The foundations of American law and government are burned into our minds at a young age. Congress makes the laws, my fifth grade teacher lectured, while the courts uphold the laws and the Executive Branch enforces them. This premise—the separation of powers doctrine in an elementary nutshell—is one of the primary foundations on which the system of American governance is laid. Each component of government is tasked with certain duties, spelled out in the Constitution, and it is the responsibility of each branch to complete these duties. We have all heard the buzzwords: Checks and balances, branches of government, veto, and judicial review.
It is natural, of course, that these powers should overlap, and one branch may thereby intrude on the powers of another. Arthur Schlesinger wrote a treatise on this premise of seizing powers, arguing in The Imperial Presidency that the President had largely wrested from Congress the task of managing foreign relations. And in areas where the Constitution is vague or unclear about the powers vested in each branch, the branches have simply taken it upon themselves to seize powers. It is why the United States has activist courts, and Congressional hearings on every topic under the sun, and executive orders by the thousands.
But what happens when the branches come into contact with each other, thereby translating a policy disagreement into a Constitutional one? In the 1830s, for instance, Chief Justice John Marshall ruled that the United States government did not have the right to remove the Cherokee Tribes from their lands in Georgia. President Andrew Jackson, with characteristic succinctness, stated, “The Chief Justice has made his ruling. Now let him enforce it.” And so illegally, President Jackson initiated and led the removal of countless Cherokees from their ancestral homelands.
Frighteningly, the practice of ignoring or overstepping the powers of other branches continues to this day. For instance, the federal drug laws governing mandatory sentencing have long been considered overly strict (they arose to counteract the crack epidemic of the 1980s), and so President Barack Obama and Attorney General Eric Holder have long talked of reforming the system so as to reduce prison costs and purge the system of perceived racist taints (cocaine, considered the “white” drug of choice, carries much lower punishments than crack, the “black” drug).
In the United States, changes to the law are made through bills, which are deliberated by Congress, passed by Congress, and signed into law by the President. That strategy of legality, it seems, does not appeal to the Obama administration. Instead, bypassing Congress altogether, Attorney General Holder announced in August that the Department of Justice policy would now order U.S. Attorneys to simply stop charging drug crimes that carry mandatory sentences, when charging nonviolent and non-gang-related defendants. Holder suggests that the U.S. Attorneys find other, lesser charges with which to prosecute the offenders.
Aside from the obvious deception involved here (is it ethical to charge someone for a lesser crime when he or she is guilty of a greater crime?), the Constitutional implications of this action are enormous. If the Attorney General can instruct the Department of Justice not to charge nonviolent non-gang drug defendants with certain crimes, does the logic extend to other crimes? Assume, for example, that the Attorney General decided that the crime of kidnapping children was too heavily punished. Employing the logic of Holder’s nascent drug policy, could the Attorney General simply instruct all prosecutors to cease the prosecution of these kidnappers?
The decision, on behalf of the executive branch, to abstain from enforcing one law is a slippery slope towards abstaining from enforcing many laws. Should this trend continue, an Attorney General could instruct U.S. Attorneys to end the prosecutions of any law which conflicts with the President’s political agenda. This practice therefore must end immediately. The executive branch, of which the Attorney General and the entire Department of Justice are members, are tasked with enforcing the law, and not deciding what the law should, in their minds, read. Fortunately, the United States government has an outlet for changing a law: Congress.
If the Obama administration abhors the mandatory drug sentences, there is nothing to stop them from attempting to initiate and lobby for a Congressional bill solving the problem. Tackling the problem without Congressional approval is probably illegal. In order to end this disturbing practice of making the law itself, the Obama administration should pursue traditional—and Constitutional—routes to accomplish its policy goals.