The Rule of Law Goes Up In Smoke: President’s Disregard for Federal Marijuana Laws Runs Counter to His Oath to Uphold the Constitution

By Lloyd the Idiot

Up in Smoke (1978)

I wish I were better at Photoshop.  You’d see that instead of “Cheech & Chong,” it would be “Barry and Eric,” and the photos would be of the two of them.  Anyway, use your imagination . . .

I have so many thoughts on Colorado’s new eco-tourism industry and the Obama administration’s response that it’s hard to keep them all straight, so here they are in corporate-esque bullet point format for ease of consumption.

  • First and foremost is the utterly disgusting interview with Barbara Walters where Obama says, as if completely befuddled by the very concept of federalism, “How do you reconcile a federal law that still says marijuana is a federal offense and state laws that say that it’s legal?” suggesting that his hands were tied because a state had passed a law that conflicted with the federal law.  Answer: It’s called the Supremacy Clause, dude.  We fought that one out about 150 year ago.  Surprised that you forgot about that one.  Either Yale is doing a crappy job of teaching their future lawyers or Barry is just lying.  (HINT:  it’s a trick question – both are true). 
  • This is the same type of ill-planned change as gay marriage.  Policy changes this big deserve to be discussed and debated in the legislative process, not brought about by legislative fiat or judicial activism.   Indeed, this is just the latest in Obama’s uncompromising imperial presidency, routinely ignoring precedent and due process.  Don’t be confused – it’s not “leadership,” it’s just “bullship.” 
  • Further, Attorney General Holder, after publishing a memo rationalizing the non-prosecution of federal drug laws in these states, is actively looking for ways to enable banks to finance marijuana growers and seller (keep in mind the Feds don’t even allow banks to finance payday lenders – but pot is ok).  Simply amazing.  Don’t bite, banks!  And, for the rest of you, don’t invest in those pot sellers just yet.  Come another administration, and an AG who actually will follow the law, everything could change.  And change quickly.  Remember, there’s at least a five year statute of limitations at play here.
  • What does this mean for federal enforcement of drug laws outside Colorado?  Won’t anyone drug dealer be able to cry “Selective enforcement!”? 
  • I’ve never called for anyone’s impeachment, but when a president consciously refuses to enforce a duly passed and constitutional law, what else do you need?  These recent actions, far more clearly that lying about an affair, constitute an impeachable offense. 

Unfortunately, this is the latest travesty of an administration that just doesn’t get it.  Oh, wait, I think I understand it all now – they’re all high!!


  • Independent voter says:

    This is a great post, LtI, but no matter what, the almighty dollar will decide. Look at the tax revue that CO is adding to its coffers and consider what other states must be thinking. This is a huge money maker and the growers can’t keep up with demand.

    Although I have never used dope (named that for a very good reason), I could never understand the rationale for throwing someone in jail for possessing a joint or a small amount of the stuff.
    If alcohol use is legal, then make marijuana legal too. In neither case, has prohibition worked.

    If I had to make a choice, however, I would much rather be on the highway with a pot user than a drunk.

  • I would agree that the war on drugs has been another Vietnam, but still it’s one worth fighting.

  • Eric the 1/2 a troll says:

    “If I had to make a choice, however, I would much rather be on the highway with a pot user than a drunk.”

    Yeah, cause you will never go any faster than 25 mph….

    Don’t typically hear about potheads getting in fights and pulling a gun or knife either. There are positives.

  • Eric the 1/2 a troll says:

    “I would agree that the war on drugs has been another Vietnam, but still it’s one worth fighting.”

    Why? And even if you believe so, there are options to enforcement of prohibition.

    With each passing election, your case gets weaker, LI. This approach is the only sane approach to the problem. The war on drugs must end, and it will.

  • Eric the 1/2 a troll says:

    Btw, talk of impeachment, LI, while making great blog fodder puts you soundly in la-la land. All Obama has to claim is prosecutorial discretion and he is fully protected. And he has a point. Do we spend enormous amounts of money to send federal agents into CO, WA, and looking like 5 more states on the horizon to act as local enforcement agents? I think not. There is clearly better use of our federal enforcement resources.

  • Independent voter says:

    We are inundated with demands from the far right and the TP to get the federal government out of our lives and leave legislation up to the states. Well, states are saying legalizing marijuana should be left to the states. So be it! There is no way in Hades for the Feds to enforce existing federal laws, especially when more states get on the marijuana gravy train. The easy solution is to repeal the federal pot law.

  • Ed Myers says:

    …and tax pot at the federal level and use the revenue to fund medical insurance. Reduced government =reduced DEA budget.

  • Ben Dover says:

    Interesting post, Lloyd. There is real merit to both sides of the legalized pot issue. While Federal Law obviously trumps State Law, I do see some value in the Feds allowing Colorado to be an experiment of sorts. If, somehow, legalization were to create a new tax revenue stream, that would presumably be a good thing. I do have concerns about access to dope by minors – some percentage of minors will get it no matter what, as is the current case. What we will need to watch is whether more kids/more kids at younger ages start becoming users, and whether marijuana becomes a gateway drug. Like many things regarding kids, I think that this question is heavily tied to good parenting, and helping kids make considered decisions. If dope were legalized in the US, I wonder what impact that would have on the drug cartels in Mexico, and on drug trafficking in general. I think much will be learned in the coming months and years, but it could also be that once you let the smoke out of the bottle, it may be impossible to put it back.

  • AFF says:

    Vietnam was worth fighting?

    And the banking thing isn’t primarily about abtaining financing. It’s moreso about having a safe place to put cash money, unless you’d rather they go old school and carry rolls and guns.

  • Liberal Anthropologist says:

    Whether Vietnam was worth fighting, it achieved the goals and stopped the dominos. Thailand, Malaysia, Singaopore, and many more had time and resources to put down communist insurgencies. The Chinese and Russians wasted all their resources on Vietnam.

    You can now argue whether stopping the spread of communism was worth doing anything about.

  • TCJohnson says:

    “’ve never called for anyone’s impeachment, but when a president consciously refuses to enforce a duly passed and constitutional law, what else do you need?”

    The problem with this argument is that every president since Reagan has refused to enforce laws they didn’t like.

    “”If the President may properly decline to enforce a law, at least when it unconstitutionally encroaches on his powers, then it arguably follows that he may properly announce to Congress and to the public that he will not enforce a provision of an enactment he is signing. If so, then a signing statement that challenges what the President determines to be an unconstitutional encroachment on his power, or that announces the President’s unwillingness to enforce (or willingness to litigate) such a provision, can be a valid and reasonable exercise of Presidential authority.”

    That was written by Bernard Nussbaum, a lawyer for the Reagan White House.

  • David Dickinson says:

    We have devolved from a nation of laws to a nation of men.

    Even if Obama was impeached, what would it matter? The Democrat Party is the core problem, with substantial support from Establishment Republicans. The law, the constitution, limited powers, these are all nuisances for a federal government growing more tyrannical by the day.

    Obama is trying to win over young, college-age dopeheads. Not because he needs their votes, but because he needs their insurance premiums or ObamaCare is going to completely implode in 2 years (and it will). I just hope it goes down the toilet before he leaves office. Considering it is his only “accomplishment” it will be poetic justice to see the empty suit finish out 8 years without anything to show for it.

  • So, then, TC, a president can rightfully refuse to enforce anti-discrimination laws?

  • Eric the 1/2 a troll says:

    He can not on constitutional grounds, but he can based on prosecutorial discretion.

  • Prosecutorial discretion does not trump constituional obligations

  • Eric the 1/2 a troll says:

    Tell that to every President ever. Might also tell that to every cop who looked the other way at every rock concert.

  • First of all, prosecutorial discretion is on a case-by-case basis based on individual facts, not wholesale ignoring ther law. Citing Nixon does not do much for your case

  • Eric the 1/2 a troll says:

    “Treasury Secretary Alexander Hamilton directed customs officials not to seek penalties where he believed the offense was minor and no fraud was intended.”


    “As Nicholas Parrillo demonstrates in his excellent new book, “Against the Profit Motive: The Salary Revolution in American Government, 1780-1940,” an express purpose of the shift away from fee-based compensation for law enforcement officials to salaried compensation was to promote greater enforcement discretion.

    In 1896, for example, Congress terminated case-based compensation for U.S. Attorneys, adopting fixed salaries instead. Members of Congress debating the measure complained about “technical,” “vexatious,” and “useless” enforcement actions. They expressly hoped that by taking away case-by-case fees, they would remove the incentive for U.S. Attorneys to pursue all legal violations.

    Congress thus responded to a problem of its own making — the proliferation of strict and often highly technical federal offenses — not by moderating its substantive enactments, but rather by adjusting prosecutors’ compensation to encourage discretionary non-enforcement.”

  • Ed Myers says:

    Interesting, so the way to eliminate government waste and reduce legislative bloat is to pay a bounty on every successful prosecution of federal law. Imagine the kick-backs. Mr. cop, I’ll pay you twice your bounty if you don’t file charges. It increases the cost of crime, and creates a funding mechanism outside of taxes (police would work for less if they could take bribes) but creates a very seedy form of graft-infested government. I’m curious if the TEA party would like it? It is very capitalistic but in many ways very unjust.

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