Due Process for Salvadorans and State-Managed Marijuana Production and Sales

DUE PROCESS FOR LIBERTY OF SALVADORAN PARENTS OF US CITIZENS, AND FOR PROPERTY RIGHTS STATES HAVE GIVEN MARIJUANA PRODUCERS AND CONSUMERS v. THE PRESIDENT’S ENFORCERS OF IMMIGRANT AND MARIJUANA PROHIBITION

Hal Pepinsky, pepinsky@indiana.edu, “peacemaking” at pepinsky.blogspot.com

Two stories of challenges to fundamental right of “persons” (including corporations and governments) not to have “life, liberty or property” taken without due process under the US constitution (state constitutions too).

Young Salvadorans, parents too, bore children in the US, making the children citizens.  I find myself returning to the confidence I had in President Obama’s knowledge and respect for constitutional law, especially for limits on executive power, both literally and in spirit.  And so by now, Salvadoran refugees have become homeowners and fully employed, supporting the children, many grown up and well educated, who are US citizens because they were born here.  (I’m reminded that the question was raised whether George Romney was eligible to run for the president (you must have been born one) because he was born in the US embassy in Mexico City.)  That was supported in the Obama administration by a moratorium on deportation.  That became the law, accepted by US attorneys (i.e., prosecutors) across the country.  Which is to say that Honduran parents were given authority to work and pay taxes and bear and raise their American children.  They depended on it, as by investing in home ownership, education, secure employment.

When the state gives people the right to invest their lives to raise families, and people invest heavily on enjoying that right (and liberty too), it becomes a government-granted right which, constitutional cannot be taken away, cannot simply be reversed by executive order, without “due process,” which includes providing a legitimate, newly emergent, defensible reason for the change, subject to public input and judicial challenge if necessary…as a just reason for taking liberty or property (including taking parents from their children, at the child-citizens expense).

So far there has been no US executive action, nor attempt, at deporting Salvadorans.  If they try, I can’t imagine federal courts striking their attempts down, nor US attorneys backing up federal law enforcement’s attempts at detention and deportation.

The same goes even more strongly for any US attorney trying to go after any state’s lawful administration (including taxation) of marijuana production, distribution, and use.  Here, the US Justice Department would face off not against individuals, but against entire state governments as, in effect, corporate managers/owners of the entire marijuana economy.  Not surprisingly, the US Attorney for Colorado became joined by other US attorneys in declaring that far as they are concerned, the Obama hands-off-marijuana-enforcement policy remains in effect.  No president or his agents can take away the property they have given the states and their licensees…without due process.

Rights in which people have heavily invested, on which they have become heavily dependent, cannot be taken away save by due process (equal protection too).  When the personal and economic damage caused by sudden reversals in federal law enforcement are as substantial as they are here, when the people and their governments have invested so heavily in enjoying rights to life, liberty and property, with no new evidence of an unanticipated problem at hand, the US attorney general needs an unimaginable abundance of evidence that justifies taking so much away.  I can’t imagine what that would be.  We may see some enforcement turmoil, but thus far, federal law enforcers seem to know better than trying.  Love and peace, hal