Hi @jamell and thanks for this post. I think you made a lot of good points, but there's a couple I can't agree with.

First is what seems like one of your overall premises, which I think is pretty well summed up by your line, "preserving the law as a whole requires enforcing bad laws." That is only partially true and depends on whether the law is a "bad," but constitutional, law OR a law which is actually unconstitutional. The truth is that the federal government has no power to make laws regarding the usage of marijuana or any other drug, because those powers are not found among the delegated powers of Congress in Article 1, Section 8 of the Constitution.

The Constitution is quite explicit that the federal legislature does not possess unlimited powers, but only very strictly delineated ones. All the other powers was presumed to be left with the states, who already had them. Even the biggest "big government" supporters among the Founding Fathers agreed on this. Alexander Hamilton himself, along with many many others, stressed the point in at least 2 of the Federalist papers that any law whose basis is not explicitly stated in Article 1, Section 8 is VOID. It's NULL. It's a nothing. It is literally, by the decree of our REAL LAW, the CONSTITUTION, not a law at all. It's an edict. It's a command. It's only authority is the threat of force.

Congress has no more authority to make laws about drugs than I do. Nobody ever granted them that power anymore than they did me. If they want to be granted that power, they are of course free to attempt to obtain it legitimately, as they did with Prohibition and the 18th Amendment. Back at the time of the Constitition's writing and ratification, the Federalists assumed that this was all self explanatory. After all, it was supposed to be a limited government, formed by a confederation of sovereign states. Of course, some of the antifederalists feared (correctly, as we have seen) that Congress might try to stretch their powers, which is why the 10th Amendment was ratified in 1791 and made it even more crystal clear.

In America the fundamental principle of our national government is that the Constitution is the law of the land. All federal laws have to be created under its authority or they are acts of tyranny, not acts of law. The truth is, by supporting unconstitutional laws, we aren't protecting the rule of law, we're destroying it.

I also disagree with this line - "The Executive branch picking and choosing laws will not suffice because there is a system that America follows to create and execute laws, and undermining that system could undermine the entire institution of justice." Again, this is only a half truth, and half truths are often the most dangerous kind.

As I'm sure you know, the Constitution was intended to operate on a system of separation of powers and checks and balances. The nation's power was divided between the people and the states and the federal government (with the people and the states retaining the vast majority) and then that portion allotted to the federal government was further subdivided between the legislative, executive, and judicial branches.

Of course, being as prescient as they were, the Framers anticipated that each branch might try to overstep its constitutional boundaries, and their solution was that each of the other 2 would act to keep it in check, so all the branches were given a way to do this.

In the case of the executive branch, the power of the president to execute laws is also implicitly the power not to execute laws. This means that he could serve as a check on the legislative branch by removing the teeth from any unconstitutional "law" they had passed. If we try to deny that part of the executive's role, then the executive branch becomes subordinate to the legislative and a huge part of the check on Congress is removed. When we think about the fact that a president has the power to issue pardons, it shouldn't even be surprising.

Let's say that, as in the case of the Alien and Sedition Acts, there is a law way outside the bounds of the Constitution, signed by a former president. The new president clearly, unequivocally has the power to pardon everyone convicted of that crime. Let's take Jefferson's case. While he waits for the new Congress to (hopefully) repeal the acts, he has pardoned everyone sentenced under Adams. But suppose a new case arises. Do you really think that the Founders intended that Jefferson would be compelled to enforce an unconstitutional law? That he has to side with Congress, and let them trample on the Constitution, because..... Constitution? That his duty would be to cause the unjust, illegitimate law to be executed then immediately pardon the offender? I think that's crazy and I don't think it fits with anything in the intent of the Constitution.

Jefferson explained all this a whole lot better than I did when he wrote to Abigail Adams in 1804 about the Alien and Sedition Acts:

"The judges, believing the law constitutional, had a right to pass a sentence of fine and imprisonment; because that power was placed in their hands by the constitution. But the Executive, believing the law to be unconstitutional, was bound to remit the execution of it; because that power has been confided to him by the constitution. That instrument meant that it’s co-ordinate branches should be checks on each other."

Naturally, the President might abuse his power as well. That's why there's checks on him too! If a president routinely failed to execute just and constitutional laws, which the legislature had passed, and the judicial branch had upheld, there would be grounds for impeachment. The Constitution provides that the president can be impeached for "high crimes and misdemeanors," and this could certainly qualify. If there was enough of a question about it, it should be put through the proper procedure in the House and Senate.

Anyway, I meant to write about 2 paragraphs and you got a tome. Sorry. I'm going to justify myself by the excuse that you did ask for comments. Again, it was a great post. I like people who think/talk/blog about politics esp. as regards the Constitution.