Today, U.S. Attorney General Jeff Sessions announced an intention to overturn an Obama-era Department of Justice (DOJ) enforcement policy with respect to marijuana:
Attorney General Jeff Sessions is expected to rescind an Obama-era policy that had paved the way for legalized marijuana to flourish in states across the country, prompting quick pushback Thursday from at least two Republican senators from states that allow its use after the plan was first reported by the Associated Press.
The Justice Department chief plans to leave the decision of how aggressively to enforce federal marijuana law up to federal prosecutors, two sources with knowledge of the plan told the AP.
Sessions is a well-known hardliner on drug issues, and I suspect my policy preference (shared by, e.g., Ted Cruz) that Congress amend the Controlled Substances Act of 1970 so as to remove marijuana as a Schedule I narcotic and entirely devolve the drug’s regulation to the states is a normative position at loggerheads with Sessions’ own.
But Jeff Sessions is absolutely correct to overturn this Obama-era DOJ enforcement policy. In so doing, he is vindicating the Supremacy Clause in Art. VI of the U.S. Constitution against those who would subvert it to an overly broad and misguided conception of the doctrine of prosecutorial discretion — a conception, incidentally, which happened to identically mirror the Obama Administration’s proffered apologia for its defense of its lawless DACA and DAPA immigration edicts.
Let’s start with some law.
The Supremacy Clause (Art. VI, cl. 2) of the U.S. Constitution, as originally promulgated and as survived through the John C. Calhoun-led 19th century nullification crisis, unambiguously establishes the supremacy of federal law over any countervailing state law.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Consequently, it is thus a legal truism that (justified!) conservative and libertarian concerns for federalism and respect for the 10th Amendment must be seen through this prism. Where Congress has legal authority, via its strictly enumerated powers, to speak, and where Congress has indeed spoken, the states may not explicitly countervail or override. Much of the conservative argument against “sanctuary city” policies rests on precisely these grounds.
At the same time, the basic federalism construct embedded in the U.S. Constitution indeed does establish dual spheres of positive sovereignty as between the federal and state governments. (Normative sovereignty in our system of governance, by contrast, rests, as the Preamble to the U.S. Constitution makes clear, with “We the People.”) It is not an exaggeration to call this unique American application of the subsidiarity principle the most distinct contribution the Founders made to the Western political theory canon; whereas the Frenchman Montesquieu had laid the foundation for a tripartite separation of powers construct as among the legislative, executive, and judicial branches, it was James Madison and his fellow Framers who birthed the concept of true federalism. And liberty-minded patriots are all the better for it.
Under this idea of dual spheres of sovereignty, a state (such as Colorado) may indeed pass legislation to legalize marijuana within its jurisdiction. But here, “legalize” only means that the state will not expend any state resources to prosecute or police the underlying conduct. Crucially, because of the Supremacy Clause, the state cannot “nullify” or actively hinder DOJ’s enforcement of duly enacted federal law. Again, when conservatives rail against “sanctuary city” policies under which local and state law enforcement agents actively block Immigration and Customs Enforcement officers from doing their jobs, they are making this precise point.
Enter the Obama Administration. The Obama-era DOJ, over and over again, famously took an exceptionally broad view of prosecutorial discretion. They did so with the DACA immigration edict of 2012. They did so with the DAPA immigration edict of 2014. And they did so here, in the context of marijuana enforcement, by effectively issuing a top-down departmental order precluding DOJ enforcement of the Controlled Substances Act, with respect to marijuana. In doing so, the Obama-era DOJ made it easier for the states to justify their own state law experiments with marijuana legalization.
Here is the problem. As every first-year law student taking criminal law learns, prosecutorial discretion is a wholly legitimate doctrine. It is simply true that a given prosecutor’s office is seldom (if ever) capable of prosecuting (as a purely fiscal matter) every single possible crime falling under his geographic jurisdiction, and over which he has legal jurisdiction. Federal and state prosecutors thus make ad hoc, case-by-case assessments as to prosecutorial priorities each and every day.
But this traditional, and more modest, view of the doctrine of prosecutorial discretion is at irreconcilable odds with the Obama-era conception of prosecutorial discretion, which paved the way for wholesale rewritings of underlying law — a task that incontrovertibly falls to the Congress, under the Vesting Clause of Art. I of the U.S. Constitution. The Constitution’s basic tripartite separation of powers construct was thus breached. I made this point this morning as part of an extended Twitter dialogue with my good friend (and fellow Daily Wire contributor) Elliott Hamilton:
Conservatives properly rejected — in unapologetic and quite emphatic fashion — this Obama-era conception of the prosecutorial discretion doctrine during the DACA and DAPA public debates. As I wrote at RedState at the time, in the immediate aftermath of Obama’s DAPA ukase, I viewed the unilateral DAPA amnesty and breaching of our national sovereignty as such an unforgivable sin so as to clearly fall under the Constitution’s prescribed “high Crimes and Misdemeanors” criterion establishing the grounds for presidential impeachment:
This offense falls squarely within the original meaning of the Constitution’s language of limiting presidential impeachment to “treason, bribery, or other high Crimes and Misdemeanors.” In Federalist No. 65, Alexander Hamilton describes the jurisdiction of impeachment proceedings as “those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.” And in a 1989 law review article, the esteemed Judge Frank Easterbrook defines the scope of Congress’s impeachment power as being intended for mere constitutional violations.
As constitutional law professor (and my good friend and fellow Texan) Josh Blackman blogged extensively about and testified before Congress about at the time, the President of the United States’ solemn duties under the Take Care Clause of Art. II of the Constitution (“[The President] shall take Care that the Laws be faithfully executed …”) necessarily exists to guard against precisely the theory of prosecutorial discretion that the Obama Administration repeatedly invoked. Here is the way that Blackman and his fellow libertarian-leaning legal eagles Ilya Shapiro and Randy Barnett put it in a 2016 U.S. Supreme Court amicus brief (emphasis added):
To put this in constitutional terms, courts should ask whether the president is acting within the realm of prosecutorial discretion that Congress contemplated when it enacted the statute. If the answer is yes, the deviation from the law is in good faith, and is thus permissible. However, if the departure from the law is “used to recapture opportunities forgone upon contracting” — to accomplish ends rejected by Congress — then the action is not in good faith. When the president bypasses a statute by relying on a claim to authority Congress withheld from him, this is evidence that the president is violating his constitutional duty…Motivation is therefore the factor that distinguishes genuine prosecutorial discretion from a pretextual usurpation.
This is spot-on legal analysis, and it is wholly applicable to Attorney General Sessions’ action today to rescind the Obama-era DOJ prosecutorial discretion policy with respect to marijuana. The Controlled Substances Act is entering its 48th year of existence; if Congress wanted to remove marijuana as a regulated Schedule I narcotic under the statute, it could plainly have already done so. That Congress has not done so does not mean that the President of the United States — with his “pen” and his “phone,” as Obama famously put it — may unilaterally do so. And with respect to prosecutorial discretion, Sessions’ move actually restores a proper view of the doctrine: As the Politico piece initially quoted here says, “The Justice Department chief plans to leave the decision of how aggressively to enforce federal marijuana law up to federal prosecutors.” Indeed, that is precisely how prosecutorial discretion has always worked, and how it ought to always work.
Good for Jeff Sessions.