In an unrelated case, Federal district court has already found parts
of the order to be unlawful. The President also has claimed enforcement
discretion in failing to enforce other Federal criminal laws.
The Controlled Substances Act prohibits marijuana possession
nationwide. Under the supremacy clause of the Constitution, State laws
to the contrary are unconstitutional.
Normally the Federal Government sues States that enact such laws. But
when Colorado and other States legalized marijuana, the Obama
administration directed Federal law enforcement to refrain from using
its resources to enforce Federal law in those States. It did not make
individualized prosecutorial decisions but a very blanket refusal to
enforce Federal law, contrary to the oath.
Nebraska and Oklahoma, rather than the Federal Government, have sued
Colorado, as those neighboring States argue they face a significant
increase in marijuana and other drug-related harms as a result of the
To make matters worse, Attorney General Holder is expanding his
refusal to apply Federal marijuana laws to Indian reservations. Those
reservations depend upon Federal law enforcement.
He plans to allow tribes to petition unelected local prosecutors to
decide whether the same nonenforcement of marijuana laws' policy will
apply to those reservations. Apart from the rule of law question, it
must be kept in mind that these reservations are in States that still
want to see marijuana illegal. As a matter of policy, rates of illegal
drug use are higher on Indian reservations, with all of the associated
health and crime consequences.
Again, this goes to the heart of the rule of law.
Does anyone believe if a State decided dealers could sell guns
without conducting the federally required background checks, that the
Obama administration would ignore those States? Anyone who approves
what President Obama has done under the guise of enforcement discretion
will have no cause to complain about a future President's decision to
allocate scarce resources.
For instance, he could decide that the ObamaCare individual mandate,
which is constitutional according to the Supreme Court--only because it
is a tax--will not be enforced against anyone who does not buy
government-approved health insurance.
President Obama has also violated the law when he released five
Taliban fighters who were detained at Guantanamo in exchange for an
American sergeant. As the nonpartisan Government Accountability Office
concluded, the failure to notify Congress 30 days before such transfer,
and to provide a justification, was a violation of law.