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The Senate should just say no to Jeff Sessions

By MMR follow MMR   2017 Jan 10, 8:22am 5,888 views   28 comments   watch   nsfw   quote   share    


#politics

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/01/10/the-senate-should-just-say-no-to-jeff-sessions/?utm_term=.adaec278524b

Over 1,200 of my fellow law professors recently signed a petition urging the Senate to reject President-elect Donald Trump’s nomination of Jeff Sessions to become attorney general. Critics correctly point out that the vast majority of the signatories are liberal Democrats, and (less correctly) therefore dismiss the statement as mere partisan politics. I am not a liberal Democrat, I did not sign the statement, and I don’t agree with all of its points. But the signers are right about the bottom line: The Senate should indeed reject this nomination. It should borrow a slogan from Sessions’s beloved War on Drugs and “just say no.”

Liberals are not the only ones with good reason to oppose Sessions. His record should also trouble libertarians, conservatives and others who care about protecting liberty, constitutional federalism and property rights.

I. The Threat to Property Rights.

Sessions is one of the leading advocates of asset forfeiture, the law enforcement practice of seizing the property of suspects who have often not even been charged with any crime, much less convicted. In recent years, there has been growing recognition across the political spectrum that asset forfeiture poses a serious threat to the property rights of innocent people, particularly the poor and minorities. All too often, it results in a kind of legalized plunder, as law enforcement agencies get to keep the property they seize. The property is also often seized with little or no due process protections, in violation of the Due Process Clauses of the Fifth and 14th Amendments.

Yet Sessions opposes bipartisan efforts to rein in such abuses, and is “very unhappy” that asset forfeiture has been called into question. He opposes efforts to end the “equitable sharing” program under which the federal government incentivizes asset forfeitures by state and local law enforcement — even in states that otherwise forbid police from profiting from this practice. The program was suspended in 2015, but later reinstated.

In 2015, libertarian-leaning Republican Sen. Rand Paul voted against President Obama’s nomination of Loretta Lynch for attorney general, in part because of her support for asset forfeiture. He was right about Lynch. Paul and other supporters of property rights should oppose Sessions for the same reason.

II. The Threat to Liberty and Federalism.

Sessions’s longtime role as an extreme drug warrior is also troubling. There is now increasing bipartisan recognition that the War on Drugs is a terrible failure that has undermined civil liberties and inflicted great harm on society. Unfortunately, Sessions is an uncompromising advocate of the most aggressive forms of federal drug prohibition. A large majority of Americans favor marijuana legalization (including even a narrow plurality of Republicans). Many more Republicans (some 70 percent) favor leaving the issue up to the states. But Sessions opposes even the Obama administration’s relatively modest steps to reduce federal enforcement in those states that have chosen to legalize.

In his view, “good people don’t smoke marijuana,” and federal enforcement must be ramped up. If you are among the nearly 50 percent of Americans who have tried marijuana, you may want to take note of what the likely next attorney general thinks of you. Sessions’s support for ending the crack-cocaine sentencing disparity is a rare exception to his otherwise consistent record as a “drug war dinosaur.”

Sessions’s drug war agenda is not just dubious policy and a threat to civil liberties, it also undermines constitutional federalism. If, as Sessions’s preferred policies require, the federal government has the power to enforce marijuana prohibition anywhere in the United States regardless of the laws of the states, it also has the power to ban the possession or distribution of pretty much anything else. That makes a mockery of the constitutional limits on federal power that many conservatives claim to prize.

Admittedly, the Supreme Court ruled that such sweeping congressional power was permissible in its badly flawed decision in Gonzales v. Raich, which held that Congress’s power to regulate interstate commerce allowed it to ban the possession of medical marijuana that had never been sold in any market or crossed state lines. But serious constitutional federalists should be opposing Raich, in line with the powerful dissenting opinions by Justices Clarence Thomas and Sandra Day O’Connor, not exploiting it to impose federal prohibition on unwilling states.

In a diverse nation beset with deep partisan conflict, both liberals and conservatives have an interest in restoring constitutional federalism. Sessions’s drug war agenda would undermine it.

In addition to being one of the Senate’s most extreme drug warriors, Sessions is also perhaps its leading supporter of mass deportations and immigration restrictionism, going well beyond many other Republicans. Such measures pose a serious threat to the liberty of native-born Americans as well as immigrants.

Like his marijuana policies, Sessions’s proposals for coercing “sanctuary cities” are also likely to undermine constitutional federalism, unless invalidated by courts. Conservatives who might welcome federal coercion in this area should remember that the same power could be used by liberal presidents to coerce more conservative states in the future.

On immigration, as on marijuana legalization, Sessions is out of step with public opinion. Exit polls show that some 70 percent of Americans oppose deporting undocumented immigrants working in the United States.

The attorney general does not have as much power over immigration enforcement as over the War on Drugs and asset forfeitures. But Sessions could still do great harm in this field.

III. How We Can Get a Better Nominee by Overcoming Partisan Bias.

I don’t expect any president — Democrat or Republican — to appoint an attorney general as libertarian as I would ideally prefer. Far from it. But libertarians and others who care about federalism and limiting government power can reasonably expect someone with a less terrible record than Sessions. His divergence from mainstream views on so many issues does not by by itself prove that he is wrong. But it does make him potentially vulnerable.

I am not the only right-of-center commentator with grave concerns about Sessions. George Will, the Wall Street Journal editorial page and Michael Tanner (writing in National Review) have done so, as well, among others. As Tanner puts it, Sessions “has a record that ought to worry believers in small government and individual liberty.”

The flaws in Sessions’s record are serious regardless of whether we credit claims that Sessions is a racist, that cost him a nomination to a federal judgeship back in the 1980s. Even if Sessions is completely free of racial prejudice, his agenda is still a threat to liberty, property rights and constitutional federalism. You can conclude that Sessions is a bad choice for attorney general if he’s not a bad person.

Sessions’s record cannot be sidestepped on the grounds that the attorney general’s job is just to “enforce the law.” Given the vast scope of federal law, a large majority of Americans have violated it at one time or another, and the AG has enormous discretion in choosing which putative lawbreakers to pursue. Being attorney general is not just a matter of technical competence. It is also about values and priorities. And many of Sessions’s priorities are deeply inimical to liberty and the Constitution. Republican senators recognized that the job is about more than professional qualifications when 43 of them voted against Loretta Lynch’s confirmation because of objections to her positions on policy and legal issues. Sessions should not be immune from such opposition either.

If, as seems likely, GOP senators rally around Sessions out of partisan loyalty, he will be confirmed. He may even be a “lock” for confirmation. Partisanship is a powerful drug that leads many people on both left and right to abandon their supposed principles. As Republican Rep. Justin Amash recently lamented, “partisanship remains a stronger force than ideology. Things won’t get better in politics until people care more about principles than teams.”

In this case, liberals, libertarians and conservative advocates of property rights and federalism should join together in opposing Sessions. Despite their many other differences, these groups have a common interest in stopping his nomination. All three would be better off if Trump is forced to choose a more conventional Republican, even if they still ended up opposing some of that person’s decisions. Given the close 52-48 balance in the Senate, only a handful of GOP senators need to turn against Sessions in order to defeat his nomination. Now would be a good time to set aside some of the partisan bias that is helping to poison our political system.

1   Tenpoundbass   ignore (16)   2017 Jan 10, 8:44am     ↓ dislike (2)   quote   flag        

It don't mattah! Stupid Liberals changed the rules from 60 to just 51. So suck on it Libholes!

2   rootvg   ignore (1)   2017 Jan 10, 8:57am     ↓ dislike (2)   quote   flag        

You can't not confirm a guy with that many years seniority in the Senate just because. He would simply return to his seat and that would cause other problems.

There are those who demand he be "dirtied up" but it's all political theater. Performance art for the Democratic base in return for writing checks to keep the lights on.

Democrats don't have the votes to stop him, given all the changes. Period.

3   Dan8267   ignore (3)   2017 Jan 10, 10:38am     ↓ dislike (0)   quote   flag        

The Republicans have to either fight Trump or own his policies and appointments. Beautiful.

4   Entitlemented   ignore (0)   2017 Jan 10, 10:43am     ↓ dislike (1)   quote   flag        

MMR says

In his view, “good people don’t smoke marijuana,” and federal enforcement must be ramped up. If you are among the nearly 50 percent of Americans who have tried marijuana

I tried it and it was one of my worst life mistakes. I was not a good person when I used it, and many of the people who used it were crooks, dealers, and bad company.

I dont think getting stoned is very important, in fact I think its immature and unsafe.

5   anonymous   ignore (null)   2017 Jan 10, 10:48am     ↓ dislike (0)   quote   flag        

The one good thing about THE FAILED LOSER DONALD TRUMP appointing Sessions is, it drags all the Sharia Anti Americans out in the open.

You either vehemently oppose Sessions, as any Great American would, or you are An Anti American retard , so weak of mind as to support the domestic terrorist and pro Sharia Sessions

6   anonymous   ignore (null)   2017 Jan 10, 10:50am     ↓ dislike (0)   quote   flag        

Entitlemented says

MMR says

In his view, “good people don’t smoke marijuana,” and federal enforcement must be ramped up. If you are among the nearly 50 percent of Americans who have tried marijuana

I tried it and it was one of my worst life mistakes. I was not a good person when I used it, and many of the people who used it were crooks, dealers, and bad company.

I dont think getting stoned is very important, in fact I think its immature and unsafe.

SJWs like you are ruining the country. Take your Anti American hate for FREEDOM! Back to North Korea, with the rest of your shit ideas

7   HEY YOU   ignore (8)   2017 Jan 10, 10:50am     ↓ dislike (0)   quote   flag        

BOYCOTT ALL Republicans!
Regardless of Sessions.

8   APOCALYPSEFUCKisShostikovitch   ignore (49)   2017 Jan 10, 11:13am     ↓ dislike (0)   quote   flag        

Sessions will win handily and spend 8 years shooting at escaped negroes from the roof of the Justice building and impaling heretic that displease THE! PLENIPOTENTIARY!

9   MMR   ignore (0)   2017 Jan 10, 11:23am     ↓ dislike (0)   quote   flag        

Entitlemented says

I was not a good person when I used it, and many of the people who used it were crooks, dealers, and bad company

It's not for everyone, myself included, but the latter issue pertains to its legality. Make it legal and lot of that latter element goes away.

10   marcus   ignore (11)   2017 Jan 10, 11:40am     ↓ dislike (0)   quote   flag        

Right wing dimbulbs such as Sessions are for state's independently determining laws, except when he wants to overrule them based on his somehow personally knowing what's best.

His position on forfeiture of property is the scariest of his fascist positions that I am aware of. It should be a deal breaker unless the U.S. is truly too far gone. When did we become a country where police routinely take peoples money and or property without any due process ? It's like what I used to read about communist countries doing when I was a child. What's next ? Grabbing people in the middle of the night to take them to a gulag, because of an opinion they expressed on Patrick.net ?

Coservative George Will: http://www.nationalreview.com/article/443299/civil-forfeiture-property-seizure-no-judicial-process-jeff-sesions-justice-department

11   anonymous   ignore (null)   2017 Jan 10, 12:44pm     ↓ dislike (0)   quote   flag        

When did we become a country where police routinely take peoples money and or property without any due process

-------------

In the 90's, as part of The New New Economy.

I experienced it first hand.

Failed Loser of a neighbor calls the police to complain about too much noise. Police arrive and "investigate" the noise. Police don't like that window is slammed shut on them , snd nobody is dumb enough to give up their hard fought for rights as freedom loving Americans.

Cops are very stupid and willing to subvert the laws to meet their goal of terror and death of freedom, so they illegally enter the premises. Hold everyone hostage against their will, while they call for back up. They are trying to figure out what illicit drug they think they have found, using gloves to handle the substance. We told them numerous times what it was, wet sticky sugar from getting the girls lubed up on Lemon Drops.

So they arrest nobody. Spend 45 minutes trying to cite a 22 year old for underage drinking. And they seized ~12,000$ in cash, for no good reason.

This is the America you people vote for, and freedom can only hope that you are met with the most torturous comeuppance imaginable

12   FNWGMOBDVZXDNW   ignore (2)   2017 Jan 10, 2:13pm     ↓ dislike (0)   quote   flag        

In my experience, amped up higher anxiety people do really well with pot and I know a number of these people who use it regularly. It just puts me to sleep, and when mixed with alcohol just gives too big of a buzz. I'd be happy to hear other takes on it and am not claiming any expertise - just my experience. I do think it ought to be legal and think it will be legal soon, even if Trump slows it down with Sessions.

13   anonymous   ignore (null)   2017 Jan 10, 2:23pm     ↓ dislike (0)   quote   flag        

What 3rd world shithole are you people from?

Do they make the laws there, based on your personal preferences?

It doesn't matter wether or not you like cannabis. What matters is, the potentiality of its use, and the Sharia-esqu prohibition of this flower. Worst still, is people think they can call themselves Americans, and pot prohibitionists simultaneously. That's just not possible.

14   anonymous   ignore (null)   2017 Jan 10, 2:34pm     ↓ dislike (0)   quote   flag        

Ironman #triggered !

Meltdown time

15   APOCALYPSEFUCKisShostikovitch   ignore (49)   2017 Jan 10, 3:42pm     ↓ dislike (0)   quote   flag        

Dope of all types should be thrown from Hueys over major population center so anyone with a proclivity to abuse crap like this overdoses and dies.

The rest of us can get busy killing each other until there is just one who eats the sun and seizes control of the universe and skull fucks GOD!, exactly as the Founding Fathers intended.

16   NoCoupForYou   ignore (4)   2017 Jan 10, 3:47pm     ↓ dislike (0)   quote   flag        

Dan8267 says

The Republicans have to either fight Trump or own his policies and appointments. Beautiful.

:)

Sessions ain't going to do shit on marijuana. Trump doesn't give a fuck about it.

The real reason they hate him is he will stop bending over for illegal immigration, and the Democrat Low End Service Businessmen and the GOPe Right-to-Exploit-Ya teams don't want their fake SSN using employees deported.

17   Ceffer   ignore (4)   2017 Jan 10, 3:55pm     ↓ dislike (0)   quote   flag        

Prison probably saves the lives of more addicts than any other institution, because they just can't use the way they want inside and the sentences clean them up and give them a modicum of food, exercise and order whether they want it or not.

Sure, if you want them to die a lot more, set them free.

18   joeyjojojunior   ignore (1)   2017 Jan 10, 3:59pm     ↓ dislike (0)   quote   flag        

T L Lips says

The real reason they hate him is he will stop bending over for illegal immigration, and the Democrat Low End Service Businessmen and the GOPe Right-to-Exploit-Ya teams don't want their fake SSN using employees deported.

No, they hate him because he's an asshole who believes in big government intruding in everyone's lives. Taking citizen's property for no reason. Telling citizens how to live their lives. Oh yeah, he's a bigot too.

It really is sad that you have given up everything you used to believe in and have turned into nothing more than a coherent tenlbbass.

19   NoCoupForYou   ignore (4)   2017 Jan 10, 4:16pm     ↓ dislike (0)   quote   flag        

joeyjojojunior says

No, they hate him because he's an asshole who believes in big government intruding in everyone's lives. Taking citizen's property for no reason. Telling citizens how to live their lives. Oh yeah, he's a bigot too.

Whereas Hillary campaigned on doing away with asset forfeiture and legalizing marijuana, of course.

That's not what she told the Big Banks when they paid her 6 figures to speak with them.
https://wikileaks.org/podesta-emails/emailid/927
http://www.marijuana.com/blog/news/2016/10/clinton-gave-thumbs-down-to-legal-marijuana-leak-shows/

As for bigotry, I remember her 2008 primary campaign very well. She ran out of dogwhistles to blow.

20   joeyjojojunior   ignore (1)   2017 Jan 10, 4:22pm     ↓ dislike (0)   quote   flag        

God dang. Can you respond to any post without bringing up Hillary?? Who the hell cares what Hillary would have done?? She lost. She's a private citizen. You hated her, but yet you support guys that are just as bad.

We're talking about the guy that is going to become AG. He wants to expand civil forfeiture. He wants to expand the war on drugs. But, now, you're OK with that, right?

21   anonymous   ignore (null)   2017 Jan 10, 4:24pm     ↓ dislike (0)   quote   flag        

T L Lips says

joeyjojojunior says

No, they hate him because he's an asshole who believes in big government intruding in everyone's lives. Taking citizen's property for no reason. Telling citizens how to live their lives. Oh yeah, he's a bigot too.

Whereas Hillary campaigned on doing away with asset forfeiture and legalizing marijuana, amirite?

That's not what she told the Big Banks when they paid her 6 figures to speak with them.

https://wikileaks.org/podesta-emails/emailid/927

http://www.marijuana.com/blog/news/2016/10/clinton-gave-thumbs-down-to-legal-marijuana-leak-shows/

Oh fuck off with these sad "oh but hillary would have been similarly bad as Trump", as excuses for Trumps Sharia-esque Anti American actions now. Hillary is of no consequence, and she certainly is not an excuse for Trump to be shit

22   anonymous   ignore (null)   2017 Jan 10, 4:30pm     ↓ dislike (0)   quote   flag        

Sessions ain't going to do shit on marijuana. Trump doesn't give a fuck about it.

----------------

You seem to think that is a reasonable response.

At this point, inaction is equally as bad as bad action. We have a populace demanding that the federal government rectify their greatest wrong in history. Evidenced by more than half the states voting to put themselves on the other side of The Federal Governments War.

It's the biggest economic issue by far
It's the biggest industry for domestic jobs, by far
It's a human rights issue.
It's the only place for the next administration to start, if they desire a return to rule of law. The populace can't be asked to respect the laws of the land, when there is such a glaringly harmful, Anti American law, at the top of the heap.

Not to mention, you cannot claim to drain the swamp, while simultaneously enshrining the swamp. Jeff Sessions IS THE SWAMP!

23   NoCoupForYou   ignore (4)   2017 Jan 10, 4:41pm     ↓ dislike (0)   quote   flag        

Errc, Marijuana should be fully legalized. However, it is not the Federal Government's greatest wrong in History. That would probably be the Fugitive Slave Act, or maybe the Iraq War that Hillary voted for and defended her vote even as late as her 2008 run.

Sessions is a not a great pick for Attorney General. I would have rather seen him at DHS.

24   NoCoupForYou   ignore (4)   2017 Jan 10, 4:47pm     ↓ dislike (0)   quote   flag        

Democrat Oppo research on Jeff Sessions, courtesy EVIL RUSSIAN Wikileaks.
https://t.co/nux6Q33zZ5

25   joeyjojojunior   ignore (1)   2017 Jan 11, 5:16am     ↓ dislike (0)   quote   flag        

"or maybe the Iraq War that Hillary voted for and defended her vote even as late as her 2008 run."

But yet you are supporting strong Iraq War supporter and noted military hawk Jeff Sessions. Not surprising, really, as you only care about issues when Hillary is involved. When it comes to Trump, you are blindly loyal.

26   MMR   ignore (0)   2017 Jan 11, 5:40am     ↓ dislike (0)   quote   flag        

T L Lips says

Whereas Hillary campaigned on doing away with asset forfeiture and legalizing marijuana, of course

In fairness, Hillary's strongest supporters tend to have a lot of funds and would push back hard on asset forfeiture; NIMBY types come to mind here.

Jeff Sessions would use asset forfeiture tactics on those who are less likely to have means to fight back. Like building a pipeline through flyover country, for example.

Hillary did benefit from the for-profit prison business, but with winds of change blowing, I doubt she is looking to exert federal authority over what is primarily a state issue. Obama blustered about it a tad bit, but was mostly rebuffed and likely same would happen if Clinton wants to bark up that tree. Although Clinton was opposed in that article linked, it's worth noting that a democratic party supermajority is in favor of legalization. Not sure she would want to alienate voters like that.

Now, if NY and NJ could catch up with MA on recreational use, then that would be something. NY and NJ will be last out of all blue states because there are so many that benefit from status quo there.

27   BlueSardine   ignore (3)   2017 Jan 11, 6:03am     ↓ dislike (0)   quote   flag        

Actually trump being high every day explains his varying viewpoints...

errc says

Sessions ain't going to do shit on marijuana. Trump doesn't give a fuck about it.

28   mell   ignore (4)   2017 Jan 11, 6:07am     ↓ dislike (0)   quote   flag        

Not a Sessions fan, but I think in reality he will do less damage than the Obummer administration who went "fast and furious" style after pot farms and raw dairy farmers while even W left the states alone. Can't be worse than crooks Holder or Lynch.


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