Both the Cole memo and DACA are instances of positive prosecutorial discretion. Both are little more than a refusal to prosecute by prioritizing other crimes and directing resources to more important matters.
With DACA, resources are shifted from finding, prosecuting, holding or deporting “Dreamers” (who were brought here as children generally through no choice of their own) to other groups of illegal immigrants who presumably did have a choice.
With the Cole memo, resources are shifted from overall prohibition efforts to several things that are the direct consequence of prohibition (availability to minors, profits of drug sales going to cartels, violence used in the process of distribution in a black market and other downsides of the drug war), and a couple of issues in need of less regulation than what exists for alcohol, such as driving or use on federal property.
With the Rohrabacher amendment, resources are shifted from prosecuting beneficiaries of state medicinal marijuana laws (from those with illness or pain, to the healthcare industry serving them) when those laws conflict with federal prohibition to other states and recreational users or suppliers.
All three programs were, in my view, positive steps towards better policy and more just than what existed beforehand.
The arguments behind the Cole memo and DACA
DACA is an extension of the birthright citizenship debate, and attempted to answer the question “Is it worth punishing children (or adults brought here as children) for the actions of their parents in order to make America a less attractive option for others who might come illegally?” with the only answer that is moral and consistent with our values.
The Cole memo asks, “What battles of the drug war are most worth fighting, especially when states are asking through federalism if the war itself is even worth it?” and in practice it’s answer kept the feds out of the affairs of the states who had a different view in this purview.
The Rohrabacher amendment attempted to ask two questions. First, “Should states be able to look at pot being on schedule one with drugs like heroin and the qualification that it has ‘no accepted medical use’ and laugh at the absurdity with nullification?” Second, “Should the federal government use it’s resources to punish sick people and the medical professionals attending to them for using medicine that isn’t something like more dangerous legal opiates?“
The first two sets of questions were those that the executive merely asked… of itself. And the executive branch changes every four to eight years.
Both executive programs were simply announced rather than existing rightfully as laws passed by the legislature limiting the reach of another branch. They are nothing more than self-imposed rules that can be dropped at any time by any whim of the President or his men, and both have been or are scheduled to be.
The Rohrabacher amendment is merely affixed to the budget, preventing federal funds from being used against state medicinal marijuana laws. However, it needs to be attached anew to each new budget to continue to provide patient protections. It has passed every year for several, but past performance is no guarantee of future results. It’s current version expires before the end of this month.
The Cole memo and DACA failed because they weren’t legislated
As long as none of these things are codified as stand-alone laws, any protection they offer is fleeting and based on the whim of whoever is in charge (generally somebody hated by roughly half of the country). The advantage of law over executive orders and temporary measures is stability. People can make decisions based on rational expectations not only of what the law says, but of what the law will say tomorrow.
The Trump/Sessions opposition to Cole and DACA provides Congress the opportunity to do the right thing the right way. Cole or DACA written as law rather than given as order, Rohrabacher standing alone rather than sun-setting each year… would at least inform those subject to the law of what they should expect it to be.
Congress has both the opportunity and incentive to do so, especially given how popular these programs are.
Paul Ryan already called for a “permanent legislative fix” to DACA immediately after Trump said he was ending it, saying “At the heart of this issue are young people who came to this country through no fault of their own, and for many of them it’s the only country they know. Their status is one of many immigration issues… which Congress has failed to adequately address over the years“.
Congress must pass laws to settle marijuana and immigration issues for good
With DACA, I suspect Republicans will offer a bill that revives DACA and codifies it with legislation… but it’ll be attached to border security or even funding for the border wall. Democrats could vote against that, but if they do it opens the door to the Republicans being able to say “Hey, look. We told you we wanted DACA and legal immigration, just that we wanted to address illegal immigration as well. Democrats are the ones who voted against DACA and against legal immigrants and for the continuation of illegal migration.“
With the Cole Memo, that might depend on how Sessions acts now that he’s instructed DOJ to ignore it’s directives. But I think that Congress as it’s currently composed could at least make the Rohrabacher amendment permanent, or expand it to recreational states as well… and if Sessions starts an actual crackdown, they likely will.
DACA is supported by the majority country, and the majority of Republicans. Allowing states to legalize pot is supported by the majority of the country, and the majority of Republicans. As far as Republican politicians? Well, getting reelected is supported nearly unanimously by politicians, and this is an election year. I can’t predict the future with any certainty, but I can say that their incentive for doing the right thing… is you.
Note: Rohrabacher has introduced a stand-alone bill to “Respect State Marijuana Laws”, and you can find out if your representative is a cosponsor here.
(Photo of President Park Geun-hye (bottom left), Vice President Joe Biden (top left), and House Speaker John Boehner (right) give a standing ovation to a Korean War veteran family after President Park introduced them on Capitol Hill in Washington, D.C. May 8 2013 by Cheong Wa Dae)