Republicans position themselves as the party of the Constitution and limited government.

But like the Democrats they constantly criticize, Republicans exercise a great deal of discretion in the application of their constitutional fidelity.

Last weekend, discretion took center stage as Republican lawmakers grilled Attorney General Eric Holder on his enforcement of federal law, specifically marijuana laws. Holder argued the executive branch has discretion in enforcement, and the Republicans showcased their discretionary constitutional principles.

“The Justice Department’s decision not to enforce the Controlled Substances Act in states whose laws violate federal law is not a valid exercise of prosecutorial discretion, but a formal department-wide policy of selective non-enforcement of an Act of Congress,” House Judiciary Committee Chairman Bob Goodlatte (R-Va.) proclaimed.

Rep. Jason Smith (R-Mo.) piled on.

“Federal law takes precedence,” Smith said. “The state of Colorado is undermining…federal law, correct? Why do you fail to enforce the laws of the land?”

Of course, laws prohibiting marijuana don’t really count as a legitimate “laws of the land.” The federal government lacks any constitutional authority to regulate a plant within the borders of a state. The Constitution delegates no power for plant regulation. As Alexander Hamilton asserted in Federalist 78, “There is no position which depends on clearer principles, than that every act of a delegated authority contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the constitution, can be valid.”

If you question the fact that the federal government lacks the constitutional authority to prohibit marijuana, ask yourself this question: why did it require a constitutional amendment to prohibit alcohol?

So, why the Republican obsession with the enforcement of marijuana laws? Are they selling out the Constitution to score political points against Democrats? Or are they selling out the Constitution in order to advance their policy preference?

Holder actually made a good point during the hearing. He insisted the federal government simply can’t vigorously enforce every federal act.

“We don’t prosecute every violation of federal law,” he said. “We don’t have the capacity to do that and so what we try to do is make determinations about how we use our limited resources.”

That’s what you get when Congress passes too many laws – more than 150,000 pages worth. And most of these acts violate the Constitution in the first place.

Demanding full enforcement of illegitimate federal marijuana laws simply because Congress put them on the books is like demanding a contract killer go forward with a hit simply because he agreed to do it.

The moral response? Stop the crimes rather than enable them.

Instead of insisting that the president enforce unconstitutional acts, Republicans should throw their efforts into getting them repealed. The actions of Smith, Goodlatte and many others in the GOP serve to enable a system that undermines freedom, crushes civil liberties and bloats the federal bureaucracy.

That sure doesn’t sound like the party of the Constitution and limited government.


Mike Maharrey

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