Constitution Check: When does a policy choice become abdication?
Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at the controversy about choices federal agencies have made about enforcing immigration and marijuana laws and the issue of state sovereignty.
THE STATEMENTS AT ISSUE:
“There is no doubt that Congress intended the Controlled Substances Act to serve the purpose of making all manufacture, sale, and possession of regulated drugs illegal, except to the extent explicitly authorized by the Act. Nothing about the current Executive Branch’s relaxed view of enforcement obligations under the Act changes the fact that Congress intended the Act to prohibit the type of legalization [of marijuana] effectuated by Colorado.”
– Excerpt from a lawsuit filed directly in the Supreme Court by the states of Nebraska and Oklahoma, seeking to shut down the commercial marketing of marijuana in Colorado under a policy legalizing the personal and medical use of that drug in the state. Yesterday, the Justices asked the Justice Department for the federal government’s reaction to the lawsuit.
“The [two] states’ quarrel is not with Colorado but with the federal government’s ‘relaxed view of enforcement obligations under the CSA.’…But if the states’ goal is to close alleged ‘gaps in the federal drug control system,’ they should do what they have already done in another setting: sue the federal government for declining to enforce federal law” – referring to a lawsuit pending in federal court in Texas against the Obama administration’s policy of deferred deportation of perhaps 4 million immigrants who are in the U.S. illegally.
– Excerpt from a brief filed by the state of Colorado in the Supreme Court, urging the Justices not to allow that state to be sued directly in the court by two neighboring states over Colorado’s policy on marketing of marijuana for personal and medical uses.
WE CHECKED THE CONSTITUTION, AND…
Since the federal government started growing, back during the Abraham Lincoln presidency with the coming of the Civil War, followed by explosive growth during the Great Depression and on into the modern era of global wars and world-shaking economic crises, the agencies at the national level have had wide and growing discretion about how they use their powers. The state governments have long complained about what this does to their primary role as the governments closest to the people.
But America is now witnessing a new phenomenon in this historic battle over the structure and operation of federalism: States have begun to complain about the burdens that they say fall upon them when the agencies of the national government choose to cut back on their enforcement of federal laws. And the states are using lawsuits to make that complaint.
For months, one of these lawsuits has been unfolding in the federal courts, first in a federal trial court in Brownsville, Texas, and more recently in a federal appeals court that decides cases for the region that is organized as the Fifth U.S. Circuit. In that case, 26 states have sued the federal Department of Homeland Security, contending that President Obama has abdicated the national government’s responsibility for enforcing the federal immigration law against illegal entry into the United States.
They are challenging the Obama policy of deferred deportation for upwards of 4 million undocumented immigrants, contending that this policy of delayed enforcement or even non-enforcement is imposing financial burdens on the states. So far, that challenge has been succeeding: a federal judge has blocked the deferred deportation policy, while the states’ lawsuit goes forward in that court. The Obama administration is trying now to persuade the Fifth Circuit Court to lift that order, so that the new policy can take effect.
The administration has contended that it has not abdicated its duties under immigration law, but is simply using its official discretion about where to apply the limited resources it has to enforce those legal requirements. Undocumented immigrants who have broken no other laws, and are living peacefully in this country, should not be the first to be sent to their home countries, the administration has argued.
Among the states who filed that lawsuit are Nebraska and Oklahoma. Those are the two states now pursuing an alternative legal strategy, over enforcement of the federal law that makes trafficking in marijuana a crime. Claiming that they had no other legal option, those two states filed a lawsuit directly in the Supreme Court (under the court’s constitutional authority to decide “original” legal disputes between states), asking the court to rule that federal anti-marijuana policy trumps Colorado’s voter-approve scheme to allow the production and sale of marijuana for personal recreational use and for medical use.
The two neighboring states, in their lawsuit, carefully avoid claiming that the federal government has abdicated its role in enforcing the marijuana prohibitions of federal law. They speak only of “relaxed” enforcement. But the practical effect of their legal challenge is that the lack of enforcement has created a gap on marijuana marketing, and Colorado had moved into that gap with its social experiment in legalizing marijuana, with its supposed spillover effect on marijuana moving illegally into neighboring states, causing enforcement woes.
Once again, the core of the complaint is the policy choices that agencies of the federal government have made. What those agencies see as the use of policy discretion is being portrayed as a threat to state sovereignty from non-enforcement of national law.
Just as the Texas lawsuit on the new immigration policy is a fundamental test of state governments’ right to use the federal courts to advance their interest in enforcement of national law, so does the Nebraska and Colorado claim in the Supreme Court match that test. The immigration case is likely to run its course in lower courts before the Nebraska and Colorado case on marijuana policy really begins to develop before the Justices.
But, which one reaches the court the first is not as important as that, at some point, the Justices provide some new constitutional guidance on the authority of states to compel the national government to act when it chooses, for its own reasons, to ease off or to stand down on enforcement.
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