A few days before his disastrous term as president ended, Joe Biden did something good, although it would have been better had he done it at the beginning of his term.
President Biden commuted the sentences of nearly 2,500 nonviolent drug offenders who were “serving disproportionately long sentences compared to the sentences they would receive today under current law, policy, and practice.” Said Biden: “Today’s clemency action provides relief for individuals who received lengthy sentences based on discredited distinctions between crack and powder cocaine, as well as outdated sentencing enhancements for drug crimes.”
And as Biden correctly pointed out: “With this action, I have now issued more individual pardons and commutations than any president in U.S. history.”
According to Article 2, Section 2, Clause 1 of the Constitution, the president “shall have power to grant reprieves and pardons for offenses against the United States except in cases of impeachment.” According to the case of Ex parte Garland (1867), the scope of the president’s pardon power is quite broad. And according to United States v. Klein (1871), Congress cannot limit the president’s grant of an amnesty or pardon.
But as reported by ABC News: “In the 1980s, Biden supported several bills that increased penalties for drug users, including one that essentially lengthened sentences for crack cocaine users, predominantly African-Americans, as compared to those convicted of using powder cocaine, who were predominantly white.”
Although Biden made the right decision, he did it for the wrong reason.
In Article I, Section 8 of the Constitution, there are 18 specific powers granted to Congress — the enumerated powers. Everything else is reserved to the states. As the father of the Constitution, James Madison, wrote in Federalist No. 45: “The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite.” And just to reinforce this federal arrangement, the Tenth Amendment declares that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
But when we look in the Constitution, we see no authorization given to the federal government to:
- Wage a war on drugs.
- Regulate or prohibit the manufacture, sale, use, or “trafficking” of any drug.
- Legislate a Narcotic Control Act, a Controlled Substances Act, a Comprehensive Drug Abuse Prevention and Control Act, or a Combat Methamphetamine Epidemic Act.
- Regulate or prohibit any substance that Americans want to eat, drink, smoke, inject, absorb, snort, sniff, inhale, swallow, or otherwise put into their bodies.
- Have a Substance Abuse and Mental Health Services Administration, an Office of National Drug Control Policy, a drug czar, or a Drug Enforcement Administration.
- Regulate or prohibit the medical treatments or recreational activities of any American.
- Finance a National Drug Control Strategy, a National Survey on Drug Use and Health, or a Domestic Cannabis Eradication/Suppression Program.
According to the Constitution, there should be no such thing as a federal drug offender for Biden to pardon. No one should ever have been sentenced to prison for selling or using drugs — any drug in any quantity. The Constitution was the last thing on Biden’s mind when he pardoned these nonviolent drug offenders.
And if pardoning nonviolent drug offenders was just simply the right thing to do, then why didn’t Biden just say so? And why didn’t he pardon them the day he took office in 2021? Why keep them locked up unnecessarily for four years?
But aside from the Constitution, is there some other reason that Biden pardoned these Americans snared by the drug war? Is it because Biden believes that a drug offense is a victimless crime because every crime should have a tangible and identifiable victim with real harm and measurable damages? Undoubtedly not. Is it because it is none of the government’s business what Americans want to consume? Not at all. Is it because the war on drugs is a complete and utter failure? Certainly not. Is it because the war on drugs has ruined more lives than drugs themselves? Definitely not. Is it because any benefit of the war on drugs far exceeds its cost? Surely not. Is it because the war on drugs is a war on freedom? Of course not.
But whatever his reason was, we can nevertheless thank God that 2,500 Americans were pardoned and are no longer in prison. Just like we can thank God that President Trump — again, for the wrong reason — pardoned Ross Ulbricht, even though he could have and should have pardoned him in 2017, when he was the president the first time, and even though Trump could have pardoned all nonviolent drug offenders during his first term.
