By: The Fusionist

So, Spicer (the Presidential spokesdude) said the Trump administration might increase prosecution for state-legal recreational marijuana (as opposed to medicinal marijuana, protected by the Rohrabacher Amendment).

The predictable prog freakout includes “wrong side of history” (the WA state attorney general) and “hypocrisy” (for respecting states’ rights on chicks with dicks, but not with dope).

But let me ask, what are the *principled* grounds for proggy complaints? Congress passed anti-dope statutes, applying not simply to marijuana which flows in interstate commerce, but to marijuana which is grown and consumed within a single state. The Supreme Court, by a 5-4 vote, said that these federal statutes are a valid exercise of the Constitution’s Commerce Power, 10th Amendment be damned. Sure, there was an eloquent dissent by Justice Thomas, and critics ask why it took a constitutional amendment to ban booze on the federal level while marijuana required only a Congressional statute.

But all this is beside the point, isn’t it? After all, the Supreme Court, according to prog dogma, is a secular magisterium. If the Supremes say that Congress can use the “interstate commerce” rationale to prevent the growing, selling and using of a plant within a single state, then the Court’s word is final, isn’t it? Isn’t the Supreme Court our secular Magisterium, whose pronouncements on constitutional law are binding on the consciences of the citizens, and of officials in other government branches, until such time as a new 5-4 majority on the Court overrules the former majority, in which case the *new* pronouncement of the Court is binding on the consciences of officials and citizens.

Any Congressional statute pronounced constitutional by the Supreme Court of the United States is, therefore, perfectly valid and part of The Law, and the President is bound to see that the laws are faithfully executed. Congress has passed statutes forbidding marijuana even if grown, sold, and used exclusively within the borders of a single state. Therefore, the President is bound to enforce this law against all violators, right? And if the authorities in some defiant state refuse to comply, then do with them like the feds did with George Wallace: make them get out of the way so the will of the Supreme Court can be enforced.

To the extent progs have principles, this is definitely one of them. They should get bumper stickers for their Volvos – “The Supreme Court said it, I believe it – that settles it!”

So why are they bitching and moaning at Trump? Because Trump! and weed! of course.

I suppose they will utter some noises about prosecutorial discretion, but that’s not the constitutionally required faithful enforcement of the law. That’s *fitful* enforcement.

Fortunately, those of us who aren’t progs and who believe the federal dope laws are unconstitutional, need not paint ourselves into a corner like this. We get to say that just because the Supreme Court says something doesn’t make it true. The Supreme Court has previously admitted it was wrong in the past. So it’s like the famous conundrum of whether to believe the person who says he’s a liar.

The federal courts are checks on abuses of power by Congress, the President, and the states. So if (to take a purely hypothetical example), the President (perhaps with Congressional approval), locks someone up without a trial, the federal courts can use habeas corpus to get the prisoner released.

So the courts should be seen as a *check* on the powers of the other branches, but their decisions should not be seen as a *blank check* for unconstitutional federal actions.

The President, as well as the members of Congress and the Supreme Court, are pledged to uphold the Constitution. That means defending the constitution against attacks from any quarter – even the courts and Congress.

If Congress passes an unconstitutional statute and the Supremes uphold it, then all the more reason for the President to take another look at the statute to make sure it’s not an unconstitutional oppression of the people. If he thinks it’s unconstitutional and that the courts aren’t going to block enforcement, then the President, under his own responsibility, should uphold the Constitution and forbid the enforcement of the unconstitutional statute(s).

Sometimes a statute creates or enforces private rights, so that if the President tries to block enforcement, a person whose rights are affected can go into federal court to challenge the Pres, and if the Supreme Court has already upheld the law, the Pres will lose. I’m not sure, however, whose legal rights are violated if the President *doesn’t* enforce the drug laws. Without an actual case, the Supreme Court won’t be able to step in.

That leaves Congress. If the House of Representatives think the President is disobeying or thwarting the implementation of a constitutionally-valid statute, then the House can impeach the President and those who aid him (or, if they’re wimps, the House can impeach solely the subordinate executive officials who carry out the President’s orders).

Then the Senate will decide whether to convict. Two-thirds are required for a conviction, so if 2/3 of the Senators believe the President violated a constitutionally-valid statute, they should find him guilty. On the other hand, if 1/3 plus one of the Senators believe the statute is unconstitutional, they should vote to acquit, and the President’s action will be sustained, assuming there’s no plaintiff with standing to force the Pres to enforce the statute.

So under my suggestion, the Pres would be able to go over the head of the Supreme Court and thwart the enforcement of an unconstitutional law. Congress in its judicial capacity would have the final word on the validity of its own statutes and would throw obstructive executive-branch officials out of office if they obstruct valid statutes. On the other hand, if you can’t get a majority of the House and 2/3 of the Senate to agree that a statute is constitutional, then it’s just as well for the public the statute isn’t getting enforced, because it probably *isn’t* constitutional.

 

(I may post another discussion about drug treaties)