And yet I'm secretly rooting for California's Proposition 19 this year, the state's ballot initiative to legalize marijuana. And what's the difference? Is it simply that I don't like federal drug laws--particularly with regard to marijuana--but favor health care reform? Perhaps. Everyone's a hypocrite sometimes. This hypocrisy occurred to me today when I found myself disappointed that the Attorney General announced his intent to crack down on pot if Prop 19 passes:
SAN FRANCISCO — The U.S. government will "vigorously enforce" federal laws against marijuana even if voters next month make California the first state to legalize pot, Attorney General Eric Holder says.
Holder's warning, contained in a letter to ex-federal drug enforcement chiefs, was his most direct statement yet against Proposition 19, and it sets up another showdown with California over marijuana if the measure passes.
Let me return briefly to the example I brought up in "Happy (Belated) Constitution Day": Thomas Jefferson and his Democratic-Republicans approving the Louisiana Purchase, an action not explicitly authorized in the Constitution. An allegedly strict constructionist made a funny argument to me in favor of Jefferson's decision. Jefferson's decision was plainly constitutional, I was told, because the Louisiana Purchase was the result of a treaty with France. And since the Constitution does grant the federal government the treaty power, there is no issue here. In practice, land acquisitions are often part of treaties, after all. Of course, this is true; Article II, Section 2 does tell us the President has that power:
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur;
But it seems to me that there's something odd about this. Accepting it requires acknowledging that enumerated powers of the government come with various, potentially wide-ranging, implied powers that are not explicitly written down. And this is a very Hamiltonian sort of view--he used it to win the argument that a National Bank (not explicitly authorized in the Constitution) was constitutionally acceptable, a position Jefferson and Madison didn't share. One might think that conceding that the Constitution allows for actions not enumerated in it completely undermines the strict constructionist position. After all, the philosophy that the Constitution allows for actions not explicitly inked on the page is what loose construction is all about.
But let's step back to Proposition 19. Drug policy isn't my forte so I found myself wondering wherefrom Congress derived its authority to regulate and outlaw drugs. Now, usually I'm fairly sympathetic to federal power. But it's well-known that the Prohibition on alcohol required the Eighteenth Amendment to the Constitution so I was curious as to how Congress was able to prohibit other drugs without something similar. Naturally, I started with a trip to the Wikipedia article on the Controlled Substances Act to get my bearings on the subject. And I was surprised to find the justification for that law:
The Congressional findings in 21 U.S.C. §§ 801(7), 801a(2), and 801a(3) state that a major purpose of the CSA is to "enable the United States to meet all of its obligations" under international treaties - specifically, the 1961 Single Convention on Narcotic Drugs and the 1971 Convention on Psychotropic Substances. The CSA bears many resemblances to these Conventions. Both the CSA and the treaties set out a system for classifying controlled substances in several Schedules in accordance with the binding scientific and medical findings of a public health authority.
The feds can regulate drugs because we agreed to in a treaty? Now that's fascinating. Very reminiscent of the argument that Jefferson could double the size of the United States because a treaty was the vehicle for doing so.
But wait a minute. Does this imply that the federal government can do absolutely anything as long as its actions are in pursuance of treaty obligations? For example, the U.S. is a signatory to the Universal Declaration of Human Rights. This isn't a treaty. But suppose some administration took that language and stuck it into a "treaty" with, say, Canada. Both nations pledge to each other that they'll abide by those principles. Of course, treaties require approval by 2/3 of the Senate so adopting that faux treaty would be only slightly easier than simply passing a constitutional amendment. But this is a thought experiment so let's suppose that this U.S.-Canada treaty is ratified by the Senate and compliance with the Universal Declaration of Human Rights becomes a cornerstone of our relationship with Canada. That means, for example, our treaty obligations would require us to match policy action to words like these:
Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
Presumably the federal government would then have carte blanche to regulate and/or provide health care in any way it chose, no (constitutional) questions asked. All because the treaty power is written into the Constitution. If strict constructionists buy that, then isn't the treaty power essentially an infinitely elastic clause (much more so than the actual Elastic Clause)?
For the most part, treaties don't seem to be used this way (perhaps in no small part due to the Senate supermajority approval stipulation) but that sure opens some doors, doesn't it? Anyway, anyone want to help me reconcile my revulsion to state nullification of the health reform law with my secret affection for California's attempt to locally overturn federal prohibitions on pot?
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