Erick Erickson / January 5, 2018

The Rule of Law Goes to Pot

We are supposedly a nation of laws, not men, but our lawmakers have ensured over the years that we are increasingly at the whim of men, elected or appointed, instead of the law.

We are supposedly a nation of laws, not men, but our lawmakers have ensured over the years that we are increasingly at the whim of men, elected or appointed, instead of the law. Attorney General Jeff Sessions has declared that he will reverse an Obama administration position allowing states to decide on marijuana legalization. Now, local United States Attorneys will be empowered to decide.

But neither the Obama administration nor Jeff Sessions should do anything other than enforce the law, and federal law criminalizes marijuana. The solution here is not to ignore the federal law but to repeal it. To do otherwise empowers individuals beyond the rule of law and puts the whims of officials ahead of the will of the people.

Near where I live, a local police officer pulled over a man for the audacious offense of driving while eating. There was no complaint and there was no evidence that the man was distracted in his driving. But the young police officer decided to use the distracted driving charge to ticket the man, whose local officials eventually threw out the citation. We live in an age where there are more and more complaints of overzealous police officers and overzealous cities nickel-and-diming the citizenry on old laws.

It is, I am told, against the law in Cleveland, OH, to sneeze outdoors. If a police officer wanted to, he could ticket you for sneezing and the burden would be on you to fight the citation. The correct remedy is to repeal a stupid law. Again, as long as the law is on the books, it allows a bureaucrat or politician to have extraordinary and capricious control over your life. It allows politicians to change their minds and reverse other policies. It puts men ahead of the law. And our Congress is notoriously good at passing laws then abdicating their constitutional responsibilities to bureaucrats who they can blame at election time.

You may think there is nothing wrong with legalized marijuana. All but three states now have some form of legalized medical marijuana and several states now have legalized recreational marijuana. California is the latest and also a case study in the legalization of marijuana as a new form of revenue and regulation.

Regardless, as long as a federal law is on the books making marijuana possession a criminal act, a bureaucrat in Washington can wipe out the market and a thriving industry. You can scream all you want that they should not do it, but they can and the only thing in life more certain than even death and taxes is that a bureaucrat will act arbitrarily and capriciously when the mood strikes.

This, though, is the logical outcome of the federal government stepping in to the criminal law field, something our founders would be appalled by. Tough on crime politicians run for federal office insisting they will make federal criminal laws and the result is placing people in situations where they can be prosecuted under a state law, then have a federal prosecutor prosecute them for the same thing when a U.S. Attorney seeks to build his name for his own run for office. No, it is not double jeopardy because the federal government and state governments are separate entities. Ironically, many of the tough-on-crime politicians getting elected to expand the federal criminal law are also Republican politicians who claim to want to return power to the states.

When John F. Kennedy was assassinated there was no federal law criminalizing the assassination of a president. Only in 1965 did Congress act. Now we have a federal crime for virtually anything you can think of and federal bureaucrats with their own SWAT teams to enforce not just criminal laws but bureaucratic regulations.

Congress should scuttle most of the federal criminal law in an effort to restore the balance of power to the states. I am indifferent on marijuana legalization, but many states are not and Congress should let the system and rule of law work instead of undermining the rule of law by empowering the arbitrariness and capriciousness of men.


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