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Could Marijuana Legalization Initiatives Pave the Way for Nullification?

A former senior drug policy advisor to the Obama administration predicts [1] a crackdown if state ballot initiatives legalizing marijuana pass tomorrow:

“Once these states actually try to implement these laws, we will see an effort by the feds to shut it down,” [Kevin] Sabet said. Sabet’s vision of post-election pot realities in Washington and Colorado — where Amendment 64 has majority support, according to a recent poll [2] — seems to suggest a possible weed war between the feds and the states.

“We can only guess now what exactly that would look like,” Sabet said. “But the recent U.S. Attorney actions against medical marijuana portends an aggressive effort to stop state-sponsored growing and selling at the outset.”

C0nsider this hypothetical situation: ballot initiatives in Washington and Colorado to regulate and tax marijuana like alcohol pass tomorrow, as polls suggest they will. As the Feds consider how to respond to the states’ interposing measure, a lower level DEA or DOJ official sends out a memo indicating a willingness to compromise with the states, similar to the 2009 Ogden memo [3] promising not to crack down on lawfully-operating medical marijuana dispensaries.

Businesses will begin to sell the drug and the state will make budgetary assumptions based on the substantial expected revenue from pot taxes. Eventually, for whatever reason–to appear tough on crime, or after realizing that selective state-by-state enforcement of drug laws is problematic–the administration realizes that this approach is untenable, and declares open season [4] on marijuana users and purveyors.

All of a sudden the DEA starts knocking down doors in Denver or Seattle. But the targets, unlike in California (where there have been more than 800 raids this year) or other medical marijuana states, will not just be dispensaries, but an array of businesses that also sell other things. The governors will be under immense pressure to act to enforce the laws they were elected to uphold. Such action could range from publicly condemning the raids to throwing federal agents in prison: full-on nullification. That’s the “constitutional showdown [5]” the Justice Department has warned us about.

How far states will have to go to exercise self-government depends above all on the intractability of the DEA. I have no doubt that if it actually came down to states arresting DEA agents the federal government would be forced to reevaluate. Doubling down would mean arresting the governor or invading, and that seems exceedingly unlikely.

One needn’t be a staunch proponent of states’ rights to side with them on this issue. The conflict isn’t exactly between federal and state governments per se, it’s between states and raw bureaucratic fiat. Within existing federal law the DEA has the discretionary authority to recognize pot’s medical benefits, as more than a dozen states do, and recalibrate accordingly. They haven’t. And when an unaccountable federal government fails to recognize the legitimate interests of the people, as represented by majority [6] opinion and by duly-enacted law, shouldn’t states be next in line to protect them? Isn’t that what federalism is for?

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#1 Comment By NRF On November 5, 2012 @ 3:47 pm

The Constitution does not authorize the federal government to legislate or regulate with regard to marijuana or any other drug. Under the Tenth Amendment, that authority, if it exists for any government, is reserved at most to the States.

Federal “agents” who attempt to enforce blatantly unconstitutional federal statutes or regulations in violation of the will of the people of a State should be prosecuted for civil-rights violations under state law and sentenced to a lengthy term in state prison.

#2 Comment By John E_o On November 5, 2012 @ 5:24 pm

Just move cannabis to Schedule 3 – problem solved.

#3 Comment By Just Dropping By On November 5, 2012 @ 5:58 pm

The problem with this analysis is that, at least in Colorado, the political establishment is overwhelmingly opposed to Amendment 64. I have an particularly difficult time imagining Gov. Hickenlooper provoking a confrontation with the federal government, especially when he would probably be looking for a cabinet appointment in a hypothetical post-2016 Democratic administration (he’ll be term-limited out of office in 2018).

#4 Comment By Jordan Bloom On November 5, 2012 @ 6:07 pm

JDB,
I totally agree. One of the interesting dynamics about this issue is that the states most likely to favor a robust interpretation of states’ rights are the least likely to legalize marijuana.

#5 Comment By Ray Hamel On November 5, 2012 @ 7:08 pm

Jordan Bloom,
True, unfortunately. IMO, the pot legalization movement should probably target New Hampshire, as the most likely state to both favor legalization *and* oppose federal attempts at enforcement. Subsequently, they could move on to other similarish states like Vermont, Nevada, Montana, Wyoming etc.

#6 Comment By EngineerScotty On November 5, 2012 @ 8:45 pm

I would think that any dispute between the Feds and state officials will be resolved in the ways such things are usually resolved–in court–and not with state and local cops pulling guns on each other. The last time we had official state attempts to nullify federal laws with violence was Southern opposition to federal civil rights laws, and we know how that turned out.

Whether this would fundamentally change marijuana jurisprudence, I don’t know: The SCOTUS has long held federal pot laws to be unconstitutional, but hasn’t had to deal with a challenge to these from a state plaintiff. Of course, as you not, officials in Denver and Olympia (or Salem, should a similar measure in Oregon pass, though this is considered less likely) may be perfectly happy to not oppose a federal crackdown on pot operations within their states.

A more interesting question for state nullification: Later this month (after the election), SCOTUS considers Prop 8. The law was thrown out by the 9th Circuit on narrow grounds, that only apply to the state of California; but the legal argument advanced by the 9th circuit in support of this narrow ruling was flimsy–whereas the argument in favor of ending marriage discrimination itself has a firmer legal basis. What if SCOTUS–the four liberals, and one of the conservative five, donning a libertarian hat, were to shock everyone and declare a Constitutional right to same-sex marriage? Assuming Obama wins, there will be immense federal pressure to enforce such a ruling, and much wailing and gnashing of teeth in those states where the President is unpopular.

THAT could get interesting.

#7 Comment By EngineerScotty On November 5, 2012 @ 8:50 pm

Er, SCOTUS has long held federal pot laws to be CONSTITUTIONAL.

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#11 Comment By Kamron On November 7, 2012 @ 6:36 pm

I think that such a conflict would be a disaster for both sides, and one that neither would be likely to willingly create. So it’s a game of chicken- but one where the state has much less to lose if it pulls back (the ability to legalize pot v having the federal government continue as it currently exists).
The only people who would back this from a state level are those who either ideologically back states rights, or those who imagine that the federal government would blink first and set the stage for a number of other mini-revolts on issues closer to their hearts.
And thus, this dream scenario for the few states rights folks will never come to pass. At least, not until there is once again an issue that inflames the vast majority of an entire state or group of states. I see no such issue on the horizon.

#12 Pingback By Nullification: The Urgency of Protecting States’ Rights « Family Survival Protocol On December 1, 2012 @ 4:15 am

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