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The Rule of Law Supports Marijuana Federalism

On Thursday, Attorney General Jeff Sessions announced that he was rescinding all of the Obama administration's enforcement guidance that had foresworn enforcement of the Controlled Substances Act against marijuana that was legal under state law.

There has been plenty of criticism of Sessions's new position, including from my co-bloggers Ilya and Jonathan here. One major line I've seen in defense of Sessions's action is that his position is truer to the rule of law: Maybe Congress should decentralize marijuana policy, the argument goes, but until it does the executive branch should be enforcing the law, not suspending or dispensing with ones it thinks are unwise.

As a general principle, I think there is a lot to that. But in this case, I do not think the rule of law requires the renewed enforcement of the Controlled Substances Act, and if anything requires the opposite. My reasons are detailed in my three-year-old paper on marijuana federalism, State Regulation and the Necessary and Proper Clause, but there are two key points:

First, the Constitution does not allow Congress to regulate all in-state marijuana, and the Supreme Court should not have said that it does. Congress's enumerated powers are to regulate interstate commerce, and to pass laws necessary and proper to carrying that interstate regulation into effect.

This means that Congress can ban the interstate drug trade, and it can also police in-state drugs that would spill over into interstate commerce. But that does not mean all in-state drugs. It depends on the circumstances in each state, and it especially depends on how each state regulates the drug and polices possible spillovers. The Supreme Court dismissed the role of states in a footnote in Gonzales v. Raich, but it was wrong to do so.

Second, the attorney general does not have to and should not adopt the Supreme Court's reasoning in Raich as federal law enforcement policy. Members of the executive branch have their own obligation to interpret the Constitution, and if a federal law is unconstitutional in part then the executive branch, no less than the courts, should say so. It is the Constitution, not the Court, that is the ultimate rule of law in our system.

So to be most consistent with the rule of law, what Attorney General Sessions should have done would have been to revise the Obama administration's enforcement guidance so that it was based on the Constitution -- on the limits of federal power to reach wholly in-state activity -- rather than on sheer policy discretion.

I understand the instinct to be wary of excessive executive discretion in law enforcement. But we should not forget that the Constitution is one of the laws that the executive enforces -- and hopefully, above all others.

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  • JesseAz||

    Prof Baude, I think you are reading too much into the actions of Sessions. He didn't create a new policy to go after the drug trade, he merely rescinded a demand not to go after them. He basically is letting the various state federal prosecutors use their own prosecutor discretion instead of demanding unanimity in said discretion. The Colorado prosecutor already stated he has no intention of enforcing federal drug laws there.

  • SimonP||

    Prof Baude, I think you are reading too much into the actions of Sessions. He didn't create a new policy to go after the drug trade, he merely rescinded a demand not to go after them.

    Which is itself reading too much into the directions being rescinded, but I'm not surprised to see you don't quite understand that. There was never any "demand not to go after" the drug trade.

  • JesseAz||

    So is the attempted personal attack due to a lack of intelligent response?

    In your view a memo directing all federal prosecutors to ignore federal drug laws in states that legalize has no executive force? Just wow.

  • SimonP||

    So is the attempted personal attack due to a lack of intelligent response?

    No, it's just a commentary on your blatant ignorance and/or stupidity.

    In your view a memo directing all federal prosecutors to ignore federal drug laws in states that legalize has no executive force? Just wow.

    That's not what the rescinded memo said. So.

  • NToJ||

    Since it is apparent you haven't read it, here is the Cole Memo.

  • PeteRR||

    Might I ask a question...How do we legislate prohibition of marijuana via a simple federal statute when it required a constitutional amendment to enact alcohol prohibition?

  • Robert||

    That wasn't actually required, but it was thought that a constitutional amendment would be harder to repeal.

  • Brett Bellmore||

    That's the current sophistry, anyway. Yeah, at the time they thought it was required, or they wouldn't have bothered. They hadn't get gotten as used to rationalizing violations of the Constitution as we are today. It was a long road with many steps to the degraded place Constitutional jurisprudence is today.

  • Sarcastr0||

    I've seen nothing about the history either way, but dismissing someone's historical account out of hand as a made up excuse just because you don't like it is pretty lame.

  • RickSteeb||

    It WAS required, because Wickard v Filburn had not yet emasculated the Tenth Amendment.

  • Robert||

    And you don't think the pressure that was sufficient to get a constitutional amendment would have resulted in a Wickard-like decision on a federal prohibitory statute a decade earlier?

  • ||

    No, I don't. Federal judges still acted in good faith in the teens and twenties.

  • NToJ||

    But since you don't argue in good faith, who cares what you have to say, anyway?

  • JoeGoins||

    When your argument is "the Supreme Court was wrong," that generally means that you are incorrect in your interpretation of the Constitution.

  • BillyG||

    When a court case begins by outright saying that they are interpreting the constitution differently than James Madison intended, we start doubting the reasoning of the courts.

  • ssgcmw||

    Is it your contention that the Supreme Court is ALWAYS right?

  • Careless||

    The "generally" in his post means that is obviously not his contention

  • Morbo||

    The "generally" in his post means that is obviously not his contention

    Might as well have been, since he didn't bother to do any analysis on why this wasn't one of the times the court was wrong.

  • SimonP||

    Will's argument is actually pretty nuanced, so I'm not surprised that people aren't quite getting it.

    I think it goes like this: Raich, being a Supreme Court holding, is the law of the land. Congressional statutes purporting to regulate all intrastate commerce in marijuana, then, are constitutionally authorized, as a matter of law. So the DOJ and AG are within their constitutional authority, as a matter of law, when they crack down on all forms of intrastate commerce in marijuana, even if that ought not to be within their constitutional authority.

    Raich notwithstanding, the DOJ and AG retain a certain constitutionally-permitted and required prosecutorial discretion within which they can act. And, within that discretion, they can make a judgment to either enforce to the full limit of constitutional authorization, as a matter of law, or enforce to a lesser extent (subject, one might gather, to the a lower bound that they don't so under-enforce a law that they could be said to be usurping the legislative function). I believe that Will is positing a kind of subsidiary or secondary level of constitutional authority, here, where the DOJ/AG can decide, within their legitimate prosecutorial discretion, to exercise their legal authority consistent with a "truer" constitutional interpretation than the one that is currently the law. So, more consonant with a "rule of law" that transcends simple adherence to Supreme Court precedent.

  • Bored Lawyer||

    I understood that to be Baude's argument.

    The problem with it is that it ignores the third branch of govt., Congress. Congress certainly could decide that it does not want to outlaw marijuana, or, in the interests of federalism, allow it in those states that allow it, and only ban interstate shipments.

    But Congress has not done so. It outlawed any marijuana anywhere. And the Supreme Court upheld that as proper under the Commerce Clause.

    So now the Executive branch should feel obligated to enforce those laws. It strikes me as very dangerous that the Executive branch can decide by fiat that a whole section of federal law can be ignored wholesale, when that law was duly enacted by Congress within its Constitutional powers.

    (As some pointed out in another thread, this is not the same as prosecutorial discretion. That is a case-by-case assessment that it would not be just to enforce the law in a particular case. Not a blanket permission to ignore federal law.)

  • SimonP||

    It strikes me as very dangerous that the Executive branch can decide by fiat that a whole section of federal law can be ignored wholesale, when that law was duly enacted by Congress within its Constitutional powers.

    I don't know how you can properly understand Will's argument and then come to this assessment. I don't think he's proposing that the DOJ/AG decide to ignore "a whole section of federal law" "wholesale." Indeed I don't think he's even approving the Obama-era policy of focusing enforcement efforts on particularly egregious examples of where marijuana growing or trafficking implicates other enforcement priorities. I think what he's saying is that, where Congress has failed to specifically direct the allocation of enforcement resources, and where the President retains a degree of prosecutorial discretion, it makes sense for the President to exercise his authority only within that narrow band of discretion, in a way that arguably better conforms with "true" constitutional authority.

  • JesseAz||

    I've noticed you attempt to do a lot of personal attacks in these threads. Compensation for something?

  • SimonP||

    There's no personal attack in my response to Bored Lawyer.

    I'm not "compensating" for anything by insulting you directly. I'm just expressing my frustration that a moron like you doesn't know his place.

  • Sarcastr0||

    Yeah, Jesse.

    I'm not sure the name-calling is helpful, but your purposeful continued obtuseness about what the Obama administration directed has not covered you in glory.

  • SimonP||

    I'm not sure the name-calling is helpful,...

    "Helpful" to what end? I haven't seen any indication that JesseAz deserves the benefit of the doubt that he's someone who can be reasoned with, or convinced with good reasoning and proper evidence. Avoiding invective in my comments to him only serves to treat him with a degree of respect he hasn't earned and doesn't deserve, which pollutes the conversation more than my incendiary rhetoric does.

    No, JesseAz needs to understand that his idiocy is as blatant as it is profound. He's always welcome to demonstrate otherwise - I maintain an open mind - but until he acts like an intelligent adult, there's no reason to handle him with kid gloves.

  • juris imprudent||

    It outlawed any marijuana anywhere. And the Supreme Court upheld that as proper under the Commerce Clause.

    And there is the problem, Congress does not have that power under any sane reading of the CC. To get there you must rely on Filburn, which contends with Dred Scott and Plessy for all time SC howler.

  • Sevo is my bitch||

    Raich is then the consummate example of legislating from the bench.

  • Josh R||

    I took Baude to argue that prosecutorial discretion is not the appropriate way to affirm the Cole memo, but rather the DOJ should justify the memo based on SCOTUS being wrong in Raich. I agree with Bored that is a dangerous argument because it logically means the DOJ could refuse to enforce any law which it deems unconstitutional even though SCOTUS has upheld the law.

  • NToJ||

    Presidents and Congress fight. Those fights are completely anticipated within the architecture of the Constitution, which had the foresight to arm both with sufficient means to do war against one another. As Justice Scalia has noted:

    "To be sure, if Congress cannot invoke our authority in the way that Justice Alito proposes, then its only recourse is to confront the President directly. Unimaginable evil this is not. Our system is designed for confrontation. That is what "[a]mbition . . . counteract[ing] ambition," The Federalist, No. 51, at 322 (J. Madison), is all about. If majorities in both Houses of Congress care enough about the matter, they have available innumerable ways to com-pel executive action without a lawsuit—from refusingto confirm Presidential appointees to the elimination of funding. (Nothing says "enforce the Act" quite like ". . . or you will have money for little else.") But the condition is crucial; Congress must care enough to act against the President itself, not merely enough to instruct its lawyers to ask us to do so. Placing the Constitution's entirely anticipated political arm wrestling into permanent judicial receivership does not do the system a favor."

  • NToJ||

    (cont.)

    Further, to the extent y'all invoke "dangerous argument" to mean the Court should do something about it, Scalia was also spot on about the pointlessness of that remedy:

    "And by the way, if the President loses the lawsuit but does not faithfully implement the Court's decree, just as he did not faithfully implement Congress's statute, what then? Only Congress can bring him to heel by . . . what do you think? Yes: a direct confrontation with the President."

  • Josh R||

    So, the President should be able to ignore a SCOTS decision and refuse to enforce a law based on his belief it is unconstitutional, and that's the way it is unless Congress feels strongly enough to punish the President in some other way (funding, appointments). In modern times, it is very hard to get a consensus in Congress to take such actions. Thus, your approach may tip the scales too much towards the Presidency.

  • NToJ||

    "So, the President should be able to ignore a SCOTS decision and refuse to enforce a law based on his belief it is unconstitutional..."

    The Constitution contemplates an independent review by the President of constitutionality. The President's oath of office imposes a duty on the President to defend the Constitution. If the President subjectively believes that law X is unconstitutional, the Constitution requires the President not to enforce it.

    Now, should Presidents just ignore every law they don't like? No. Should they aggressively invalidate laws under whatever pet theory of constitutional interpretation they have? No. Because there are other constraints on the President, like governing norms about respect for political opponents, humility, etc. There are also constitutional restraints, like coordinate branches, comity, separation of powers, SCOTUS decisions, and Congress's power to directly confront the President. And there are elections.

    "In modern times, it is very hard to get a consensus in Congress..."

    That's because, in modern times, Presidents have generally honored Congress's wishes, express or implied. Did you consider that the reason Congress never did anything about the Cole memo is because... they agree with it? Do you think Republicans in Congress are universally happy about Jeff Sessions rescinding the Cole memo?

  • Josh R||

    Leaving aside whether Trump adheres to governing norms, your point about the President generally honoring the wishes of Congress is well taken. Are there any modern (say from 1930 on) examples of a President expressly defying SCOTUS and Congress?

  • NToJ||

    Nobody wants to expressly defy SCOTUS. We need to be clear about what that means though. If SCOTUS says "X is unconstitutional" very few Presidents are going to do X. Jackson did it, Lincoln did it, and maybe FDR did it, under exigent circumstances.

    Presidents defy Congress all the time. Signing statements, Nixon destroying tapes, etc.

  • Josh R||

    As I understand Baude, he is saying the President should refuse to enforce X when the President believes it is unconstitutional even though SCOTUS has said it is not unconstitutional. Has that ever happened before?

  • steeltown lad||

    This argument is exceedingly odd, making me think that it is originating in one of those states that have done the legalization. Here we have a federal law (which many think is bad policy, but whatever...) which has been upheld by the Supreme Court (which a law professor and others think was wrongly decided, but whatever...) and the argument is that Presidents have an independent bite of the apple as to the constitutionality of which laws to enforce, which in turn, under the Constitution, relieves the executive branch of any responsibility of following the law that Congress has enacted and that the the Court has upheld if the President doesn't like it. (Not that he'd do that very often, just in matters of great import like smoking dope.) A concept of profound and in theory universal applicability, which would allow the President to be governed not by laws or court decision but only by his own sense of propriety and his own view of the Constitution. And if Congress is aggrieved then they can hold up appointments (which the President can just go ahead and make anyway) or cut off funding (though the President can just direct Treasury to print greenbacks to spend) or even IMPEACH the President (in which event the President can have the Air Force shoot a couple of J-DAM's into the Senate chambers, that'll teach them!) Have I got that right?

  • Michael Hihn||

    Trump would love to be an emperor!

  • Jerry B.||

    So you support Dred Scott vs. Sandford?

  • swood1000||

    When your argument is "the Supreme Court was wrong," that generally means that you are incorrect in your interpretation of the Constitution.

    So, "Dred Scott was wrong" is an incorrect interpretation, and every time the Supreme Court overrules itself is an incorrect interpretation.

  • Sarcastr0||

    Interesting choice of case.
    Because Dred Scott indirectly led to a Constitutional Amendment to correct it, so I don't know what it was wrong, at least from an originalist point of view.

    I'd have gone with Korematsu.

  • swood1000||

    Because Dred Scott indirectly led to a Constitutional Amendment to correct it, so I don't know what it was wrong, at least from an originalist point of view.

    Dred Scott said that Congress had no constitutional authority to ban slavery in the western territories, which is what it attempted to do, resulting in depriving Mr. Sandford of his slave.

    However the Property Clause of the Constitution does give Congress that authority:

    The Congress shall have power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

    Furthermore, the majority said "A free negro of the African race, whose ancestors were brought to this country and sold as slaves, is not a "citizen" within the meaning of the Constitution of the United States." But the Constitution says no such thing.

    Among other reasons.

  • swood1000||

    Because Dred Scott indirectly led to a Constitutional Amendment to correct it, so I don't know what it was wrong, at least from an originalist point of view.

    The fact that it led to a Constitutional Amendment to overturn it doesn't mean that it was a correct interpretation, or that it was regarded as such, any more than a Constitutional Amendment to overturn Korematsu would indicate anything about its correctness.

    By the way, listen to the entertaining More Perfect podcast dealing with Korematsu, which includes an interview with Fred Korematsu and also one with Judge Richard Posner defending the constitutionality of that case.

  • Netizen_James||

    Nonsense.
    The Controlled Substances Act, which was hastily thrown together after the SCOTUS overturned the Marijuana Tax Act as unconstitutional in /Leary v US/, is fundamentally unconstitutional, in that there is nothing in the Constitution which gives the federal government the authority to regulate noncommercial intrastate activities - like planting a seed in your own garden for your own consumption. Attempts to pretend that intra-state commerce is interstate are mere legal fiction - similar to the 'legal fiction' that underlies Civil Asset Forfeiture.... The author is completely correct that /Gonzales v. Raich/ was a horribly wrong decision - up with /Dred Scott v. Sanford/, /Buck v. Bell/, and /Kelo v. City of New London/ in the list of 'bad sc decisions'.

    The interstate commerce clause cannot be used to reach NONcommercial activities like harvesting herbs from your own window-box garden for your own consumption. No matter how many patients Jeff Sessions wants to watch die in horrible pain for his evil amusement.

    When your argument is 'the Supreme Court cannot be wrong', that generally means that you have very little knowledge of history, or how many times the court has reversed itself.

  • Michael Hihn||

    Scotus is never wrong in the sense that their rulings are final.

    that generally means that you have very little knowledge of history

    This is about the Constitution, not history. Checks and Balances. Three co-equal branches. Despite the KKK-inspired meanderings of Ron Paul

  • Ohio Farmer||

    I agree with this post, in theory. But let's test out this theory in another context: a Kentucky clerk refusing to issue same-sex marriage licenses:
    First, the Constitution does not require states to recognize same-sex marriages, and the Supreme Court should not have said that it does.
    Second, the clerk does not have to and should not adopt the Supreme Court's reasoning as state policy. Members of the state executive branch have their own obligation to interpret the Constitution, and if a state law is constitutional then the state executive branch, no less than the courts, should say so. It is the Constitution, not the Court, that is the ultimate rule of law in our system.

  • regexp||

    the Constitution does not require states to recognize same-sex marriages, and the Supreme Court should not have said that it does.

    Do you believe that the Supreme Court should not have ruled that individuals have a right to marriage? Which is has 14 times. And not - what is your basis for denying that right to same sex couples?

  • BillyG||

    I don't think marriage licenses should exist at all and that the requirement for them is unconstitutional. How does that play for you?

  • regexp||

    At least you are consistent. Wrong but consistent.

    How would you handle spousal privileges? Inheritance? Right to make medical decisions? Child welfare? Spousal pension benefits? or the hundreds of other rules and laws (514 in Minnesota alone) that impact married couples?

  • MatthewSlyfield||

    "How would you handle spousal privileges?"

    Replace it with a more general family privilege and define family as a group of people living together and sharing expenses. Why should parents be forced to testify against their children or children against parents.

    "Inheritance?"

    There's this thing called a will.

    "Right to make medical decisions?"

    Power of attorney for health care.

    "Child welfare?"

    Already has nothing to do with the marital status of the parents.

    "Spousal pension benefits?"

    Up to the pension provider.

  • Sevo is my bitch||

    There are 1138 rights that two people married to each other acquire, without having to make a will, designated a proxy, etc.

    Denying that marriage to two people based on their sexual orientation is not equal treatment.

  • MatthewSlyfield||

    "Denying that marriage to two people based on their sexual orientation is not equal treatment."

    True, but removing that government sanction from everyone would be equal treatment.

  • Rev. Arthur L. Kirkland||

    Equal treatment in the service of low-grade bigotry?

  • juris imprudent||

    No one acquires rights via marriage. There are contractual shorthands in the law for that institution.

  • JesseAz||

    Regexp why do you insist the only way to handle those issues is from non defined contracts developed by family court, and others, after the termination of a partnership or death? It would be a lot simpler to have.... Contracts. There could be generalized contracts created by the government outlying terms of a partnership. I don't get why this is so wrong. Let's let people know what they are getting into from the onset instead of the awful post determination of agreements.

  • nonzenze||

    Marriage isn't just a contract. I cannot contract with someone to have them inherit my SSI benefits.

  • MatthewSlyfield||

    If we remove all government sanction from marriage, there is no reason why the government couldn't allow you to specify with the SSA any beneficiary you wanted for survivors benefits, or allow for same in a will.

  • Robert||

    Does removing all gov't sanction from marriage include refusing to adjudicate cases where the fact of marriage is in question?

  • Robert||

    I don't think the state should license marriages, but that doesn't mean the courts aren't going to have to decide in some cases the fact of whether person A is married to person B. Unless you have anomist anarchy, law's going to be involved. That's why you have in-laws & outlaws, isn't it?

  • JuliaMottram||

    Since you apparently have the critical reasoning ability of a three-year old, let me put Ohio Farmer's post in a three year old's language so that you can understand:
    If a state does not have to obey the Supreme Court ruling giving Congress the authority to regulate in-state Marijuana because the Supreme Court was "wrong" to rule that way, then any state can nullify any Supreme Court ruling because it thinks the ruling is "wrong". Who would have thought that Will Baude would come out in support of Roy Moore?
    Who would also have thought that Will Baude would come out in support of Andrew Jackson's position that "Members of the executive branch have their own obligation to interpret the Constitution," particularly given the Conspiracy's love of judicial supremacy?
    This is the kind of posting that first-year law student should be ashamed to make, much less a law professor.

  • Drewski||

    When SCOTUS says that the First Amendment gives me the right to march with the KKK, does it become mandatory that I do so?

    When SCOTUS says that the Commerce Clause gives the US the authority to regulate certain commerce, does it become mandatory that they do so?

    (Hint: These questions have the same answer.)

  • Sarcastr0||

    I never understand those who weave in insults and substantive engagement.
    =================
    I find it quite easy to distinguish between the Federal executive choosing to execute it's law enforcement powers in deference to a stat'es policy and a state agent choosing to defy the Constitution, as duly interpreted by those charged to do so.

    Don't even need to bring the different underlying policies into it; the situation are completely different.
    ==================
    I don't get your thesis - is Andrew Jackson's understanding a good one or a bad one? I mean, I don't like it, but it would seem you might with your negative invocation of 'judicial supremacy.'
    But then you seem scornful that Baud might like Jackson's interpretation, as it would open up the door to state nullification (which allowing another federal branch to choose federalism does not do BTW).

    This is some iteresting, fundamental statesman stuff. Some clarification would be appreciated.

  • Brett Bellmore||

    "Do you believe that the Supreme Court should not have ruled that individuals have a right to marriage? "

    Of course they do. The problem here was redefining "marriage" to include same-sex unions.

  • SimonP||

    Why do I have a "right" to marry someone of the opposite sex, but not someone of the same sex? Can you explain this in any way that doesn't beg the question?

  • Sevo is my bitch||

    Brett is a vile moron, he can, though with all the bigotry he can muster

  • Brett Bellmore||

    Because that's what the word means, opposite sex was part of the definition.

  • SimonP||

    So, no, you can't explain this without begging the question.

  • JesseAz||

    So easy to win the argument when you define the rules of the game.

  • Sarcastr0||

    Not begging the question is a rule of logic, not some poster playing games.

  • Brett Bellmore||

    Having definitions for words is an essential part of reasoning, Sarcastro. This particular question got begged when the Court allowed part of the existing definition of "marriage" to be removed, (A definition that predates history, and is biologically rooted.) making its conclusion inevitable.

    Remember, we're a sexually dymorphic species, men and women being different is built right into us at a biological level. Social institutions reflect that.

    Polygamists actually have a much, much stronger case, polyamory being much better grounded as part of the meaning of "marriage", and widely practiced throughout history including today, but has the judiciary been friendly to them? I notice not.

    Why not? It's far less of a logical stretch recognizing a form of marriage which has been recognized throughout history, instead of one that was invented something like a decade ago.

    The law does not actually have a logic of its own, it 'evolves' only when and as its practitioners want it to. The founders thought the judiciary the least dangerous branch. Obergefell demonstrates that, if they were ever right about that, they aren't anymore.

  • SimonP||

    This particular question got begged when the Court allowed part of the existing definition of "marriage" to be removed, (A definition that predates history, and is biologically rooted.) making its conclusion inevitable.

    But the question I had asked you was how we can have a "right" to marry someone of the opposite sex, but not a "right" to marry someone of the same sex. Sexual dimorphism, in itself, does not answer this question, because that is a question of biological fact, not philosophical, legal, or normative. What's more, even if we were to derive an "ought" from this "is," you're cherry-picking from the biology - why would we, for instance, focus on "sexual dimorphism" but ignore the complexity of expressed sexual behavior and preferences?

    The reasoning you're employing here is really indistinguishable from that used by opponents to miscegenation. They, too, focused on some biological factors to the exclusion of others, in order to reach some point about what "marriage" should be "defined" to mean.

  • Brett Bellmore||

    You asked a question I'd already answered: Because "opposite sex" is part of the definition of "marriage". Marriage is a legal or sacramental formalization of mating, and mating is between people of the opposite sex. The opposite sex part is baked in as a reflection of our being a species with sexes.

    You can't have a right to "marry" somebody of the same sex, any more than you can have a right to sleep furiously. It was a logical contradiction based on the meaning of the word. Until the judiciary decided to redefine it, by removing part of the definition.

    It's not like miscegenation, because there was never any question that people of different races could marry, and had all throughout history, some people just wanted to forbid it.

    Why am I concerned about this? Because, once the judiciary can arbitrarily redefine words to mean something radically different from what they once meant, whatever constraint the language of the law had on their rulings vanishes.

  • SimonP||

    @Brett 1/2

    You asked a question I'd already answered:

    And what you're failing to appreciate is that our "rights" do not derive from the happenstance of etymology. Our rights logically precede the words we use to describe them. To respond that there's no "right" to "marry" someone of the same sex because that's not what "marry" means is transparently to say nothing at all. You're just saying, "It's 'cause you can't."

    To see this, consider an alternative term, murriage. Murriage is in every respect exactly like (what you call) "marriage," except that it is not contingent upon the sex of the parties. So, every married person is also murried, and every marriage is a murriage; but not every murried person is married. A murriage is also a marriage only if the partners are of the opposite sex.

    So - do we have a "right to murry"? You'll hopefully see that it makes no sense to say, "No, because you just invented that term, which would otherwise have no meaning," because even that being so, we can sensibly speak of the underlying concept. We answer that question, instead, by asking whether the "right to murry" can be validly derived from whatever the source of our "rights" happens to be.

  • SimonP||

    @Brett 2/2

    And so, the question is, if we have a "right to marry," what is that right's connection with the source of our rights, and what putatively distinguishes that connection from the "right to murry"?

    I take the position that we have the "right to marry" because we have a right to associate with whom we please; to do what we like with that person; to arrange our life's affairs with that person (including sharing property, etc.) as we please; and so on. These are instances of our rights to association, privacy, and property, respectively. But I can't think of a single reason why our fundamental rights would be limited in this respect to doing all of that only with a person of the opposite sex. So it seems to me that, if we have a "right to marry," we must also have a "right to murry."

    The question then becomes whether, as a matter of constitutional law in the U.S., we have a fundamental liberty interest in murriage as well as marriage. Again, this cannot be determined just by looking at the terms the Court happened to use in its holding; the question is, rather, whether murriage is as fundamental a liberty interest as marriage has been held to be. For the same reasons I've above outlined, we see that it is. The Supreme Court cited many of the same factors in reaching its conclusion that marriage must be treated as a fundamental right, for purposes of the Constitution.

  • Sarcastr0||

    The argument devolving into who is question begging tells you how these semantic arguments become individualized litmus tests, and not some debate over objective truth, no matter how vehement you are about logic, or how you try and reframe marriage to be between two people of differing sexual dimorphisms.

    Given that aspect, the Supreme Court maximizing the enfranchise of marriage is in keeping with America's exceptional inclusiveness.

    I agree there is no Constitutional way to distinguish polygamy.

  • Josh R||

    Kennedy said "four principles [...] demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples:

    1) "[T]he right to personal choice regarding marriage is inherent in the concept of individual autonomy."

    2) "[I]t supports a two-person union unlike any other in its importance to the committed individuals."

    3) "[I]t safeguards children and families."

    4) "[M]arriage is a keystone of our social order."

    The four principles provide the basis for determining the scope of the constitutionally-protected right of marriage. Polygamy is likely not protected, and not just because of #2 (polygamy might fail #3 and #4 as well).

    Of course as applied to polygamy, #2 begs the question. And if you think about it, all four principles beg the question. But, how can you analyze any of these cases without some marker as to what marriage is.

  • Brett Bellmore||

    Exactly my point: In Obergefel, the judiciary changed what marriage was, subtracted from it a key part of the definition. And did so in the teeth of desperate efforts to stop them via the democratic process. One state after another saw successful democratic initiatives to foreclose what the judiciary were doing, as soon as it became evident what the judiciary were up to.

    You can hate the outcome or love it, from a policy stand point, but from a process standpoint what the Supreme court did was nightmarish, the exact opposite of what the judiciary is supposed to be doing: Enforcing the rules the democratic branches create.

  • Josh R||

    I don't think SCOTUS changed the definition of marriage in Obergefell. I think there was already a broad consensus that the four principles are a correct description of marriage.

  • Brett Bellmore||

    " the Supreme Court maximizing the enfranchise of marriage is in keeping with America's exceptional inclusiveness."

    But the Supreme court's rule in our government is not to validate our "exceptional inclusiveness", but rather to function as a court, enforcing laws others have created. Leaving the creation and modification of law to the elected branches.

    If marriage had been redefined by legislature or popular initiative to include unions between two people of the same sex, it would have been quite proper for the Supreme court to uphold this against legal challenges.

    But what happened was that the judiciary changed the definition of marriage in the teeth of widespread democratic opposition. Imposed the legality of SSM upon a nation which was doing it's best to stop the courts from imposing it via the democratic process.

    This is not what courts are supposed to be in the business of doing.

  • Sarcastr0||

    You have a situation where the understanding of the word, being tied up in identity and religion, is subjective.
    As such, the Court needs to look at principles outside the semantics to make a decision. I may not like Kennedy's writing, but his procedure makes sense.
    In fact, that kind of determination is exactly what courts in a Constitutional republic should be doing.
    ====================================
    Your argument that the word hasn't changed and is thus being redefined by the court ignores how words work, and how marriage has worked historically.

  • Kroneborge||

    "Do you believe that the Supreme Court should not have ruled that individuals have a right to marriage? Which is has 14 times. And not - what is your basis for denying that right to same sex couples?"

    Of course everyone always had the right to marry, they were just required to marry people of the opposite sex. IE they were all treated equally.

    Now maybe you believe that right should extend to same sex couples, and that's fine. But your argument that they weren't being treated equally is BS.

    Also, if anyone had a argument for legalization it was polygamy which did have a long history of being defined as marriage

  • Josh R||

    Straights could marry the person they love. Gays couldn't. Does that sound like equal treatment to you?

  • shawn_dude||

    "Of course everyone always had the right to marry; they were just required to marry people of the same race. IE they were all treated equally."

    https://en.wikipedia.org/wiki/Loving_v._Virginia

    Didn't work in the 1960s. Didn't work in 2015.

  • Drewski||

    There's a difference between the Court saying "the government may legally do x" and "the government must do y". You can see the difference, right?

  • SimonP||

    Second, the clerk does not have to and should not adopt the Supreme Court's reasoning as state policy.

    This step doesn't work, because the clerk in question hasn't retained the discretion to disregard valid constitutional law.

    In the case of Raich, the Supreme Court has endorsed a constitutional theory that authorizes broad congressional and executive authority to criminalize intrastate marijuana commerce. However, the DOJ/AG retain prosecutorial discretion not to fully exercise that authority. Will is arguing that, in opting not to exercise that authority, the DOJ/AG can and should limit themselves to the proper limits of the Commerce Clause, rather than exercising the full authority permitted by Raich.

    The clerk of your hypothetical is not subject to an overbroad authorization, but an overbroad prohibition. The clerk therefore has no decision to make, in terms of exercising any degree of discretion.

  • NToJ||

    The Kentucky clerk is not a constitutionally coordinate branch of government with Congress, the Judiciary, or the Executive.

  • Netizen_James||

    The Constitution DOES require States to recognize Same-sex marriages. Just like Loving v Virginia required States to recognize interracial marriages, even though some people though those were 'icky'.

    Have you even READ the decision you're so blindly decrying?

    Have you bothered to actually read the Constitution and all of its amendments?
    Did you miss the bit about States not having any authority to violate the rights of US Citizens residing within that State? Did you miss the fact that States are NOT fully sovereign, and cannot just do whatever the frack they want, and cannot interpret the Constitution however the frack they want? Do you really not understand that the fundamentally paradoxical notion of 'shared sovereignty' is the very heart of the American Experiment?

  • steeltown lad||

    Are those rhetorical questions?

    If the Constitution, perhaps as amended by the 14th, "requires" States to recognize same-sex marriages, it is a requirement that was inherent in the Constitution, or as so amended, the moment in time that document, or amendment, was ratified. Baked into the fabric of the document. Yet at all of those times homosexuality was a crime in each of the States that was doing the ratifying. Certainly there was no intention to create a right to permit two individuals to solemnize their vows to criminal behaviour.

    No, like it or dislike it, this "right" is just something that Tony Kennedy made up one day.

  • Michael Hihn||

    No, like it or dislike it, this "right" is just something that Tony Kennedy made up one day.

    Yeah, nobody had ever heard of equal rights, which the 14th amendment DOES require - explicitly as a mandate on states.

    But the 9th Amendment had always forbidden ALL levels of government to "deny or disparage" even rights unenumerated in the Constitution, That's how the Declaration's "unalienable rights" are incorporated into the Constitution -- Life, Liberty, Pursuit of Happiness, and all the many others.

    Also in our Constitution, EVERYTHING is permitted UNTIL it is challenged and ruled against. Even "Tony Kennedy" knows that. along with most high school students. For example Congress could pass a law, if signed by the President, legalizing the raping of 6-year-old girls in Pittsburgh -- and it would be totally enforceable ... unless and until it was challenged in the courts. And "Tony" would need 4 other Justices to agree with him in striking it down..

  • Robert||

    It does support it—but I don't think that's what you've got there. I'm afraid the decision to prosecute would have to be made based on the facts of each case, not on the state's laws. The consequences of the action by the violators should be takn into acc't. I don't think the consequences really differ based on what the state law is. What would be more readily justified is not prosecuting cannabis cases at all on that basis, because the consequences of its use are nil, & there's enough on the official federal record to sustain that, starting with the commission that reported on it 45 yrs. ago. In other words, as long as there's practically any other single violation of the CSA going on, that should be prioritized over any cannabis case. The same could then be said of LSD & several other controlled substances.

  • BillyG||

    "This means that Congress can ban the interstate drug trade, and it can also police in-state drugs that would spill over into interstate commerce."

    I don't think it means they can ban the interstate drug trade. They have the power to regulate (make regular, consistent) interstate commerce, they don't have the power to prohibit it. The Supreme Court bowed to FDR when it allowed congress to have more power than ensuring interstate commerce was consistent and gave them control over all interstate commerce and anything that touched it.

  • SimonP||

    I don't think it means they can ban the interstate drug trade.

    One of the interesting but relatively unexplored aspects of Roberts's opinion in NFIB, I think, is that if the Commerce Clause must be read not to extend to authorizing Congress to compel people into interstate commerce, because that's not what "regulating" means, then it must also be the case that Congress can't ban any particular form of interstate commerce.

    Unlike other VC'ers, I take the view that Roberts's opinion on this point isn't controlling, but I'd think it an excellent way to hoist the statist conservatives on the Supreme Court on their own petard.

  • Josh R||

    I'm not following why the constitutional prohibition on compelling people into interstate commerce logically implies it must also be unconstitutional to ban people from entering into interstate commerce?

  • SimonP||

    Because Roberts's argument turned on the meaning of "regulate" in the Commerce Clause, which was in line with BillyG's definition (to make regular or consistent). Roberts argued that being authorized to "regulate" interstate commerce does not include the authority to create interstate commerce where it did not otherwise exist. But if that's true, it's also hard to see how the authority to ban interstate commerce can be consistent with an authority limited just to "regulating" (i.e., making regular or consistent) interstate commerce.

  • Josh R||

    I don't think Roberts relied on "regulate" meaning to make regular or consistent. He merely stated that "The power to regulate commerce presupposes the existence of commercial activity to be regulated."

  • SimonP||

    Having reviewed Roberts's opinion in this respect, I must concede that you are correct. My memory was hazy and I apparently recalled only what I wanted to. Roberts consistently speaks of the authority as being to regulate existing commerce. Indeed, the drafting is precise on this point; I couldn't even find a lapse in the language that one could "spin" to support my assertion (suggesting that he might have been well aware of where people like me might want to pull the reasoning).

    I still think there might be an (admittedly strained) argument in favor of my interpretation, but I must acknowledge that Roberts's dicta in NFIB is easily distinguishable from the authority endorsed by Raich. Sadly.

  • Robert||

    All these opinions on national powers rely on some concept of aggregation. They throw a loop around certain things and say Congress may view them as a bundle rather than according to the individual case. They say something like the Controlled Substances Act is a comprehensive scheme of regulating trade in certain substances, and that regulation means prohibiting some things while allowing others. It seems as if all it takes is for a single, even imagined, action to be legal by such a statute and then the prohibitions in it within the constitutional meaning of "regulate". So, for instance, because cannabis is categorized as among other substances in the consolidated statute, the fact that there's a legal trade in some of the substances means it's just a "regulation" on "controlled substances" generally. It's like they're saying, you have legal substitutes for marijuana among the other substances, trade in or use those instead. It's like banning a defective version of a consumer product in the sense that cannabis is a defective version of "drug or other substance". Or, because the discretion still exists for trade in marijuana to be licensed for certain purposes, it's a regulation rather than a ban.

  • great Unknown||

    Wondeful; replace "marijuana enforcement" with "abortion rights", and we have a deal.

  • Drewski||

    Hmm. Is there a difference between a decision that allows a discretionary act and a decision that prohibits an act? I tend to think there is, but it seems you disagree.

    For example, the law here says I may ride a bicycle on most sidewalks, and the law says I may not steal things. If I choose to walk, because I disagree with the bicycle law, does that mean I believe people may steal? I mean, they're both laws, right?

  • Michael Hihn||

    Abortion is totally different. A conflict between two unalienable rights -- Life and Liberty -- which are precisely equal -- in that neither can EVER be taken away, for ANY purpose, which is what unalienable means.

  • DKWalser||

    I agree with Professor Baude that the Supreme Court's application of the commerce clause leaves a lot to be desired. I disagree with him that the AG should simply ignore it. I disagreed with Obama on many policy issues and I agreed with him on many others. What I found absolutely abhorrent was his practice of simply ignoring parts of the Constitution (as historically applied by the courts) when it suited his purposes.

    For too long Congress has gotten away with writing horribly offensive laws by relying on the discretion of the executive to not enforce them. This has enabled minor tyrants to to force unjust plea bargains onto our fellow citizens whose only crime is to have earned the tyrant's ire. I'd prefer that the executive err on the side of faithfully executing the law as written. If it did so, Congress would be forced to spend the next couple of clear-cutting vast swaths of the forest of laws it has erected without fully expecting they'd be fully enforced.

  • Josh R||

    What parts of the Constitution did Obama ignore? Can you give examples?

  • Sam Gompers||

  • Josh R||

    The common theme is the use of statutory interpretation to affect policies that Obama couldn't explicitly get from Congress. I'm shocked, shocked to find that the President, any President, would do such a thing.

  • ravenshrike||

    That's nice. It would even be true if Wickard v Filburn never existed.

  • ReaderY||

    In Raiche v. Ashcroft, the Supreme Court ruled against your position in all respects. If you want to make legal argument, I think the thing to do here is start with its decision and explain why you think it's wrong and moreover, why you think it merits being overruled. Simply pretending it never happened, and waxing eloquent about how the Executive is acting unconstitutionally when it has clear precedent behind it, strikes me as behavior a law professor shouldn't engage in.

    If you want to make a political argument that Congress should change the law or the Executive should reneg on its law-and-order ampaign promises and not enforce it, be my guest and make a political argument. But don't put on your law Professor robes, dress your argument in legal language, and give the public the impression you're offering a legal opinion about the law of the land that supposedly bonds the Administration. They're bound by no such thing and you know it.

  • mydisplayname||

    Amen.

    The author's two-part assertion -- that "the Supreme Court should not have said that" and that "the attorney general does not have to and should not adopt the Supreme Court's reasoning [...] as federal law enforcement policy" -- is a political, not legal (or logical, for that matter), argument. JuliaMottram makes a similar point above.

    Having said that, I -- like Justice Breyer, of all people -- do believe both that "members of the executive branch have their own obligation to interpret the Constitution" and that our elected legislators can be forced, on peril of loss of office, to repeal unpopular statutes.

    So if a statute is unpopular, why does it remain standing? Conversely, if a statute is overwhelmingly popular, why does it go unenforced?

  • NToJ||

    There is no "Raiche v. Ashcroft". There was an Aschroft v. Raich which became Gonzales v. Raich.

    "If you want to make legal argument, I think the thing to do here is start with its decision..."

    That's... what he did. Here is the OP's argument. The discussion of Gonzales v. Raich begins in the third full paragraph. The first heading (I) discusses that case at length.

    "Simply pretending it never happened..."

    You mean like you pretending this wasn't in the OP? "The Supreme Court dismissed the role of states in a footnote in Gonzales v. Raich, but it was wrong to do so."

  • RickSteeb||

    Clarence Thomas explained why Raich v Ashcroft was wrong, in his dissenting opinion. Thomas was CORRECT.

  • AJ_Liberty||

    Raich's logic rested on the fungibility of pot....that there was no way to differentiate marijuana being grown for local use from marijuana being grown for interstate sale.....and the ability to police the one in a comprehensive manner, ensnares the other......this was then coupled to "the fact" that the black market demand for marijuana was such that it would be inevitably pull "locally intended" marijuana into interstate sale. To me, this logic has a very tenuous limiting principle.....and virtually devours any notion of ANY market being truly intrastate...and beyond federal regulation (the limit would be that not all goods presumably have this black market pull).

    Could Raich be revisited and reversed or narrowed? Well, Stevens and Souter have been replaced by Sotomayor and Kagan....and Scalia by Gorsuch...so absent Kennedy retiring there still seems to be 5 interested votes to maintain the status quo. There still doesn't appear to be enough votes to pull rescheduling pot out of Congressional committee and bring it to a full vote. So despite public opinion polls showing ~57% of the public supporting treating pot differently, the votes aren't there.

  • AJ_Liberty||

    (cont)
    It seems dangerous for the Executive to unilaterally disregard the will of the Legislative CSA or for it to selectively follow the legal conclusion from Raich. Either change the law or work the Executive path rescheduling process as shown in a Feb 13, 2015 Brookings article (that sadly could not be linked because of character limitations on the link)

  • Robert||

    The chief trouble w administrative rescheduling is that it seems psychoactives control treaties require cannabis to be in one of the control schedules, & that it be restricted to medical use. If the states then take the requirements seriously, then even if it lands in schedule 5, that means it could legally be dispensed only by pharmacists, must be signed for by the buyers, & that the pharmacist must believe it is intended for medical use.

    I suppose there'd still be possible workarounds. The att'y gen'l could deem certain specific prepar'ns of cannabis as having no significant potential for "abuse", & they would then be allowed to be sold w/o controls. That should certainly work for low-THC hemp. Not clear whether the att'y gen'l could do that for prepar'ns that'd be intended to be used for their psychoactivity.

    But if any of these articles are intended for medical use, they become drugs under state pharmacy laws & the FFDCA. Medical marijuana has co-existed w state pharm boards & the FDA only according to the fiction that it is not for drug use, despite specific state laws saying it is for treatment of disease.

    Simpler would be an administrative finding that the cannabis found in the USA is not "cannabis" as meant in the statutes & treaties. They intended to control some other plant, which current experts have found is not what's in commerce now.

  • AJ_Liberty||

    I agree that the treaty aspect limits the Executive track route for eliminating cannabis from the CSA or significantly downgrading its Schedule. They must also get the DEA to find a clear medicinal use for cannabis (heck, even cocaine satisfies that). I'm not up on this research...though we got a negative report on cannabis from the DEA in 2016. Some say that its CSA status frustrates setting up the size of trials necessary to make the case. I don't know, but it also remains a practical impediment.

    I still think the proper approach here is change the law through Congress. Reversing Raich would be nice as well...but that seems like a bridge too far right now. Executive enforcement should focus on clear cases of interstate commerce. I support finding out what we can from the state experiments and letting that knowledge better inform our federal law.

  • Robert||

    Congress definitely has the only really appropriate control knobs here. It's amazing how they'll dance all around issues in an apparent effort to feed hypocrisy and/or confusion and/or biz for lobbyists. But I would find it hilarious if some day the jam was broken an administrative determination like the one I described above. They'd put out a news release saying, "Good news: The marijuana that was used by previous generations is not found in commerce in the states where its possession, production, and sale is legal. The current product sold there by that name is different and poses none of the dangers that Congress found in the old product, so it is not subject to the Controlled Substances Act. Your children are now safe in those states."

    There's precedent in that one strategy that was considered when it looked like the 18th amendment would be too hard to repeal was to deem certain alcohol beverages to not be "intoxicating liquors" as written therein. Certain states did adopt limits on alcohol content that allowed for near beer (which actually came close to the ABV of some weaker beers today), and it was thought that possibly all beer could be treated as not an intoxicating liquor nationally.

  • Life of Brian||

    as shown in a Feb 13, 2015 Brookings article (that sadly could not be linked because of character limitations on the link)

    Give this form a shot (without the space before the "a" and "/a" -- had to insert those to keep the site from interpreting it as another link):

    < a href="your.url.com">link text< /a>

    That lets you insert links to long URLs in a short space like this.

  • Goju||

    So where does this whole selective enforcement end up? Who gets to make the choices? How does a law prof make the argument for a nation of laws, except for those he doesn't agree with?

    The marijuana laws are seriously outdated. They are still the law and should be treated and enforced as such. I think enforcing these laws will force Congress to get off the asses and do something to correct this situation. It is, however, highly possible Congress will just make a lot of noise and end up making things worse.

  • Rev. Arthur L. Kirkland||

    So where does this whole selective enforcement end up?

    Lack of prosecution of our most revolting criminals -- torturers?

  • Goju||

    So are you saying you agree with AG Sessions or Prof Baude?

  • Lee Moore||

    I agree that the Attorney General should not enforce laws that he thinks are unconstitutional. (By which I mean laws which he's sure are unconstitutional.) But there are a number of other propositions inherent in Prof Baude's analysis that require more chewing over. What's the answer on :

    1. Laws that both the Attorney General and the Supreme Court think are constitutional, but Prof Baude does not ? The answer from today's post suggests that Prof Baude's opinion should be controlling, but since Prof Baude is usually sane, I suspect he really means that the Attorney General ought to follow Prof Baude's opinion, if he is persuaded by it, but not if he is not.

    2. Laws that the Supreme Court and Prof Baude think are constitutional, but the Attorney General does not ?

    3. Laws that the Attorney General thinks are constitutional but the Supreme Court does not ? (Lest it be argued that this is pointless because the courts will not convict, let us not forget how much punishment can be packed into the process. And let's not imagine a law where we agree with the Supreme Court. Let's take a law that, say, bans people from keeping African Americans away from polling stations with baseball bats.)

  • Michael Hihn||

    Well stated. Baude argues AGAINST the rule of law.
    Is he really a perfesser? (shudder)

  • Lee Moore||

    The other question that occurs to me is that the the headline :

    "The Rule of Law Supports Marijuana Federalism"

    would have been more convincing if "...Rule of..." had been omitted. It's a perfectly plausible view that federal regulation of intrastate pot commerce is unconstitutional. It's a bit more of a stretch to argue that the Rule of Law demands that the Attorney General put his opinion of the law ahead of the opinion of the Supreme Court. The Rule bit of the Rule of Law is not there for decoration. It speaks to a distinction between rule by law and rule by men - that the powerful men in the government will submit to the law, and not subordinate it to their personal rule. It's not obvious that a high government official placing his own personal opinion above the rulings of the highest court is the ideal example of submitting to the rule of law.

  • Michael Hihn||

    What you cite is a bulshit argument for States Rights ... as endorsed by the KKK, southern racists and Ron Paul, among others ... NOT federalism.

  • Brett Bellmore||

    "and it can also police in-state drugs that would spill over into interstate commerce."

    Sad. You start out by recognizing that the interstate commerce clause has been stretched beyond all recognition, and you barely get started before stretching it yourself.

    "that would"; There you go, adopting the anything that might effect interstate commerce interpretation. No, it's the power to regulate actual commerce, which actually IS interstate.

  • LHB||

    Their are many interesting posts below about alcohol prohibition which was ultimately based on a constitutional amendment.

    I'm sure most people can see how insanely ridiculous that seems now (although I've tried to buy a few six packs in dry counties in the south obviously without success). Sorry man, just passing through!

    Our current anti-marijuana laws are very quickly falling into the same "insanely ridiculous" category and not a moment too soon.

    I'm not getting any younger!

  • James in Perth||

    I thought the Supreme Court let the cat out of the bag on regulating "interstate commerce" long ago? That said, this is a very reasonable reaction to the approach the federal government should take.

  • Vandalia||

    I approach this from several different angles:

    1) This is simply more evidence that political philosophy these days is simply a cover.

    2) I do not want to let Congress off the hook for passing too many laws by simply saying that the Executive should simply ignore the bad ones. As long as the laws are on the books, people are at risk of arrest.

    3) I am extremely concerned with the fundamental idea in this post that the Executive Branch should not enforce laws that they believe are unconstitutional.

    At its core, that is precisely what Kentucky County Clerk Kim Davis did in refusing to issue a marriage license to a homosexual couple. If inferior office holders should not enforce laws that THEY BELIEVE are unconstitutional then these situations will be commonplace. Do we want people outside of the judicial branch making these types of determinations? "Well, we can't prosecute the person who threatened an abortion clinic because that would be a violation of the First Amendment (in several different respects.)" Or, "The Second Amendment doesn't support the right of individuals to own firearms, so we shouldn't prosecute the police who barged into a gun owners house without a warrant and stole all of this firearms."

    Our entire system of government is based on the fundamental principle that you can't simply trust officials to do "the right thing."

  • OtisAH||

    Kim Davis refused to do her job, which is different than setting enforcement priorities, because signing marriage licenses for same-sex couples allegedly violated her alleged religious beliefs, not because she believes same-sex marriage is unconstitutional.

  • Michael Hihn||

    Hmm, only if Ms Davis also denies Separation, which would be merely her own false opinion.

    "Yes, I stole that car, but NOT because I believe car ownership is unconstitutional."
    "Oh."

    If religious beliefs were superior to the Constitution .. and if we take the Bible as the literal word of God, then we could.
    1) Kill all the infidels, including brother, spouse, child or friend - (delighting Islamophobes)
    2) Slay every woman who was not a virgin when married. (but not husbands)
    3) And many other moral atrocities.

    Founders not be dumb.

  • NToJ||

    "I am extremely concerned with the fundamental idea in this post that the Executive Branch should not enforce laws that they believe are unconstitutional."

    The alternative is that the Executive should enforce laws that it believes are unconstitutional, which is in direct contravention with the President's oath of office.

    It's a complicated issue and I think the right approach is a meta rule where the President will enforce all laws faithfully unless the unconstitutionality is obvious and apparent. But that's not really what's happening here; Congress has only afforded the Executive sufficient resources to arrest everyone who violates the CSA, so the Executive has plenty of discretion to choose who to arrest. So long as those choices do not run afoul of the Constitution (i.e. the President only arrests, for e.g., Christians who also use illicit drugs), there's no problem. If Congress doesn't like the way the President exercises this discretion, they can do something about it. And if the American people don't like the way the President exercises this discretion, they can promote Donald Trump to the highest office in the land, and suffer Jeff Sessions with him. The American people deserve to get what they want, good and hard.

  • NToJ||

    "I am extremely concerned with the fundamental idea in this post that the Executive Branch should not enforce laws that they believe are unconstitutional."

    The alternative is that the Executive should enforce laws that it believes are unconstitutional, which is in direct contravention with the President's oath of office.

    It's a complicated issue and I think the right approach is a meta rule where the President will enforce all laws faithfully unless the unconstitutionality is obvious and apparent. But that's not really what's happening here; Congress has only afforded the Executive sufficient resources to arrest everyone who violates the CSA, so the Executive has plenty of discretion to choose who to arrest. So long as those choices do not run afoul of the Constitution (i.e. the President only arrests, for e.g., Christians who also use illicit drugs), there's no problem. If Congress doesn't like the way the President exercises this discretion, they can do something about it. And if the American people don't like the way the President exercises this discretion, they can promote Donald Trump to the highest office in the land, and suffer Jeff Sessions with him. The American people deserve to get what they want, good and hard.

  • Eggprd||

    So Prof Volokh If we accept your position on what the commerce clause means then we need no longer concern ourselves with the NICS background check when selling guns within a state?

  • NToJ||

    The original post was not by Professor Volokh.

  • Michael Hihn||

    (loL) That would be as wacky as this post. SOMEBODY must decide if the Constitution is being violated.
    And only the other two branches can violate it, despite tribal mumbo-jumbo from both the left and right.
    That's WHY we have a Constitution.

  • CrispyBacon||

    Notwithstanding Gonzales v. Raich, if you think enforcement under the Constitution "depends on the circumstances in each state, and it especially depends on how each state regulates the drug and polices possible spillovers," how do you deal with the Supremacy Clause issues? Also from a practical standpoint, I don't know how we suss out whether a federal prosecution is precluded before the fact when it would seem so fact-dependent for each case.

  • Robert||

    It would definitely seem fact-dependent by the individual case rather than by state law. But the trouble with prosecutorial discretion about any of this is determining what purpose Congress had in controlling marijuana. If you go by the legislative record, then it seems none of the dangers marijuana supposedly posed exist. Therefore the only way prosecutors could serve the intention of Congress is by not prosecuting cannabis cases or confiscating cannabis at all.

  • Michael Hihn||

    But the trouble with prosecutorial discretion about any of this is determining what purpose Congress had in controlling marijuana.

    Their intent was to ban it.

    If you go by the legislative record, then it seems none of the dangers marijuana supposedly
    posed exist.

    Why would any have to?

    How does dissing the Constitution defend individual liberty?

  • Michael Hihn||

    how do you deal with the Supremacy Clause issues?

    By shitting on the Constitution,m like the KKK, southern racists, Ron Paul and the rest of the Alt-right.
    .
    SOMEBODY has to decide if an action is constitutional. Deal with it.

  • Sarcastr0||

    As has been pointed out with the examples below regarding gay marriage, abortion, and guns, there is a substantial line drawing issue when it comes to nonjudicial branches enforcing their own views of the Constitution.

    For separations of powers to work, When push comes to shove, someone has to be supreme. And the judiciary has more expertise and authority on that issue than the other branches.

    They key is that 'when push comes to shove.' Using already existing flexibility is obviously OK, and arguably commanded. As many are saying here, the argument that the Constitution demands other branches to apply their own understanding even when it contradicts the Supreme Court invites hubris and is in the end anti-republican.

  • NToJ||

    "...the argument that the Constitution demands other branches to apply their own understanding even when it contradicts the Supreme Court invites hubris and is in the end anti-republican."

    This overstates the problem. If The People don't think Congress should regulate X, and believe that a SCOTUS decision interpreting the Constitution to permit regulation of X is wrong, how would they correct it except to elect legislators who share their views? And if the legislature refuses to regulate X on its honest (but mistaken) belief that the Constitution permits the regulation, what harm is being done?

    I think I can get behind your argument, but only if it applies to when the Executive or Legislative branches act inconsistently with a SCOTUS order. Raich doesn't mandate regulation, it simply permits it. If SCOTUS says X law is unconstitutional, and the President seeks to enforce it, that's a different scenario than what we're dealing with here.

  • Sarcastr0||

    Short of revolution, The People don't get to win all the things about the Constitution, no matter how much consensus and passion they have
    That is arguably the whole point of the Bill of Rights.
    -----------
    My argument was indeed about inconsistent action - that was what I was trying to say about 'contradicting' the Supreme Court. Your word is better.

  • RickSteeb||

    "Schedule I Cannabis" is a Damned lie. "Schedule II" will NOT do.

    Cannabis SHALL be removed from CSA "Schedule I", and instead be placed in "CSA Subchapter I, Part A, §802. Definitions, paragraph (6)", appended to the list "...distilled spirits, wine, malt beverages, or tobacco".

    Anything short of that is *ABSOLUTELY* unacceptable.

  • RickSteeb||

    "Schedule I Cannabis" is a Damned lie. "Schedule II" will NOT do.

    Cannabis SHALL be removed from CSA "Schedule I", and instead be placed in "CSA Subchapter I, Part A, §802. Definitions, paragraph (6)", appended to the list "...distilled spirits, wine, malt beverages, or tobacco".

    Anything short of that is *ABSOLUTELY* unacceptable.

  • Michael Hihn||

    In your dictatorship ... not our Constitution. Sorry.
    http://reason.com/volokh/2018/.....nt_7086569

  • Sam Gompers||

    If Congress can regulate the wheat you grow for your own consumption in your own backyard and can also tax you for economic purchases you do not make, then there are no reasonable limits as to what they can and cannot do.

  • Kroneborge||

    Brilliant reasoning, you are so right

  • Sigivald||

    First, the Constitution does not allow Congress to regulate all in-state marijuana, and the Supreme Court should not have said that it does. Congress's enumerated powers are to regulate interstate commerce, and to pass laws necessary and proper to carrying that interstate regulation into effect.

    I wholeheartedly agree - and oppose the Drug War on its demerits, as well.

    I'm not entirely sure, however, that I want the Executive deciding It Knows Better Than The Courts what the True Extent Of The Constitution is ... even when I agree with it, because I lack the power to make sure the Executive only does it under that constraint.

    That the Executive can voluntarily not exercise a power the Supreme Court says it has is true, and a fine bit of reasoning for a less Drug-Warrioring man than Mr. Sessions to follow in deciding not to employ that power, and one I would celebrate.

    But that still leaves us with the discretion issue raised in the main post, and that's inevitable until the Court changes its mind and decides the Commerce Clause means what it says and not the opposite of what it says.

  • ||

    The courts have allowed Congress to regulate any violent crime as long as the weapon has moved in interstate commerce and has allowed Congress to regulate any robbery as long as the proceeds from the robbery could have been used to buy goods in intestate commerce. That should put to rest the notion that our current Congress is constrained by anything meaningful.

  • QuantumBoxCat||

    "First, the Constitution does not allow Congress to regulate all in-state marijuana, and the Supreme Court should not have said that it does. "

    What exactly does "the rule of law" mean? This statement appears to indicate that Will Baude is the interpreter of the Constitution as Will Baude believes the Constitution does not allow Congress to regulate all in-state marijuana and the justices on the Supreme Court were therefore wrong. Is "the rule of law" then what Will Baude thinks? or is "the rule of law" just a subjective term that relates to each individual's perception of what the Constitution means? If the Court has said that the federal government cannot commandeer state officials as per the 10th Amendment, then can anyone say that the Court was wrong and its actually in accordance with "the rule of law" for the federal government to commandeer state officials? If this is true the phrase "the rule of law" is just used for its perceived authoritative weight as a source for one's own opinion. Is that correct?

    Is it in accordance with "the rule of law" to ban all abortions? to criminalize possession of all firearms? For the President to use a line item veto? It would seem that all individual's can just say the Court was wrong in those cases, the Constitution (as the individual interprets it) reigns supreme, and that (individual) interpretation constitutes "the rule of law." Is this what the phrase means?

  • Headache||

    It is the Constitution, not the Court, that is the ultimate rule of law in our system.

    Yes, but not in our country. The legislation said penalty or fine not tax, but here we are.

  • Michael Hihn||

    "It is the Constitution, not the Court, that is the ultimate rule of law in our system.

    The Gospel of the Alt-Right. (And Ron Paul) Every law requires an enforcer. DUH.
    And we have no rights if we cannot defend them. DOUBLE DUH

    The court decides if the Constitution has been violated. As a check against violations by the other two branches. This makes some "brains" EXPLODE on the wacko right -- no reason; that's what they've been told, originally by the KKK and southern racists..

    To claim otherwise is to claim our rights have we have NO protection, which says the Constitution is USELESS, and that Constitutional Review is itself unconstitutional ... by anyone.

    Congress has a check on SCOTUS, by changing its jurisdiction -- as when Ron Paul tried to deny ANY challenges to DOMA, the first such denial of constitutional protection rights since slavery. Congress can only change jurisdiction, else an all-powerful Congress would have absolute power. The Framers were NOT stupid. Eventually, SOMEONE has to decide if it's been violated. TRIPLE DUH

    Any questions?

  • Okieoil||

    The constitution says what the Supreme Court says it does. Once the court has ruled on a constitutional rule, there is no redress in court short of the court hearing a similar case later on and reversing itself... has been done. Constitutionally, the document can be amended per constitutional processes. Just because the court erred, does not give the congress or the executive the constitutional authority to do otherwise.

  • Mike Hansberry||

    Baud makes good case that Congress overstepped its commerce powers but until Congress does something that infuriates Left and Right at the same time scotus will continue to ignore any limits.

    Just maybe federal prosecutions for state legal weed will be the tipping point!

  • ohdelilah||

    Where in the constitution does it give the federal government either the right or the authority to ban ownership of private property? And why stop at marijuana? Wouldn't the same rules (or lack thereof) apply to other drugs as well? Oh, because those other drugs are dangerous? So is my car, my chain saw, my front steps, for Christ's sake.

  • Michael Hihn||

    You assume, falsely, that ANY fundamental right can be absolute over any other one, when each is absolute in itself.

  • m.EK||

    Will, first off, we are a Constitutional Republic under LAW!
    The government does not "make law"!!! They create rules and call them "laws". Law was here long before government. This is what people compare the rules with to feel they are being abused.
    LAW is essentially "do all you have agreed to do and do not encroach on other persons or their property". Do all you have agreed to do,,, the basis of Contract Law. Do not encroach, the basis of Civil Law and Tort Law. Don't harm others or mess with their stuff and honor your agreements. All the rest is rules/"laws". Rules/"laws" are about channeling power and money in various directions for the benefit of a few over the many or the many over the few.
    The interstate commerce clause is to keep one or more States from holding others hostage. It has nothing to do with allowing government to ban product or force people to purchase product. That is simply outside of the governments mandate.
    The first 10 Amendments to the Constitution are rules for the government, not the people. These are what the political hacks CAN NOT do!!! What they can't legislate, decree, or "rule" on. Remember, the so called supreme court is simply a branch of the government, not outside or above. Also, remember, it takes a SUCCESSFUL AMENDMENT PROCESS to alter the Constitution in ANY manner or form!
    Lastly, the Oath of Office is a LEGAL AND BINDING CONTRACT to honor the Constitution AS WRITTEN.
    To violate one's Oath is a CRIME!

  • Michael Hihn||

    The Congress shall have power to ... regulate commerce with foreign nations, and among the several states, and with the Indian tribes;
  • Brian Whittle||

    Clearly, Federal Government can force laws on states, the States cannot go below the age of 21 for alcohol thanks to traitor in chief Ronald Reagan.

  • Michael Hihn||

    Our first libertarian President? And that's not true. States can freely adopt whatever age they want. But they'd lose 10% of their federal highway funding. Have you committed treason by claiming states can force the federal government to spend federal dollars the way that states demand?

    How is this any different than federal control of federal Medicaid dollars? (I'm not defending that, just correcting your error.) Or ... you don't buy Ron Paul's bullshit on the 10th Amendment, do you?

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