Comment by wildmusings | Hacker News Reader

Comment by wildmusings | Hacker News Reader

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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.

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.

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.

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