Obama on legalizing marijuana by executive order: Hey, some jobs are reserved for Congress

posted at 3:21 pm on January 31, 2014 by Allahpundit

I’ve said it before but it’s worth repeating: If you want to know what O thinks he can do unilaterally versus what he thinks simply must be handled by the legislature, you’re better off reading polls than reading law books. He went to war in Libya without consulting Congress because he thought, basically correctly, that there’d be no public backlash to an operation that involved no American boots on the ground. Two years later, boxed in by his own dopey “red line” rhetoric on Syria and facing a potentially messy intervention with no good guys for the U.S. to aid, he decided magnanimously to consult Congress before attacking. Immigration is the same thing in reverse. Two years ago, with the election just months away and his base watching, he decided he could issue a de facto amnesty for DREAMers by ordering DHS to exercise “discretion” in removing young illegals. Today, with fears of a backlash during the midterms if he went ahead and did the same thing for the rest of the illegal population, he’s decided that immigration reform can and must be addressed by Congress. Whether that position will hold or whether he’ll have yet another change of heart about his executive authority after the election, only he knows.

War and immigration are two cases, though, in which he’s exercising power that he arguably doesn’t have. Are there any cases where the opposite is true, i.e. he pretty clearly does have the power to act unilaterally but insists that his hands are tied until Congress does something? Why, yes: On marijuana, as Jacob Sullum explains. Generally speaking, the president can lawfully act by executive order if he’s acting under a power granted to him by the Constitution or a power delegated to him by Congress. As it happens, Congress did delegate an important power to him (or, more specifically, to the Attorney General) when it passed the Controlled Substances Act — the power to classify, or declassify, particular drugs as substances sufficiently dangerous that the federal government should control them. See section 811(a) at the last link; section 811(b) requires the AG to seek the opinion of HHS on the substance’s medical/scientific benefits and harms, but the final decision apparently is ultimately his. (Unless, that is, HHS says the substance shouldn’t be controlled, in which case the AG is bound by that finding.)

If O’s not prepared to go the full nine yards on declassifying marijuana, he and Holder could at least move marijuana to a lower “schedule” than the Schedule I classification it has now. See Section 812(b)(1) for the relevant factors. It’d be easy to argue for moving weed to Schedule III, but why would O want to make that argument when he could boot this very contentious issue to Congress? (Imagine how angry pharma lobbyists would be with Democrats if the president blindsided them with an EO legalizing pot.) Nothing wrong with an executive deferring to the people’s representatives, even when he’s authorized to act on his own, but there’s really no rhyme or reason to O’s vacillations on presidential power. Except the polls, of course.

In lieu of an exit question, read Politico’s deep dive into Obama’s verrrry broad use of executive authority to shape the law in all sorts of ways you’re not paying attention to.

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Pot will be legalized before ’16…

OmahaConservative on January 31, 2014 at 3:23 PM

Don’t let Nick Gillespie hear this. He’ll be so distraught.

nobar on January 31, 2014 at 3:25 PM


My respect for him grows by the second.

Schadenfreude on January 31, 2014 at 3:26 PM

He always looks like Lenin and Mussolini produce a progeny.

Schadenfreude on January 31, 2014 at 3:26 PM

Somebody ask Barky to impeach himself by executive order. I’m tired of waiting on his “opposition.”

viking01 on January 31, 2014 at 3:26 PM


Schadenfreude on January 31, 2014 at 3:27 PM

Tapper even almost corrected Obama – who was just simply wrong, or lying, before he thought better of it and let it go.

notropis on January 31, 2014 at 3:28 PM

So basically he’s going to vote “present” when it doesn’t benefit him politically?

I’m shocked

Ditkaca on January 31, 2014 at 3:28 PM

This is the result of years of sodomizing from commie Frank Marshall Davis.

Obama is a bottom for sure.

Murphy9 on January 31, 2014 at 3:30 PM

Dave May Be Here Soon.

Del Dolemonte on January 31, 2014 at 3:30 PM

So basically he’s going to vote “present” when it doesn’t benefit him politically?

I’m shocked

Ditkaca on January 31, 2014 at 3:28 PM

Seriously, why would you think he would do anything different? All he has ever done is vote present, unless it was to vote for killing babies.

Johnnyreb on January 31, 2014 at 3:32 PM

You need a federal license to possess marijuana legally, as far as the feds are concerned. They just rarely issue them, and only to labs and such.

Congress can still act on its own, so long as Pres. Dingleberry doesn’t veto it: H.R.499 — 113th Congress (2013-2014)

Akzed on January 31, 2014 at 3:34 PM

Dave May Be Here Soon.

Del Dolemonte on January 31, 2014 at 3:30 PM

Dave is a state of mind. And when you’re wasted, Dave’s never there.

/the lights are on but nobody’s home

Paul-Cincy on January 31, 2014 at 3:42 PM

Obama’s got a pen and a phone, but no bong, I guess.

Curtiss on January 31, 2014 at 3:44 PM

Man, the Choom Gang is going to be so disappointed with Barry.

Bitter Clinger on January 31, 2014 at 3:47 PM

Dog Eater lost his pen.

Bishop on January 31, 2014 at 3:48 PM

Doesn’t this racist half white president understand that the war on drugs is oppressing minorities?

libfree must be so disappointed.

gwelf on January 31, 2014 at 3:49 PM

He doesn’t want to be remembered as the first doper President.

NavyMustang on January 31, 2014 at 4:01 PM

…JugEars should take action!…then he can quit hiding his stash!

KOOLAID2 on January 31, 2014 at 4:15 PM

Pot will be legalized before ’16…

OmahaConservative on January 31, 2014 at 3:23 PM

Some time in the early 90’s my cousin and I were sitting on the roof of his house drinking beer and I predicted that MJ would be legalized in about 20 years due to demographic, and beginning to shape up that I wasn’t that far off on the timing. It might have happened sooner but for 9/11, I think. The effort on the far-right to eradicate MJ and ruin peoples lives who use it has failed and is no longer electorally viable. Most of us grew up hearing all of the anti-MJ propaganda that we later learned was grossly misleading or outright fictitious and have seen through a lifetime of BS. A new wave of BS is not going to change public opinion on this, it’s time to accept the inevitable and try to do it gracefully.

FloatingRock on January 31, 2014 at 4:41 PM

He was gonna sign the executive order until he got high…

Fallon on January 31, 2014 at 5:31 PM

Presidential Executive Order 17-2,034

15 Jan 2017

I, Your Great And All-Knowing President(For The Next Two Days Anyway) hereby repeal the Second Amendment to the Constitution, because it’s stupid.

I also hereby legalize all recreational drugs, the more wack the better.

If nobody has a gun, and everybody’s stoned, it’s Utopia and Eternal Peace, Man!

As for you conehead bitter clingers- suck it.


Your Perfect Messiah

Yes, I expect him to drop a stinkbomb like this on his way out.

clear ether


eon on January 31, 2014 at 7:26 PM

New D voters

Schadenfreude on January 31, 2014 at 7:57 PM

Obama is referring to the power reserved to Congress for naming Post Offices.

virgo on February 1, 2014 at 12:41 AM