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News Flash: Jeff Sessions Can Overrule Miranda

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Readers might think that I've finally gone over the edge by posting that the Justice Department can overrule the Supreme Court's holding in Miranda that, in order effectively to preserve the Fifth Amendment, police must give a specific set of warnings to a suspect in custody, on pain that any ensuing statement he gives will be suppressed even if the facts show it was voluntary.

And yes, I would have thought the idea of DOJ overruling SCOTUS was bonkers before I read the Volokh Conspiracy post by Prof. Will Baude of Chicago.  Prof. Baude, by the way, is widely and correctly recognized to be a brilliant mind and one of the future stars of legal academia.  He is also, I should add, not a captive of the Leftist Bubble currently ruling the roost there, a fair-minded and eclectic thinker, and a casual friend of mine.

His Volokh Conspiracy entry dealing with marijuana enforcement policy does not directly say that DOJ can overrule Miranda, to be sure, but his analysis leaves no doubt about it.
Here is his post, verbatim:

On Thursday, Attorney General Jeff Sessions announced that he was rescinding all of the Obama administration's enforcement guidance that had foresworn enforcement of the Controlled Substances Act against marijuana that was legal under state law.

There has been plenty of criticism of Sessions's new position, including from my co-bloggers Ilya and Jonathan here. One major line I've seen in defense of Sessions's action is that his position is truer to the rule of law: Maybe Congress should decentralize marijuana policy, the argument goes, but until it does the executive branch should be enforcing the law, not suspending or dispensing with ones it thinks are unwise.

As a general principle, I think there is a lot to that. But in this case, I do not think the rule of law requires the renewed enforcement of the Controlled Substances Act, and if anything requires the opposite. My reasons are detailed in my three-year-old paper on marijuana federalism, State Regulation and the Necessary and Proper Clause, but there are two key points:

First, the Constitution does not allow Congress to regulate all in-state marijuana, and the Supreme Court should not have said that it does. Congress's enumerated powers are to regulate interstate commerce, and to pass laws necessary and proper to carrying that interstate regulation into effect.

This means that Congress can ban the interstate drug trade, and it can also police in-state drugs that would spill over into interstate commerce. But that does not mean all in-state drugs. It depends on the circumstances in each state, and it especially depends on how each state regulates the drug and polices possible spillovers. The Supreme Court dismissed the role of states in a footnote in Gonzales v. Raich, but it was wrong to do so.

Second, the attorney general does not have to and should not adopt the Supreme Court's reasoning in Raich as federal law enforcement policy. Members of the executive branch have their own obligation to interpret the Constitution, and if a federal law is unconstitutional in part then the executive branch, no less than the courts, should say so. It is the Constitution, not the Court, that is the ultimate rule of law in our system.

So to be most consistent with the rule of law, what Attorney General Sessions should have done would have been to revise the Obama administration's enforcement guidance so that it was based on the Constitution -- on the limits of federal power to reach wholly in-state activity -- rather than on sheer policy discretion.

I understand the instinct to be wary of excessive executive discretion in law enforcement. But we should not forget that the Constitution is one of the laws that the executive enforces -- and hopefully, above all others.

As Justice Scalia demonstrated in his rubble-bouncing dissent in Dickerson v. United States, http://caselaw.findlaw.com/us-supreme-court/530/428.html, and as the four dissenters in Miranda demonstrated 30 years before then, neither the Constitution nor the most basic form of common sense supports the notion that a defendant's statement can never be voluntary within the meaning of the Fifth Amendment unless it has been preceded by police warnings.  Indeed, the Court's innovation in Miranda (and still less Miranda's blunderbuss remedy of automatic exclusion), has far less historical or textual support in the Constitution than the outcome in Raich, which at least was based on the broad wording of the Commerce Clause and the long-observed (although also long-questioned) holding of Wickard v. Filburn.

If, as Prof. Baude maintains,  DOJ is free effectively to overrule Supreme Court decisions if, in its view, a better interpretation of the Constitution so dictates, then Attorney General Sessions  --  admirable and exciting as his leadership of the Department has been thus far  --  has only yet to begin.

1 Comment

"the Supreme Court's holding in Miranda that, in order effectively to preserve the Fifth Amendment, police must give a specific set of warnings to a suspect in custody"

Process should never trump justice, as it did with the rapist Miranda.

To rubbish overwhelming evidence due to a technicality is the height of malpractice.
[At least in my simple, deplorable, flag-waving mind.]

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