeavor is to enlist the force of government to get your way.

  • Irish||

    Volokh has been invaded by progressive trolls ever since the individual mandate case. That is the problem. The comments section is filled this them.

    There are still some hardcore conservatives and libertarians there. It depends which article you're reading.

  • Fluffy||

    Which is what John Roberts did.

  • Fluffy||

    Sorry, that should be a reply to my own comment below.

  • Fluffy||

    Also, it's not really "Coasean" bargaining if the goal of the ritualized endeavor is to enlist the force of government to get your way.

    You're right of course.

    I was grasping for a way to describe a process where (at least according to the Volokh crowd) the point of legal proceedings is for courts to see what interests line up on what side of any issue and then randomly select text from the text set that will please as many interests as possible.

  • trshmnstr||

    To the legal intelligentsia, "the law" is an amorphous body of text, endlessly subject to interpretation, which means one thing before one court on one day, and the complete opposite before a different court on a different day. And to them, this is not a bug that cries out for a cleansing in blood, but a feature - because to them the purpose of law is to allow a perverse kind of ritualized Coasean bargaining, wrapped in the pretense of objectivity.

    The law is just a tool to get the preferred outcome. When you can cite precedent supporting nearly any position, it becomes more of a beauty contest than an objective determination.

  • Fluffy||

    When you can cite precedent supporting nearly any position, it becomes more of a beauty contest than an objective determination.

    Right.

    That problem is built into any system that runs on stare decisis and where the body of accumulated cases passes a certain threshold.

    But how to get rid of it?

    No one is going to allow us to sweep away precedents and undertake a vast legal simplification. Least of all the lawyers.

  • John||

    Prosecutors "completely disregard" the laws against startling horses with cars or what have you every day.

    If Obama decided that the entire body of federal drug law was unconstitutional, I would not be bothered by this. I think the President has a say in what the Constitution means and should as part of his oath interpret it as he believes it to be.

    But that is not what is happening here. Obama is not saying the law is unconstitutional. He is saying the law only applies where he sees fit. That is my problem.

    And yes, the legal intelligentsia are a bunch of tyrannical fools.

  • Square||

    The elephant in the room being ignored is that this is not "discretion" in any ordinary sense - this is not too far a cry from the Nullification Crisis when South Carolina declared it wasn't going to enforce federal tariffs. A military conflict very nearly resulted, and it became one of the more direct causes of the Civil War.

    Obama is not just declaring that he doesn't care for some randomly chosen law that he doesn't feel like enforcing. He is (claiming that he is) declining to send armed federal agents to enforce an unpopular law into states that have explicitly rejected said law and overtly expressed their refusal to continue enforcing it.

    Avoiding even the potential for armed conflict between federal and state enforcement agencies is always a good idea. And there is potential here - the City of Oakland is already desperately pissed off at the feds over their decision to enforce their laws over ours.

    There's real potential for serious ugliness as prohibition rolls back. This is not a naked case of presidential tyranny.

  • The Late P Brooks||

    One of them was that the stuff stay in the state where it is legal. Fat chance that that's going to happen.

    There was a whole series of cut-and-paste articles about state police in [insert adjoining state name here] fretting about a TSUNAMI of Colorado dope washing over the state line, and causing incalculable pain and suffering.

  • Death Rock and Skull||

    I would rather have laws not enforced, than laws enforced. Obama would be a much better president if he refused to enforce more laws.

  • ||

    Today's favorable actions have an annoying way of setting precedents that end up biting you in the ass.

  • R C Dean||

    I agree. Unfortunately, what Obama has said isn't that he will no longer enforce the pot laws, but that he will enforce them arbitrarily.

  • Alex the wolf||

    Well, even worse than Obamacare is Obamacare selectively enforced.

  • Rufus J. Fisk||

    Random question.....what is the best book that deals with the history of the supreme court?

  • R C Dean||

    Game of Thrones?

  • Enough About Palin||

    The Bobbsey Twins; Merry Days Indoors and Out?

  • DEATFBIRSECIA||

    Best one I've seen so far, though I wasn't aware they had gone to court:

    http://www.telegraph.co.uk/cul.....eview.html

    From the review:

    "The story of the Supremes is one of the great music business fairy tales: three girls from the projects of Detroit taken under the wing of Motown Records, the most successful hit-making factory in pop music, rise to become global superstars."

  • Enough About Palin||

    Contrary to the Raw Story headline

    Went to that site for the first time yesterday. Why would anyone read that pile of shit?

  • ||

    I sympathize with John's point. Selective enforcement is a dangerous tool, and we shouldn't allow this to set a precedent.

    I doubt Cruz is in favor of legalizing marijuana though. I also doubt he's in favor of leaving it up to the states, which would be the consistent position to take for a "Tea Party" guy.

    In this instance, Obama's actions have the *effect* of allowing states to set their own policy, which is superficially the libertarian thing. But Obama's not doing it because he has any libertarian tendencies. He's doing it because he has autocratic tendencies, and he wants to ramrod his own policy over the legislature.

    And what can be changed by the whim of one president, can be changed BACK by the whim of another.

    Libertarians ought to be pushing for just such a congressional debate over marijuana policy, so that we can LOCK IN changes to federal marijuana policy, before someone like Ted Cruz gets elected. Because I would much prefer a "Tea Party" person to Obama, and we want to constrain said Tea Party person so that he can't instantly reverse any gains on gay marriage or drug policy that we've made.

  • Paul Pot||

    This is so ridiculous.
    OK lets go with his call.
    How much will it cost for the feds to move in on 2 states and open up whole new federal police units to do the job that these states police used to do?
    Then how much will it cost to do this when the next state or states legalize.
    Then think of the sour relations that would engender between the fed and the people of those states.
    The President has already indicated he is not willing to get involved in such a ridiculous charade.
    Hasn't this guy worked it out.
    Support for ending marijuana prohibition has been growing for decades, it is now well passed 50% and still growing strong.
    This man is not looking for a long term career in politics.

  • Alex the wolf||

    He was making the case that Obama is engaging in selective enforcement. Cleary, no president is going to go full weight against pot. But saying its ok and looking the other way is not the same.

  • Todd Gilbert||

    Don't you just love those anti nanny state Republicans.

  • Alex the wolf||

    Cruz is a difficult case for reason. He is clearly a libertarian and clearly NOT a hippie of the right.

  • ||

    The Controlled Substances Act IS inoperative in states that don't prohibit cannabis. In 1914, the federal government had exactly the same federal supremacy it does today in 2014. But in order to prohibit alcohol, the feds had to amend the constitution with the 18th amendment. And the 21st amendment completely repealed the 18th.

    The 21st amendment grants the federal government to stop shipments of intoxicating liquor into places where it is prohibited. The feds stretched their authority under the 21st, applying it to all intoxicants not just liquor, and used that authority to pass laws like the CSA.

    As long as all the states prohibited the intoxicants the CSA did, the CSA existed in a constitutional gray area. Since there was no legal source of cannabis in any state, all cannabis must be smuggled in, so possession was prosecutable under the CSA.

    And then medical marijuana happened. The gray area got smaller, since the FDA had authority over prescription drugs.

    Then two states outright legalized recreational use. Suddenly, there's states with legal sources of cannabis that are not under FDA drug authority. And that gray area disappeared.

    The DOJ is well aware of what happens when a blatantly unconstitutional statute is used to prosecute someone for constitutionally-protected behavior. They don't want to risk a court striking down the CSA, which will almost certainly happen at the first constitutional challenge to its enforcement.

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online

  • Video Game Nation: How gaming is making America freer – and more fun.
  • Matt Welch: How the left turned against free speech.
  • Nothing Left to Cut? Congress can’t live within their means.
  • And much more.

SUBSCRIBE

advertisement