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Trump and Sessions Are Right on the Drug War, Partly


Imagine that: the New York Times favoring states’ rights. Did you ever think you’d see that day?

No, the Times’ editorial board doesn’t exactly put it that way, but that’s the import of its position with respect to President Trump’s order to Attorney General Jeff Sessions to enforce federal marijuana laws in states that have legalized or decriminalized marijuana or enacted medical marijuana laws.

In an January 7 editorial entitled, “Jeff Sessions’ Endless War on Marijuana,” the Times argues that Sessions should continue the Obama policy of not enforcing federal marijuana laws in the states that have legalized or decriminalized it. In doing so, the Times is essentially arguing that the states, not the federal government, should have the final say on drug-law issues. In other words, “states’ rights.”

But the Times has it wrong, just as Obama did. Under the long-established concept known as the “rule of law,” it is incumbent on Trump and Sessions to enforce federal drugs laws against everyone across the board, including people in the states that have legalized or decriminalized marijuana.

In a society based on the rule of law, criminal laws enacted by Congress, no matter how bad or immoral, must be enforced across the board against everyone, equally and impartially.

In a society  based on the opposite principle — the rule of men — political leaders have the power to select which people they wish to enforce criminal laws against. That’s the essence of tyranny — the power of the ruler to decide who is going to have to comply with the law and who gets exempted from the law.

The rule of law is a necessary perquisite to a free society. Obviously, it is not a sufficient condition for a free society. Drug laws themselves are a good example. Even if they are being equally enforced, by giving the state the power to punish people for simply ingesting what might be considered a harmful substance, drug laws destroy freedom.

Once a ruler has the power to exempt whoever he wants from enforcement of the law, these privileged people immediately lose the incentive to get the law repealed. If marijuana growers and consumers in California, Colorado, Washington, and dozens of other states that have legalized marijuana in some form or fashion do not risk criminal prosecution for violating the federal drug laws, they aren’t likely to spend much time, effort, or money getting Congress to repeal federal drug laws, even though their fellow citizens in other states are suffering the ravages of the law’s enforcement.

But watch what happens if Trump and Sessions begin enforcing federal drug laws in the states that are currently exempted from enforcement. I’ll guarantee you: These new victims of federal marijuana laws are going to scream like banshees, joining people in other states who are demanding that Congress repeal marijuana laws (and, ideally, all other drug laws.)

The Obama and the Times’ position is that law enforcement personnel and prosecutors have the right to prioritize law enforcement. True, but that principle applies only to broad categories of crimes that government might choose to not enforce because of limited resources. For example, a state might decide that it lacks the resources to enforce laws against violent crime and laws against prostitution. It decides to focus its limited resources against murderers, rapists, and robbers and leave the prostitutes alone.

In that case, however, everyone within the affected class — e.g., prostitutes — is being treated equally. That is, the state is not picking and choosing between prostitutes to decide which ones are going to have to go to jail and which ones are going to get a pass. If the ruler were to do that, that would constitute a violation of the rule of law, the very essence of tyranny.

The Obama/Times’ position is that it’s rational for federal law-enforcement personnel to exempt states that have legalized marijuana from federal drug laws. Not so. There is nothing that says that a state has to enact drug laws in the first place. Let’s assume, hypothetically speaking, that only one state and the federal government had enacted drug laws at the inception. Does that mean that it would be fair and equitable for the feds to enforce their drug laws in only one state? Of course not. Again, the rule of law requires that once the law is enacted, it must be enforced against everyone in the nation, fairly and impartially.

Unfortunately, the Times editorial board cannot bring itself to call for the only rightful solution there is: That Congress repeal federal marijuana laws and, ideally, all other federal drug laws. The Times’ editorial board dances around the issue but just cannot bring itself to demand that Congress dismantle the federal government’s decades-long failed and destructive war on drugs. Instead, the Times’ is willing to leave federal marijuana laws on the books and simply let the president continue wielding arbitrary and dictatorial power to decide who the law will be enforced against.

By contrast, the editorial board at the Los Angeles Times gets it right, sort of. In a January 5 editorial entitled “Only Congress Can Keep Jeff Sessions’ Reefer Madness in Check,” the LA Times writes:

This is a problem only Congress can fix. It’s time for lawmakers to relax the laws on marijuana. The nation’s history on marijuana laws is framed by racism and over-enforcement in minority communities…. Instead of making matters worse, Trump could help fix the problem by pushing Congress to pass new laws relaxing federal controls. It’s time to bring our ossified laws over marijuana use into the 21st century. Reviving harsh federal laws from a bygone era is not the solution.

Unfortunately, neither the New York Times nor the Los Angeles Times confronts the obvious: Under the U.S. Constitution, the federal government has always lacked the power to enact drug laws. That’s, in fact, why people needed to amend the Constitution to permit the federal government to enact Prohibition of alcohol — because the Constitution did not delegate the power to punish people for possessing or distributing alcohol or any other drug. Thus, a constitutional amendment was needed to give the federal government that power.

It’s no different with drug laws. The Constitution doesn’t give the federal government the power to punish people for possessing or distributing drugs any more than it does for possessing or distributing booze. Why has most everyone (libertarians excluded, of course) given the federal government a pass on what has always clearly been an unconstitutional exercise of power?

Then there is the utilitarian case for legalizing drugs, especially at the federal level: After decades of warfare, everyone acknowledges that the drug war has failed to achieve its intended goal. Even worse, it has produced widespread violence, death, destruction, corruption, bigoted enforcement, overcrowded prisons, and massive ruination of lives.

Most important, the drug war has played a major role in the destruction of liberty and privacy in America. Freedom entails the right to ingest anything one wants, no matter how harmful it might be. What a person puts into his mouth is simply none of the government’s business, either at the state or federal level.

There is but one solution to the horrors of the drug war — not to reinforce tyranny by letting the president exercise dictatorial enforcement powers but rather by repealing all drug laws, both at the federal and state level.

This post was written by:

Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.