Holder Does End-Run Around Congress on Federal Drug Laws


ACRU Staff


August 14, 2013

This column by ACRU Senior Legal Analyst Ken Klukowski was published August 12, 2013 on Breitbart.com.

Attorney General Eric Holder has just announced an end-run around Congress and given the far left one of its priority action-items, announcing he will not prosecute drug crimes unconnected to gangs or violence. Ironically, he invoked the conservative principle of federalism to do it.

Congress has enacted stiff penalties for various drug crimes, carrying mandatory minimum sentences. According to a leaked copy of his speech today at the American Bar Association (which is a solidly-liberal lawyers’ organization, not any sort of official body for the legal profession), Holder will announce that he is instructing his 94 U.S. attorneys across the nation not to prosecute certain federal drug offenses unless the criminal suspect is linked to committing acts of violence or part of a criminal gang.

Every prosecutor has prosecutorial discretion. There are always more crimes committed in your jurisdiction than you have the time or manpower to pursue, so each prosecutor decides which cases take priority. Holder is invoking prosecutorial discretion to justify his actions.

There are some drug-related issues many policymakers consider unjust which implicate race. The best example of this is the harsher penalties for crack cocaine as opposed to powder cocaine. The rationale for harsher penalties for crack is that crack supposedly has worse effects on people and thus is more harmful to society.

But doctors we consulted said that any such differences are not so significant to justify different sentencing schemes. The reality is that powder cocaine is a rich-man drug, and crack is a poor-man drug. They’re the same drug, so many on the right agree with the left that they should carry the same sentencing penalties.

But such an instance is the rare exception. Much of the opposition to tough drug laws is driven by either a rejection of traditional morality (saying people should be able to do whatever makes them feel good) or racial politics arguing that all sorts of drug laws are just forms of racism masquerading as law enforcement. It’s long been a priority of the far left to legalize drugs.

All that said, Holder is absolutely correct that law enforcement is primarily a state issue under the U.S. Constitution. Only states (and their local subdivisions, like cities and counties) have police power: general jurisdiction to make laws concerning (1) public safety, (2) public health, (3) personal morality and responsibility, and (4) good social order.

The federal government has no police power in the Constitution, so the sovereign states have most of the power to make criminal laws. Congress justifies many such laws under the Commerce Clause under a far-left and expansive reading of that clause to authorize the invasion of the federal government into countless areas of people’s lives, such as Obamacare.

Holder invokes this federalism principle in this speech, saying, “Some issues are best handled at the state or local level.” The irony here is that Holder is usually a zealous foe of federalism.

When it comes to voting rights, Obamacare, labor laws, guns, and countless other issues, Holder fights one lawsuit after another making the case that the federal government should be a supreme, all-powerful government.

A great federalist case can be made that the federal government should have a strictly limited role in fighting drugs, such as outlawing importing drugs into the country or controlling it when it crosses state lines. And a separation-of-powers argument can be made that federal judges should have more discretion in imposing sentences, rather than Congress declaring minimum punishments. But only Congress can do those things by passing new federal statutes.

So under these circumstances, it looks like yet another instance of lawlessness; President Obama and Attorney General Holder don’t like the federal laws on the books and cannot get Congress to change them, so they’ll just do whatever they want, even though it violates their oaths of office to faithfully execute the laws of the United States.



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