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. 

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  1. . 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


    The Republicans have generally been hostile to “States Rights” since they coalesced from the debris of implosion of the Whigs and a bunch of populist “third” parties.

    What’s really remarkable is how the various factions of Republicans have really stayed in one place while the Democrats went from being the party of freedom to supporting progressive totalitarianism.

    1. tarran, try to be so historically informed that you miss the present picture.

      those advocating against unfunded mandates, leaving social issues to the states, Tenthers, opposed to expansive Commerce Clause powers, Tea Partiers, The Federalist Society – all of them have distinct Republican flavorings.

      1. And the Republican Party* does a good job of pretending to listen to them. They’re like the Pro-lifers, who are perennially convinced that after the next election the Republican Party will ban abortion/increase economic freedom.

        The party is Lucy holding the football, and a lot of their supporters are Charlie Browns that keep getting tricked into taking a run at kicking the ball.

        *The Democrats do this too BTW.

    2. also typically titles in bill indicate exactly what they are not.

    3. When were Democrats the party of freedom?

      They were the party of Slavery and Jim Crow until the 1960s.

  2. Jeez, Jacob, you gave it all of one day before pronouncing that Ds are better than Rs on this issue?

    How about giving it a week or so? Mein Gott.

    And obviously Diana DeGette is a racist. States’ Rights? What an obvious dog-whistle.

  3. It’s because Republicans are as federalist as they are pro-limited government or constitutionalist. These concepts are important only when they jive with their existing political positions or when they can be used against Team Blue.

    Lip service is cheap. The number of Reasonoids who break for Team Red proves that sometimes that’s all it takes.

    1. And that goes both ways. Lip service about economic and social progress for the poor, the Middle Class and minorities wins those votes over for Team Blue, despite the fact that their policies are actually regressive.

      1. Yes, why can’t those poor, Middle class and minorities realize what’s in their own self-interest?

        1. I guess its the in the poor’s self-interest to have currency devaluation resulting from excessive deficit spending, which increases cost of living faster than wages? Psuedo-Keynesians like you brutalize Keynes’ philosophy beyond recognition, assuming it is an economic justification for any and all infinite spending and entitlements.

          Oh wait, but there’s a solution! Hike the minimum wage! There will surely not be massive layoffs of low-skilled workers whose jobs are already not worth to the market the price they are being paid today. Certainly several minimum wage hikes over the past decade have nothing whatsoever to do with the current unemployment rate!

          And Team Blue has been a big factor in royally fucking over minorities thanks to the war on drugs, which exacerbates cycles of poverty by making an already disadvantaged underclass mostly unemployable. Same with no-limit, no-need-to-work welfare and public housing projects, which some Democrats still defend despite decades of horrific inner city evidence to the contrary.

          And let’s not even start on the disproportionate impact of the regulatory state on small businesses.

          So yes, Team Blue is indefensibly regressive as fuck. The fact that Team Red wants marginally less progressive tax rates won’t change the fact that overall, Team Blue economics is worse for the poor, the middle class, minorities and small businesses. But lip service works, and that’s my point.

  4. “I’d like to attach an abortion rider to this bill…”

    1. States rights’ [less than] wimmenz’ rights.

  5. “Politicians Don’t Walk Their Own Talk,” episode 1,972,738.

  6. *sigh* You need a bill stating that the US Constitution applies? We be fucked.

    1. you haven’t been following Rand Paul these last few weeks, have you?

      1. No I haven’t, why

  7. So miraculously Republicans will stand for a principle they espouse?

  8. No, it is not time to put up or shut up. This bill is just plain silly — legislative masturbation. No knowledgeable person seriously thinks such a bill would be necessary or have any effect. There are already state licenses for controlled substances; almost every pharmacy has them. Has anyone ever said the state cannot issue such a license unless the pharmacy has a federal license first? More importantly, is the state’s licensing law invalid because a pharmacy might have a state license but not a federal one?

    I’d respect a legislator interested in federalism more for not signing onto this one than for signing onto it.

    1. What the hell do they lose by signing it? It isn’t exactly a compromising position.

  9. Anybody want to take a bet on whether Obama will sign this, if it gets to his desk?

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  12. States rights are in the Constitution, which has no mention of marijuana being in the Federal domain. In fact, it specifically says “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.”

    So it’s the Feds who earlier made the unconstitutional power-grab here…

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