Friday, January 05, 2018

Constitutional Duty

Today’s version of “democracy” is baffling to me, and I suspect would make the founders of this nation wish that they had taken up golf instead.

The founders saw fit to make it one of the duties of our president to “take Care that the Laws be faithfully executed.” The people of this nation used to applaud presidents for fulfilling that obligation, but today they seem more often to applaud his breach of it and excoriate the executive branch for any attempt to carry out the constitutional mandate.

For instance, lawmakers, Congress and state legislatures, passed an amendment back in 1919 to make the production, transportation or sale of alcohol illegal, and Congress passed a law in 1920 making the possession and consumption of alcohol illegal.

While both aspects of the legislation were violated in a pretty massive fashion, no one ever suggested that the executive should ignore the existence of the law, or that no attempt to enforce the law should be made. Certainly no one ever suggested that any state could pass a law making alcohol sale, possession and consumption legal and that the federal government should overlook and allow that. By 1933 voters had pressured lawmakers to repeal the almost universally unpopular federal law. All of that was consistent with what the founders, I think, had in mind as to what they had set up for governance in this nation.

Then in 1970 Congress passed the Controlled Substances Act which, among other things, classified marijuana as an addictive drug and made production, transportation, sale, possession or consumption of it illegal. More and more people, voters, are objecting to that law, but instead of agitating for the repeal of that federal law, they are insisting that they can pass state laws making it legal and that the president should simply not enforce the federal law.

I am actually sort of neutral on the legalization of marijuana. The evidence seems to be that it is actually somewhat less dangerous than alcohol. If nothing else, withdrawal from excessive use of marijuana is not medically dangerous, while alcohol withdrawal can cause death. Don’t know, and don’t really care. My point here is about governance.

President Obama announced that he considered marijuana to be a state issue and that he would direct the Justice Department not to interfere with states which had declared marijuana to be legal. In doing so he was actively renouncing his constitutional responsibility to enforce federal law, and he was widely applauded for doing so. If any voice was raised criticizing him for violating his oath of office, I never read it.

Then President Trump rescinds that directive and directs the Justice Department to enforce federal law. He is excoriated by the same media and the same people for following his constitutional mandate to enforce federal law as applauded President Obama for renouncing that mandate.

Nowhere is any call made upon Congress to change that part of the Controlled Substances Act which relates to marijuana. The media is, big time, all over whether or not the Executive Branch should enforce the federal law on marijuana use. The discussion, under the false umbrella of "states rights," is not about whether or not the federal law should exist, it is about whether or not it should be enforced, which is utterly nonsensical.

So what we had in the 1930’s was that a law which was unpopular resulted in the voters putting pressure on the legislature to change the law. Today we have an unpopular law resulting in voters putting pressure on the executive to violate his constitutional duty by failing to enforce the law. Voters, apparently, realize that they not only do not control Congress, they do not even have any influence with Congress.

Or perhaps the whole thing is just hollow drumbeat to popularize one president and, more to the point, to depopularize another one, and no one really cares whether federal laws are enforced or not. In either case, it’s pretty clear that what our founders created is no longer functional.

1 comment:

bruce said...

Didn't Mr. Obama 'encourage' federal prosecutors not to go after small time users etc, to use their discretion favorable toward them? Not "don't enforce the law" ?

That would be similar to what Pres Trump did, he just ordered them to use their discretion. But certainly, enforcement was .. 'highly encouraged'.

Just like the DACA thing - Obama executive order said don't prioritize that segment, not to NOT do it at all. But of course, most people agreed with it, thought it was a law, etc. And when Trump revoked it, there was a hue and cry. Obama said it himself, that it was temporary and Congress needed to act. And Trump did it to try and force them to act. Good luck with that.

And with people actually understanding that.

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