President Obama did an interview with Rolling Stone where he attempted to defend his administration’s continuing crackdown on medical marijuana providers and patients, in clear violation of his repeated promises. And his explanation was blatantly hypocritical:
I never made a commitment that somehow we were going to give carte blanche to large-scale producers and operators of marijuana – and the reason is, because it’s against federal law. I can’t nullify congressional law. I can’t ask the Justice Department to say, “Ignore completely a federal law that’s on the books” . . . .
The only tension that’s come up – and this gets hyped up a lot – is a murky area where you have large-scale, commercial operations that may supply medical marijuana users, but in some cases may also be supplying recreational users. In that situation, we put the Justice Department in a very difficult place if we’re telling them, “This is supposed to be against the law, but we want you to turn the other way.” That’s not something we’re going to do.
Really, Mr. President? The rule of law is just so damned important, and your duty to enforce the law at all times so sacrosanct, that you can do nothing else in this situation? Then please explain why you have chosen not to prosecute any former Bush officials for torture, in clear violation of both federal law and our treaty obligations? Explain why you have quashed any investigation into illegal wiretapping by the NSA, in clear violation of FISA? Oh yeah, that rule of law thing only applies when it’s politically convenient for you. When it doesn’t, it means nothing at all.
Glenn Greenwald makes the same point:
That’s about as vivid an expression of the President’s agenda, and his sense of justice, and the state of the Rule of Law in America, as one can imagine. The same person who directed the DOJ to shield torturers and illegal government eavesdroppers from criminal investigation, and who voted to retroactively immunize the nation’s largest telecom giants when they got caught enabling criminal spying on Americans, and whose DOJ has failed to indict a single Wall Street executive in connection with the 2008 financial crisis or mortgage fraud scandal, suddenly discovers the imperatives of The Rule of Law when it comes to those, in accordance with state law, providing medical marijuana to sick people with a prescription.
He also links to this piece at Firedoglake, which points out that the Controlled Substances Act does, in fact, give the president exactly the kind of discretionary authority that he claims he doesn’t have:
Drugs are governed under the Controlled Substance Act, and the important thing is that this law explicitly gives the executive branch the power to unilaterally change the legal status of particular drugs. Obama wouldn’t need to “nullify congressional law,” because he currently has the legal power to change marijuana’s classification.
Marijuana is categorized as schedule I, which means it legally has no accepted medical use. This is why medical marijuana, while legal under some state laws, is illegal under federal law.
However, the law explicitly gives the executive branch the power to change the scheduling of particular drugs without needing Congressional action. Obama can instruct the relevant agencies under him to take an honest look at the research and reschedule marijuana so it qualifies as having legitimate medical uses. The Obama administration could easily and justifiably move marijuana to, say, schedule III, which happens to be the same schedule that synthetic THC is in, making medical marijuana legal under federal law.
There would be nothing unusual, extraordinary or legally suspect about Obama doing this. The executive branch has often moved certain drugs to lower or higher schedules based on new data without Congressional involvement. In fact, multiple sitting governors have petitioned the Obama administration asking him to move marijuana to a lower schedule, so he should be aware of the flexible authority he has.
Obama is not some hapless victim whose actions on this issue are constrained by congressional law. The truth is pretty much the exact opposite. Under current law Obama effectively has the power to unilaterally make medical marijuana legal. Obama is not legally forced to wage a war on medical marijuana; it is something his administration is actively choosing to do.
The reason he doesn’t do so, of course, is because he doesn’t want Republicans to be able to attack him as “soft on drugs.” But he can’t say that, so he lies about it and offers clearly hypocritical excuses instead. The lesser of two evils is still evil.