Jeff Sessions Can Punt And It Is Just Fine

Even if you don't like the outcome, what Sessions and the current administration are doing is actually a good thing.

After a stinging loss in the National College Football Championship Monday night, where my Dawgs had to punt more frequently than I would have liked, I had to get a football pun in. Forgive me.

However, I also think it is a very good analogy for what Attorney General Jeff Sessions and the current administration have been doing. Quietly and without a lot of fanfare, unless it comes to DACA or pot, the responsibility for making laws is being pushed back to Congress and interpreting them back to the courts.

Oh the horror! A government that functions the way it was intended rather than by Executive or bureaucratic fiat! Here is a quick snapshot:

  • Approximately 800 regulations under consideration at the end of Obama's term were eliminated.
  • According to the Bureau of Labor Statistics there are approximately 16,000 fewer Federal employees at the end of 2017
  • Dozens of Obama era regulations on the environment and other policy area have been repealed
  • The Administration moved to bring the Consumer Financial Protection Bureau under control
  • The Department of Education has rolled back the destructive Dear Colleague letter guidance

Even more impressive is the fact it seems this is not a haphazard tossing of red meat to appease Trump's base, but a rather deliberate move to reduce Executive power and restore the three branches of government. The most comprehensive discussion I have seen is in National Review. While it goes into significant detail about the remarks made, the article by Josh Blackman begins with this paragraph:

In a series of significant speeches at the Federalist Society’s national convention, the president’s lawyers have begun to articulate a framework for restoring the separation of powers: First, Congress should cease delegating its legislative power to the executive branch; second, the executive branch will stop using informal “guidance documents” that deprive people of the due process of law without fair notice; and third, courts should stop rubber-stamping diktats that lack the force of law.

So our authoritarian Hitleresque President looks like he's doing it all wrong. Reducing the power of the Executive branch and restoring the rightful roles of the three branches is just backwards for a dictator. But you have to look to put the pieces together.

So the two significant speeches by the Attorney General that have all but lit the Left's proverbial hair on fire are quite consistent with the philosophy articulated by Administration's lawyers. The Deferred Action For Childhood Arrivals or DACA, never should have happened. Many argued it exceeded the President's constitutional authority when it was ordered. At one time even President Barack Obama thought it did.

Likewise, the Cole Memo provided guidance about a Federal law related to the classification of marijuana that is not at all unclear. It was guidance to ignore Federal law in some places. In both of these cases, if the law and enforcement are to change, the law has to be changed by Congress.

Sessions and Trump are not alone. A group of legislators, including Senator Mike Lee, started the Article 1 Project in 2016. It was aimed at bringing legislative control over the regulatory agencies when monetary or other penalties were included in regulations. If a rule or regulation has the force of law, wouldn't it be nice if we could hold our elected officials responsible for the outcome? I sure think so.

Not all good decisions are popular. And surprisingly, in what could characterized as a fairly populist administration outwardly, it's leaders are not afraid to make and announce unpopular decisions to restore balance. This is fine. And I hope it continues.

I agree with Sessions regarding the marijuana law. Laws should be enforced. If they are not enforced they should be changed. We have a law in my local county requiring an annual septic inspection that can cost up to $400. The law is not enforced so those complying are penalized. We have legalized marijuana in WA. I voted for it, but now regret my vote. My thought that I did not want someone caught using thrown in jail, but I did not want an industry created.

I'm not sure about the specifics of the Cole Memo, but in general I agree with the principle of federal agencies not enforcing unconstitutional laws. The federal government doesn't have a legitimate power to regulate commercial activity within a state's borders, regardless of what the Supreme Court said in it's egregiously wrong 1942 decision (Wickard v. Filburn). This means that any drugs grown/produced and consumed within the borders of a state are outside the purview of Federal jurisdiction, just as any firearms manufacture and used within the borders of a state that has enacted a version of the Firearms Freedom Act cannot be legitimately regulated by the Federal Government.

Further it is fully within the legitimate powers of the executive branch to show prosecutorial discretion in the enforcement of laws. It is inherent in the power of the president to grant pardons and reprieves. This means that it is completely acceptable for an administration to selectively enforce laws, especially in the manner in which the DACA program worked where the president essentially gave a conditional pardon to certain illegal immigrants.

Found and read the Cole memo, it doesn't even go as far as I did in my assertions about Federal drug regulations above. It merely recognizes that most drug possession enforcement has traditionally been handled by state and local officials under their own laws rather than by Federal officials and provides guidelines on prioritizing investigations and prosecutions so that resources are used in areas of particular Federal concern. The memo's concluding paragraph states in part:
"As with the Department's previous statements on this subject, this memorandum is intended solely as a guide to the exercise of investigative and prosecutorial discretion. This memorandum does not alter in any way the Department's authority to enforce federal laws relating to marijuana, regardless of state law."
So there's no reason to see the Cole memo as a problem, if anything it retains too much illegitimate power in Federal hands.