There's no conflict between enforcing federal pot statutes and 'respecting state law'

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Published by: Dan Calabrese on Friday January 05th, 2018

And don't take anyone seriously who frames the issue that way.

It's now controversial for the Attorney General of the United States to enforce federal law, even though that is his one and only job.

Society's recent surrender to the cultural impulse to chemically scramble reality has led a handful of states to repeal their own laws against the production and possession of marijuana, which for some stoners means the first and only accomplishment of their entire lives.

But they're still dumb as rocks, which means they don't understand that the absence of a law at one level doesn't necessarily mean no such law exists at all. The city in which you live may not have an ordinance against murder. Or rape. Or drunk driving. That doesn't mean these things are legal in your city. It simply means they're already covered by state statutes and there's no reason for your city to also pass laws against them. And your local police will arrest you for breaking state law. They won't say, "Hey, we didn't pass the law! Let the state police come get 'em!" That's not how law enforcement works.

At least it's not how it usually works. In this politically charged era, it has become bizarrely controversial in certain states and cities to expect anyone - from citizens to local law enforcement - to respect federal law. And somewhere along the line, people forgot that federal law applies in your state simply because your state is part of the country. If the federal government passes a law banning something, it doesn't need state legislatures to pass their own identical laws in order for the federal law to apply in the respective states. It applies. Everywhere.

Yet for some reason, people think Attorney General Jeff Sessions is doing something wrong by rescinding an Obama-era directive that U.S. attorneys are not to enforce federal marijuana laws. And this is thought to be particularly egregious in states that have repealed their own laws against marijuana, because they think it means the DOJ isn't "respecting state law." Here's how Hot Air's Allahpundit worded it when discussing public opinion polls on the matter:

And bear in mind, the share of Americans who think the feds should back off on marijuana prohibition in states where the drug is legal is always, always higher than the share who support legalizing the drug themselves. Quinnipiac found no less than 71 percent in favor of the feds respecting state law when it polled the question back in February. Sessions’s decision will be broadly unpopular (although most will forget about it in due course if in fact U.S. Attorneys don’t change prosecution patterns because of it). 

The implication is that, if state law allows something but federal law does not, then the DOJ is "direspecting state law" to actually enforce federal law in that state. That's nonsense. When a state repeals a law that makes something a criminal offense, the only thing the state is doing is deciding that it will not maintain or enforce any of its own statutes against that behavior. You won't be charged under state law. You won't be tried in state courts. You won't be sent to state prison. That is all the state is doing because that's all the state can do.

A state has no power whatsoever to nullify the effect of federal law, whether within its own state boundaries or anywhere else. The state is simply telling the federal government that federal charges will be the only way people get prosecuted for a particular offense.

There are many laws that apply at one level of government and are not duplicated at other levels. My state of Michigan has a seat belt law. My city of Royal Oak does not. That doesn't mean I can drive around Royal Oak without a seat belt on and claim I'm immune from state law. The state is not "disrespecting local law" by enforcing the seat belt law in Royal Oak. Royal Oak is part of Michigan. State law applies here, regardless of what the city's particular ordinances say.

The only way the DOJ would be "direspecting state law" on the matter of marijuana is if it sought to somehow punish state legislatures for legalizing marijuana, either by denying them some sort of funding or by harassing their police or elected officials. As much as I favor keeping marijuana illegal in every state, I would not favor the federal government doing that to the states. The federal government can simply enforce its own laws.

But that seemingly simple proposition has a lot of people confused, because somewhere along the line they got the idea that state legislatures need to pass laws affirming federal laws in order for the federal laws to apply in their respective states. They do not.

By the way, all Sessions did was return discretion on the matter to local U.S. attorneys. Under Obama, U.S. attorneys were directed not to enforce federal law on marijuana, which is a direct violation of the president's oath to enforce the laws on the books. Of course, this was an Obama specialty. He loved to ignore laws he didn't personally agree with when he couldn't get Congress to change them. And for the most part the press cheered him on.

Now, if you want to make a 10th Amendment argument that marijuana laws should be left to the state exclusively, you can make that argument, but in order for the idea to have the philosophical consistency libertarians always insist on, it would have to call for the Congress to repeal the Controlled Substances Act in its entirety. Given the nature of drug trafficking - with drugs often moving across state lines and across national borders - no good would come of such a move, and I would argue fiercely against Congress doing it. But at least that would be a constitutional approach: Congress repealing a federal law that the people no longer wish to be enforced at the federal level.

But to argue that the Attorney General should simply ignore a law that's duly passed by Congress and is on the books . . . well, you'd have to be stoned to think that makes any sense.

Dan writes Christian spiritual warfare novels and does all kinds of other weird things too. Follow all his activity by liking him on Facebook!