Bill Recognizing States' Authority to Legalize Pot Poses Challenge to Avowed Federalists

Yesterday Rep. Diana DeGette (D-Colo.) officially introduced a bill aimed at making it clear that legalizing marijuana in Colorado and Washington does not violate the Controlled Substances Act (CSA). The bill, dubbed the Respect States' and Citizens' Rights Act of 2012, amends a section of the CSA that deals with conflicts between state and federal law:

No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together. 

Ad I've said before, a state's choice to repeal penalties for actions that the federal government continues to treat as crimes does not create a "positive conflict." Even after Colorado and Washington begin licensing marijuana growers and sellers, it will be perfectly possible for people there to obey both state and federal law; they just have to stay out of the cannabis business. The weakness of the argument that the CSA bars states from legalizing marijuana helps explain why the Justice Department has never used it in court to challenge laws allowing medical use of the plant, which have been around since Californians approved Proposition 215 in 1996. DeGette's bill nevertheless seeks to head off any such legal action in response to the legalization of recreational marijuana in Colorado and Washington by adding this marijuana-specific paragraph:

Special Rule Regarding State Marihuana Laws - In the case of any State law that pertains to marihuana, no provision of this title shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of State law on the same subject matter, nor shall any provision of this title be construed as preempting any such State law.

This amendment seems to eliminate any threat of litigation over implied pre-emption or the meaning of "positive conflict." But why limit it to marijuana? Federalism in this area should apply equally to any drug a state decides to treat differently. The special pleading for this one particular plant dilutes the principled argument for state autonomy.

Speaking of which, the bill so far has only two Republican co-sponsors: Ron Paul of Texas (naturally) and Mike Coffman of Colorado. It seems like Dana Rohrabacher (R-Calif.), who backed a more ambitious Paul-sponsored bill aimed at repealing federal marijuana prohibition, should not be shy about adding his name to this list as well. How about Justin Amash (R-Mich.), who "supports federalism on all legislation not specifically authorized in the Constitution"? Any others? Now is put-up-or-shut-up time for avowed federalists in the House. It is certainly strange, if not embarrassing, to see that Democrats are more enthusiastic about a bill with "states' rights" in the title than Republicans are. Behold the power of pot.