Comment by dbingham | Hacker News Reader

Comment by dbingham | Hacker News Reader

Parent Full thread

Unfortunately that's not how it works, at all. Especially when there are legal conflicts between the state and federal governments like this. There are so many laws on the books, many of them horribly outdated, and legislatures are overworked / grid locked. Often, the only way for us to have a working body of law that makes sense is for the government to simply stop enforcing the outdated ones.

In the case of the Obama era Pot rules, the federal government had basically said "Rather than enforce our unilateral law, we're going to allow individual states to decide how they feel and only enforce the prohibition in states that continue to request it." Which makes perfect sense. Once enough states had legalized it, it would create momentum to legalize it on the federal level. It made perfect sense for the federal government to get out of the way and let that process play out.

Enforcing the federal law in states that legalize it is just going to set up a battle between those states and the federal government, with a lot of very costly court cases and headaches for the various agencies tasked with enforcement.

> There are so many laws on the books, many of them horribly outdated, and legislatures are overworked / grid locked. Often, the only way for us to have a working body of law that makes sense is for the government to simply stop enforcing the outdated ones.

Normalising this is a dangerous precedent. It leads to the situation where every citizen is technically a criminal according to the letter of the law, but it's not enforced as long as you don't stand out. But as soon as you annoy someone in government, they can choose to arrest and imprison you.

> Normalising this is a dangerous precedent

Not really, and even if so, we are a few centuries too late to do anything about it.

Having unenforceable laws in a necessity of how the legal system works. If a law is ruled to be unconstitutional it does not magically get removed from the books. That requires legislative action, but why waste time in the legislature on something with no practical effect?

That is different, such laws are unenforceable because they have been ruled to be so by a court. The problem is with laws that are unenforced, but are still enforcable. If the situation of having unenforced laws becomes normalized, then legislatures will indeed not "waste time" removing them, and such laws will be only unenforced until some official decides they don't like you.

I doubt that people whose lives/finances have been ruined defending themselves against vindictive/overzealous prosecutors and litigious citizens would agree that this is not a dangerous precedent. Being dragged through the courts based on outdated or unreasonably applied laws can ruin a person's finances or reputation even when they successfully defend themselves.

The minors on trial for sex crimes for sending nude pictures of themselves, as well as innovative business being stifled buy outdated protectionist regulations, may also have something to say about it.

Outdated, unreasonable, misinterpreted, and in some cases know unconstitutional laws, can be used as tools to attack and harass.

The fact the Constitutional action is not being taken to remove these laws and regulations from the books is not an argument for them to continue existing, but rather an argument for the need to change how the government operates in regards to updating and clarifying the law.

>Often, the only way for us to have a working body of law that makes sense is for the government to simply stop enforcing the outdated ones.

Fairly enforcing every law on the books regardless of a person's income or gender and ending plea deals, which would tie up the court systems, would create a disaster. But it is something we need, because the law as is, where everything is illegal and the police target whomever makes them mad is even worse of a disaster. (Yes, police do consistently enforce some laws, like no murder, but there are far too many laws on the books police pick and choose to enforce as it suits their prejudices).

>with a lot of very costly court cases and headaches for the various agencies tasked with enforcement.

Sounds good to me. When those agencies are so low on budget they can't enforce the laws and people get sick enough of the status quo they elect law makers who'll actually remove bad laws, then we will end up better off.

Yes, the government has some prosecutorial discretion, the legal limits of which are uncertain. But there is no legal ambiguity or conflict as to federal government's authority to enforce drug laws (as I originally read your post to suggest, though perhaps you have edited it?). Federal law is supreme and the Supreme Court has already ruled on this particular issue, going so far as to allow the punishment of someone who was growing marijuana in his backyard for personal use in compliance with the state medical marijuana law. The feds could legally walk into a recreational pot shop and arrest all the employees and customers, and legal arguments to the contrary wouldn’t really go anywhere.

But it’s worth noting that they can no longer do the same thing to medical marijuana dispensaries and patients because of the relatively recent Rohrabacher–Farr amendment in the federal budget that prohibits spending money on enforcing federal drug laws against medical marijuana programs that are compliant with state laws.

Correct, and in specific, the supremacy clause of the constitution guarantees that federal law overrules state law. I don't see any state AG's having much luck suing the DoJ against this as it is clear as mud:

https://en.wikipedia.org/wiki/Supremacy_Clause

> against this as it is clear as mud:

Mud is opaque. The phrase "clear as mud" means "not clear at all", or "baffling".

(I only point this out because there are peoplereading HN with English as a second language, and some of them are interested in idiom. I don't care how you use language, and I'm not trying to "correct" you.)

Unless sarcasm is intended

Yep, though I do disagree with the logic of the Supreme Court case I mentioned. The federal government argued it was a legitimate exercise of Congress’s constitutional power to regulate interstate commerce. But growing weed in your backyard for personal use is clearly neither interstate, nor commerce. Alas, the commerce clause has been widely abused in many similar ways with the Supreme Court’s blessing.

That's only half the picture. There's also the 10th Amendment, which says that powers not delegated to the feds belong to the states or the people. Federal drug laws rely on the interstate commerce power, even though they also regulate conduct that is sometimes purely intrastate and/or purely non-commercial. The most natural reading of the Constitution is that the feds have no authority here. The Supreme Court disagreed in Wickard and Raich, but Wickard was poorly reasoned rationalization for political purposes and Raich does not stand except by relying on Wickard.
I mean, for all practical purposes, the feds will do what they want. But if you're going to cite the text of the Constitution, the feds are breaking the law here. It takes case law to justify what they're doing, not just the text.
Just a thought: Why did alcohol prohibition require a constitutional amendment but drug prohibition didn't?

I'm all for a faithful reading of the Constitution, and I agree that the federal government has overstepped the intended bounds, but it's ultimately irrelevant. For legal purposes, the Constitution is whatever the Supreme Court says it is. If you want them to be more faithful to the original meaning, appoint judges who feel the same way.

> Just a thought: Why did alcohol prohibition require a constitutional amendment but drug prohibition didn't?
Prohibitionists wanted an amendment because at that point in time, no amendment had ever been overturned.

A properly-ratified amendment cannot be overturned, unless it decreases a state's share of the votes in the Senate without its consent. There are at least two reasons prohibitionists sought an amendment:
1) The Supreme Court at the time did not take the expansive view of the Commerce Clause that it has today, so it may very well have declared a federal prohibition law unconstitutional.
2) The amendment didn't give Congress the power to ban alcohol, it banned alcohol. That meant that legalizing alcohol required another amendment. This was a huge win for the prohibitionists.

> A properly-ratified amendment cannot be overturned
GP probably meant “repealed” rather than “overturned”.

> Just a thought: Why did alcohol prohibition require a constitutional amendment but drug prohibition didn't?
It probably didn't; the Wartime Prohibition Act was passed before the 18th Amendment was ratified and generally viewed not to require the amendment; this was never tested because by the time it went into effect, the amendment had been ratified.
The Amendment made prohibition a permanent policy as long as it wasn't repealed—which at that point was unprecedented—and was considered valuable for that reason.

Yes, but constitutionally, does the federal government have the power to make pot illegal. They certainly didn't in the early 1900s when they first tried, thus their stamp act work around.

The fist portion of parent's post is perhaps controversial, but it's not necessarily mistaken. The scope of the executive's power to purposefully under-enforce laws is a bit of a constitutional conundrum. Even among the cases on this topic that have made it to SCOTUS, the opinions were pretty well split and no clear doctrines were handed down. Also, most historical examples of this use of executive power were not tested by the judiciary. So, the issue is murky at best.
The second portion of the parent's post is categorically not mistaken. If you've ever lived in a deep red state, you know that AGs are more than willing to spend millions of taxpayer dollars on a hope and a prayer to try and defend blatantly incorrect legal theories. Just because there's no hope of winning a court case doesn't mean that state AGs won't waste millions trying.

Yes, the limits of prosecutorial discretion are legally murky. What I'm referring to is the legality of enforcing a valid federal law that conflicts with a state law; there is no question whatsoever that the federal law is supreme and may be enforced.
As for grand-standing state AGs, that's not just a red state thing. A few examples come to mind from recent months alone. Look at the Washington State AG, filing all sorts of clearly losing political lawsuits, e.g. suing a motel for sharing guest-list information with the federal government, on the theory that it violates state consumer protection law. Or look at the various state AG's who are hopelessly suing over the net neutrality repeal. These are losing cases, filed as a red meat for their electoral base.

Contrary to the idealistic view courts do not simply judge cases on the merits and the law but most definitely do take into account practical concerns about enforceability and public opinion.
Courts will generally not make rulings that undermine their own authority, so if they see that their ruling will be ignored anyway, that does shape their opinion.
After many state referendums legalizing cannabis, especially in western states which are already hostile to the federal government, the Supreme Court would think long and hard about the potential constitutional crisis that could arise from going against the popular will on this issue.
I expect they will find some new justifications for a more nuanced approach if the issue is put to them again.

Reply on news.ycombinator.com