People don’t remember this but, in 1857, federal troops marched on Utah because that state wanted to chart its own course with respect to ‘plural marriage’ – otherwise known as polygamy - and preserving theocratic elements in its state government. The War of Utah ended after a few brief skirmishes when Brigham Young submitted to the authority of the federal government.
Today, we have 28 states and the District of Columbia trying to chart their own course on marijuana for medical or recreational use, even though marijuana is a controlled substance and illegal under federal law. But Attorney General Jeff Sessions at the beginning of the year rescinded the Obama administration’s hands-off marijuana enforcement policy. Under the Trump administration’s new policy, federal prosecutors across the country will decide whether and how to enforce federal laws against pot in states where it is legal.
You’d think the Supremacy Clause in the U.S. Constitution would make pot enforcement a slam dunk. Article VI, Clause 2 clearly says federal laws, treaties, and the U.S. Constitution are the supreme law of the land. But the U.S. Supreme Court turned away a Supremacy Clause challenge to Colorado’s marijuana laws in 2016. Ron Paul argues that the U.S. Constitution does not give the federal government the power to criminalize marijuana in the first place and, thus, that power is reserved to the states under the Tenth Amendment.
The nation has a long history of trotting out states’ rights arguments for all sorts of things, including the justification of slavery. As Tea Partiers know, Jefferson and Madison wrote in favor of allowing nullification of federal law, saying states have a duty to protect citizens from federal usurpations of power. More recently, former Attorney General Eric Holder said nullification has become an interesting question.
And so it has. The Left has used nullification arguments to advance liberal positions on sanctuary cities and states, indefinite military detention under the NDAA, and mass surveillance, as well as to legalize marijuana at the state level.
Small-government types, on the other hand, have used nullification arguments to try to get out from under federal laws regarding gun control, abortion, the environment, Agenda 21, Common Core, and Obamacare insurance mandates.
So nullification is neither good nor bad. Law is a weapon. Nullification and the Tenth Amendment are arrows in the quiver. Pull them out when they can help you get to where you want to go.
As for marijuana, Jeff Sessions won’t be sending federal troops to California any time soon. But we have an untenable situation. Twenty-eight states and the District of Columbia just say no to federal marijuana laws, but those laws remain on the books. This breeds disrespect for the Rule of Law and needs to be resolved, one way or another.