November 26, 2012 9:07:49 AM
OXFORD -- There are now three contentious matters on which federal law and the laws of at least some states are in conflict.
Earlier this month, voters in Colorado and Washington chose to approve recreational use of marijuana, which remains a Schedule 1 illegal drug under the federal Controlled Substances Act.
Voters in Maine and Maryland chose to recognize same-sex marriage, which runs afoul of the federal Defense of Marriage Act's definition of marriage as being between one man and one woman.
And ongoing, of course, is the strife between some states' laws and policies regarding noncitizens and federal enforcement (or nonenforcement) of federal immigration laws.
People in America will put up with a lot, but one thing people expect is predictability and even-handed application of laws. There's a rational expectation that laws duly passed and put on the books will either be repealed or enforced.
The alternative is to have the occupant of the White House or the Attorney General's Office decide which statutes have meaning and which will be ignored. It says we are a nation ruled by leaders who feel free to pick and choose who and what to prosecute. And that's something we associate with, say, Saddam Hussein, more than with Thomas Jefferson.
Mississippi was among the first states to decriminalize marijuana. It did so in 1979, making possession of less than an ounce an offense that could lead to a citation. Today, possession of a small amount is a misdemeanor.
But that did not and does not conflict with the federal Controlled Substances Act. On the other hand, all states where selling of medical marijuana is licensed and taxed, now joined by the first states to approve recreational highs, are in open and admitted violation of federal law. Specifically, the federal act says marijuana (1) has a high potential for abuse, (2) has no currently accepted medical use in treatment of illnesses and (3) there is a lack of accepted safety for use, even under direct medical supervision.
As recently as last year, the federal Drug Enforcement Administration was asked to revisit its understanding and views, but declined to change a word. However, as announced by Attorney General Eric Holder, who spoke in Oxford last month, federal prosecutors have been instructed to use their limited resources in other pursuits. In other words, states have a tacit blessing to ignore federal law.
The Defense of Marriage Act is less specific. It provides the man-woman definition, then leaves it to states, more or less, to decide the issue individually. It also says a state that has banned same-sex marriage, as Mississippi has, does not have to consider any marriage of a same-sex couple performed elsewhere, as being valid.
Two lower courts have deemed the Defense of Marriage Act unconstitutional, indicating a Supreme Court ruling will be needed. The Department of Justice normally argues in favor of federal laws, but Holder says his staff will take a pass on this one. Whether they agree or disagree is not the issue, he says. Again, he said U.S. attorneys have more important work to do.
Immigration is what it is. No point in rehashing the dispute between lawmakers in Arizona and the Justice Department. The Supreme Court has ruled on that one, making clear that the federal law is supreme -- and if the feds aren't interested in a mass deportation, that's that.
Selective enforcement of laws isn't new. It was even blessed by the Supreme Court back in Vietnam days. Lots of young people dodged the draft, yet the court said it was OK for prosecutors to single out those who burned their draft notices at public antiwar events.
Too, as it happens, growing numbers of people see no reason to limit marriage or ban marijuana and they bear no hostility to immigrants seeking better lives for themselves and their families.
But whether the state laws are enlightened and the federal laws are outdated and wrongheaded is not the issue. The issue is that as long as there are such profound differences, officials, whether left-leaning or right-leaning at the time, are free to decide which laws they like and which laws they don't. Such subjectivity is dangerous, very dangerous.
It's not unreasonable to expect clear laws. It's too scary to have government based on the whims of whoever's in charge.