Despite what headlines say, marijuana is still illegal in Colorado. Colorado is in the United States, where marijuana is illegal, according to the federal Controlled Substances Act.
Yes, Amendment 64 was passed in Nov. 2012, lifting Colorado’s weed ban. But under Article VI of the U.S. Constitution, federal law still trumps state law. As long as the federal ban remains, the will of the Coloradan people doesn’t count for much legally.
So it’s odd that Iraq war veteran Sean Azzariti, who bought the first legal-for-recreational-use-by-Coloradan-standards marijuana, allowed The Washington Post to publish a photo of him committing a crime. It’s been over a month since Azzariti appeared in The Washington Post, but he has faced no charges.
Why is a criminal industry flourishing in Colorado with no resistance from the Department of Justice?
Priorities, we’re told. On August 29th, U.S. Deputy Attorney General James Cole sent a memo to all U.S. Attorneys saying that the DOJ should continue focusing on eight priorities in enforcing the Controlled Substances Act’s ban on marijuana. These priorities include preventing violence, drugged driving, and distribution to minors. Traditionally they leave other areas of enforcement to lower jurisdictions.
The memo stated that regulatory systems such as the one in Colorado support the priorities well enough that state law can remain “the primary means of addressing marijuana related activity.” Apparently, the DOJ will rely on the states, even where it doesn’t prosecute minor offenders.
Fair enough. Opportunity costs are important. If you’re working on one case, you can’t be working on another, so it makes sense to prioritize. But when prioritization means a state can set up an entire industry around a federal crime, there’s a problem.
Obviously, the DOJ can’t prosecute everyone who buys pot in Colorado, but it should prosecute some offenders. It should show a commitment to enforcing the law. In his memo, Cole pointed out that marijuana is still illegal and that the DOJ can still prosecute any user, but actions speak louder than words and there’s been no action.
My critique of the DOJ really isn’t about marijuana. If it were about marijuana, I’d be all for it. Prohibition is a bad policy, unsuited for free men, ineffective, and harmful. Again, I want to live in a country where marijuana is legal.
But that’s largely because I want to live in a free country. The DOJ’s prioritization, though, threatens that by undermining the separation of powers and the rule of law.
First, the separation of powers. Men sin. Power exacerbates this, in proportion to its strength. The Constitution’s separation of powers addresses this threat. With authority split among three branches, each person within those branches has less power, and thus less temptation and capacity for abuse. By focusing on its own eight priorities instead of the Controlled Substances Act passed by congress, the DOJ is undermining this separation by, in effect, legislating from the executive branch. Constitutionally, the legislative branch, Congress, makes and unmakes the laws. The executive branch enforces them.
Legislating gives you a lot of power. Enforcing laws gives you a lot of power. Doing both gives you too much power. Wittingly or not, the DOJ is on its way to too much power.
Congress’s power lies in making laws. If the DOJ can get away with failing to enforce those laws, the laws are powerless. Congress is defunct, absorbed by the executive. That’s not where we are now, but that’s where we’re headed.
Further, the DOJ’s prioritization undermines the rule of law. A nation with industries governed by memos is not a nation of laws but of individual men and their whims. Technically, the marijuana entrepreneurs and their customers in Colorado are criminals. Prosecutors need only decide to enforce the federal law, rather than state, and they’re in trouble. The tenuousness of these Coloradans positions’ compromises their liberty. Can you really build a free life on the whim of a prosecutor?
Admittedly, the federal ban on marijuana is an unconstitutional threat to liberty. Yes, legalizing marijuana is a great gain for liberty. But violating the Constitution further does more harm then good.
Abandoning separation of powers and the rule of law is not worth it.
