Senate Democrats Embrace Marijuana Federalism. Will Republicans?

Senate Democratic Leader Charles Schumer is embracing a sensible approach to marijuana reform.


Senate Democratic Leader Charles Schumer (D-NY) has joined with Senators Cory Booker (D-NJ) and Ron Wyden (D-OR) to propose serious marijuana reform legislation. Although still in a discussion draft, the proposed Cannabis Administration & Opportunity Act (CAOA) represents a serious attempt to respond to the dramatic increase in support for marijuana legalization while still respecting those jurisdictions that have refused to embrace marijuana law reform. In short, the CAOA embraces Marijuana Federalism. (I wonder if any of its sponsors read my book: Marijuana Federalism: Uncle Sam and Mary Jane.)

The CAOA would decriminalize marijuana at the federal level, but would not preempt state laws that prohibit or limit marijuana use and possession. Under the CAOA, trafficking in marijuana and distributing marijuana contrary to applicable state law would also be a federal crime, as it is with alcohol. In other words, the CAOA would give states greater autonomy to set their own marijuana laws in response to local preferences. Other provisions of the proposed bill would pave the way for the taxation and regulation of marijuana (treating marijuana much like nutritional supplements) and expunge non-violent cannabis offenses.

Eliminating the federal prohibition would not only give states greater control over marijuana within their jurisdictions. It would also eliminate the distortions and perverse incentives created by the way federal marijuana prohibition interacts with tax law, banking regulation, firearm background checks, and immigration law. Treating marijuana more like alcohol would further mean states would continue to receive federal assistance in combatting interstate trafficking—and it would be easier to focus federal resources in this way without the federal prohibition overhang.

This sort of marijuana reform would be most welcome. Democrats no doubt support this reform because of the strong popular support for marijuana decriminalization, particularly among younger voters, and the connection of marijuana prohibition to over-incarceration.

Republicans should support this approach to marijuana too, but for a different reason: Federalism. This approach would mean that each state could adopt the degree of marijuana reform desired by local voters, whether that means full decriminalization (as was just done in Connecticut), allowing marijuana solely for medicinal uses, or a maintenance of prohibition. This would also enable different jurisdictions to experiment with different sorts of reforms, helping to reveal what mix of marijuana policies work best. This is something conservatives should support. Adhering to what Justice Thomas (rightly) described as the "contradictory and unstable" status quo is not.

For more on why Marijuana Federalism makes sense, I shamelessly recommend by book: Marijuana Federalism: Uncle Sam and Mary Jane, published by the Brookings Institution and available on Amazon. My Introduction, "Our Federalism On Drugs," is available here.

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  1. Half the murderers are drunk. Half the murder victims are drunk. Half the suicides are drunk. Half the crash victims are drunk. Half the drug overdose dead are drunk. Alcohol kills 80000 people directly, damaging and causing cancer in every organ of the body.

    Marijuana kills 50 people a year, all in car crashes from impaired driving.

    Naturally, the lawyer has alcohol as legal, and marijuana as illegal.

  2. How can a 163 page bill to do something that can be accomplished in a paragraph — removing marijuana from all schedules of controlled substances and allowing states to regulate it — be considered “sensible”?

    1. John,
      That would be far more sensible and remove what would become a complete confusion for Federal workers requiring clearances

    2. Not really as simple as a paragraph.

      .gov levies excise taxes on alcohol and tobacco, and imoses requirements on producers to prevent smuggling and tax evasion.

      So, there needs to be a similar framework for cannabis and cannabis products. Primary regulation needs to be transferred from DEA to FDA and Alcohol and Tobacco Tax and Trade Bureau (TTB), under the Treasury.

      Then there are food labeling requirements.

      I am sure that the USDA will need to have some authority over farming and harvesting it. Gotta make sure ‘murica produces Grade A Prime shit.

      And then there is banking…

      And on an on.

      I mean this is sort of Federalism, except not really. It’s a framework to legalize, regulate, and tax it at the Federal Level. States are free to continue banning it, but why would they? Tax revenues for thee and not for me? nah.

      Don’t get me wrong, I 1000% support it. But I think to call this “cannabis Federalism” is quite a stretch.

      1. Gotta make sure ‘murica produces Grade A Prime shit.

        I don’t see that as a problem. In my experience nothing but Grade A Prime shit is ever sold.

        1. That’s because Grade F shit is relabeled as grade A prime shit. Or marketed as something completely different, like “Superior High Integrity Tail-droppings.

          1. That’s the joke.

        2. But is it made in Murica, Mexico, or some other place?

          I only want Made In Murica shit, because USA

          1. That’s because Grade F shit is relabeled as grade A prime shit.

            You mean that guy was lying to me? Say it ain’t so.

    3. Oh John…

      The federal government regulates milk. Marijuana would of course be more regulated than milk, I would hope.

  3. Sullum has a slightly different take on this bill. Adding exorbitant federal taxes on top of already high state taxes ensures that the black market will continue to thrive. Do we really need more Eric Garners?

    Rather then increase federalism, it will decrease it. As dwb68 points out, a lot more federal agencies will be involved: FDA, BATF, USDA, etc. They will issue regulations that will override what a lot of states have already put in place.

    Respect State Marijuana Laws Act of 2017 is a much better bill.

      1. Thanks, I was going to post it if no one else had. This bill is terrible. Its good is minuscule compared to the bad.

        1. Schumer, Booker, Wyden. Nuff said. Schumer, one can guess, is only interested from a taxation standpoint, given his zeal for regulatory excess. Booker, looking at NJ’s economy, likely the same, but one may have to check with T-Bone. Wyden, same, with Oregon’s daffy politics for good measure.

    1. Let’s be honest, there are negative externalities associated with consumption of marijuana. Are they higher than say cigarettes or alcohol, which is legal? No. But they exist. So taxing it is reasonable.

      Eric Garner was committing a crime and should have been arrested for it. He shouldn’t have been treated like he was. The officer was evil and a monster. But the government has a right to tax cigarettes to discourage their use, because they are bad for society writ large.

      Something has to pay for government services, and I understand some people here are full on libertarian and want to abolish the government, but for now it exists. The best economic system is to fund those services with things that cause negative externalities.

      So yeah. The government wants tax revenue. Id rather it be marijuana than more of my income.

      1. “So yeah. The government wants tax revenue. Id rather it be marijuana than more of my income.”

        I think the feds will follow sort of a both/and solution. I don’t see Schumer declaring that “at last, with these marijuana taxes, we can lift some of the burden off of the shoulders of regular taxpayers!”

        No, I haven’t heard of him saying any such thing.

        And why should the fed have to dip its beak if the states are already collecting taxes to deter these externalities?

      2. > Eric Garner was committing a crime and should have been arrested for it. He shouldn’t have been treated like he was.

        A lot of the criticism is, either implicitly or explicitly, about the relative priorities that seem to lead to Eric Garners dying and fewer scofflaws dealing in much larger dollar amounts of harm going free. It appears to many to that it is far preferred to make sure some dude isn’t selling singles than to go after banksters putting people out of their homes or murderous dealers who have a friend in the department.

        Part of this is natural – cops have an easier time of investigating (to say nothing of killing) the powerless, so they target appropriately. That’s correctable with proper management, not that we have it. But priorities start higher up the cultural taxonomy of human relations.

      3. ” there are negative externalities associated with consumption of marijuana. Are they higher than say cigarettes or alcohol, which is legal? ”

        That’s not clear. You’re comparing a legal drug, with one which is illegal, which the widespread, consistent, legal, long-term commercial use is unknown.

        1. Utter hogwash.

    2. A lot of Federal Agencies are *already* involved. DEA, FDA, Treasury… Most of them will continue to be involved, in a different way.

      I would personally not let perfect be the enemy of the good here. CAOA is, realistically, what cannabis legalization will look like. I embrace progress. I just don’t want to pretend we are getting Federalism.

    3. With your proposal, the unfortunate conflict between state and federal law continues for no good reason

      1. How so? HR 975 says that “the provisions of this subchapter related to marihuana shall not apply to any person acting in compliance with State laws relating to the production, possession, distribution, dispensation, administration, or delivery of marihuana.”

        The Feds can keep interstate traffic illegal; but, leaves the states free to set their own laws concerning production, possession, distribution, dispensation, etc. on intrastate marihuana.


  4. The true question here is the international treaty that the US has signed, regarding Marijuana.

    The Single Convention on Narcotic Drugs makes marijuana illegal for recreational use and sale.

    If international treaties are to mean anything, then Marijuana’s status should be resolved there, before any federal decision on legalizing it is made.

    1. I checked the treaty, any country party to it can denounce it and be free of it in one or two years.

      So just as Bolivia (iirc) denounced the treaty in order to be able to legalize coca-leaf chewing, then re-ratified the treaty with a reservation that coca-leaf chewing is protected, the USA can do likewise, denouncing the treaty then re-ratifying it with a marijuana reservation.

      1. It’s not quite that simple.

        1. Bolivia is not the US. Coca leaf and the indigenous use in Bolivia is not the widespread first world recreational use of Marijuana that is being pushed in the US. This isn’t a minor variation for a indigenous group…that would be like peyote and Native Americans. This is a massive multi-billion dollar industry in a first world country that the Single Convention was partially aimed against.

        2. The issue is, it would set the example that whenever a country found a treaty “inconvenient,” they could just pull out with the exemption they wanted, then rejoin. Effectively, it would make treaties discardable.

        3. This isn’t just the drug treaty. Other treaties could be looked at the same way. Geneva Conventions, global arms controls, etc. The implications of such a move, by such a major power (Rather than negotiate changes to the treaty within the structure of the treaty…which would be the proper way) are enormous.

        1. I thought you were addressing the basic “obey treaties” issue.

          But I think a country must act cautiously when deciding whether it wants to internationally commit itself to locking up its own citizens. If there’s doubt, it should preserve its own freedom of action to *not* lock up its own citizens.

          Even if a country ultimately decides to lock up its citizens, it should do so based on an assessment of the country’s own needs, not the desire to preserve some international infrastructure.

          1. “the basic “obey treaties” issue.”
            Indeed. There are very minor variations that may be able to be brushed over…and major deviations which destroy the treaty.

            “Even if a country ultimately decides to lock up its citizens, it should do so based on an assessment of the country’s own needs, not the desire to preserve some international infrastructure.”

            There are lots and lots of treaties that ultimately require a nation to “lock up” its own citizens if they decide to break them. For example…the Geneva Conventions.

            1. “There are very minor variations that may be able to be brushed over…and major deviations which destroy the treaty.”

              I’m still not sure how pressing an “eject” button which is *built into the treaty itself* is a “deviation” at all.

              Would the drug treaty even have garnered so many ratifications if there was no eject button? The drafters at least may have considered that issue.

              I’ve already mentioned the Geneva Conventions – even if a country denounces any (or all) of those treaties then it’s very specific that the country remains bound – according to the treaties themselves – by “the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity and the dictates of the public conscience.”

              1. The issue isn’t the “eject” button. It’s that you think re-ratification with “exceptions” will work.

                It’s like signing the Geneva Convention, but saying “Well I have an exemption for torture” in it… It doesn’t work. And it’s not accepted.

                1. I think I’ve already sufficiently belabored my point about the Geneva Conventions. The texts of those instruments make clear that even a power that denounces a treaty remains bound by…well, I’ve quoted it.

                  So in other words, I think the Geneva Conventions are on a somewhat higher level than the drug treaty, embodying principles which are generally binding even in the absence of the treaty (indeed, even before the treaty was adopted in 1949 we hanged people for violating the principles contained therein).

                  1. “International law”. Like….obeying treaties.

                    And while you may think the Geneva Conventions are on a “higher level” than drug treaties…they’re treaties. And if you casually disregard one set, then don’t be surprised if other sets are disregarded casually.

                    1. If I may speak with respect, I think the “casual disregard” of the drug treaty comes when a country adheres to it and doesn’t carry it out, not when it forthrightly uses the treaty’s own mechanisms to get out of it, which would be full compliance with the treaty terms, which is more than I can say about claiming a legalize-personal-use regime, unilaterally adopted for some drug, complies with the treaty.

                      And if, having left the treaty, a country can’t get back in because other countries want us to lock up our citizens over dope, well the issue isn’t whether we should lock up our citizens over dope but whether it’s the UN’s business at all once we’ve legitimately left the treaty.

                      Most of the good things we’ve done internationally have been outside the auspices of the UN, whose history of promoting international comity is…not really good.

                    2. I used to have this argument with the late Mark Kleiman.

                      As far as I am concerned, the Single Convention is an excuse. We should withdraw from and/or abrogate it.

                      The reality is that the War on Drugs causes all sorts of harm, both domestically and internationally, and does very little to prevent drug users from buying them. Just like we should have federalism at the national level, we should have it at the international level- if some nations want to fight the War on Drugs, they should be able to; if others don’t, that should be a valid choice as well.

                      The Single Convention is an absolutely awful, totalitarian treaty that should have never been negotiated or signed. We should pull out, and we have every right to- the prohibition of drugs is not a jus cogens international norm.

        2. “Effectively, it would make treaties discardable.”

          It’s the language of the treaty itself which allows for denunciation. It comes pre-installed with an exit button. Presumably they anticipated that some countries would press that button.

          As for the Geneva Convention, even a power denouncing the convention remains bound by “the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity and the dictates of the public conscience.”

          1. Every treaty should have an “out” button. But being able to get back in…that’s a different issue.

            Should the US be a major outlier on a treaty in regards to policing drugs? Not just marijuana, but Cocaine, Heroin, Fentanyl and other very dangerous drugs?

            1. If that’s your concern, re-ratifying with a dope reservation would solve the problem.

              1. And if the treaty organization doesn’t accept the re-ratification with a dope reservation? If they say “You take the entire treaty or none of it?”

                1. Then take none.

                  1. Sure…take none.

                    Then, when Pablo Escobar, or the next drug lord is exporting hundreds of tons of cocaine and Fentanyl into the US, and the US wants him extradited..

                    What happens? There’s no treaty in force. There’s no reason to do it.

                    1. I was under the impression there was an extradition treaty.

                      Is the UN really so awesome that without them, we couldn’t fight drugs? If that’s the case then we’re doomed for all sorts of reasons.

                    2. It’s a treaty between nations. That’s the treaty you would so casually walk out of, without considering, or trying to change from the inside.

                      The consequences of doing it, you haven’t really thought about.

                    3. You seem to be confusing the UN drug treaty with the extradition treaty between the U. S. and Mexico. Also, you seem thing “disagrees with me” means the same thing as “didn’t think about it as much as I did.”

                    4. Read Article 6 of the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances

                    5. Why don’t you use the link I provided, and find that text yourself?

                    6. For those watching at home, the provision AL is citing strengthens pre-existing and subsequent extradition treaties my having them cover the drugs offenses described in the treaty. (But what if those offenses are *already* covered in the extradition treaties? Then there’s no work for the drug treaty to do)

                      It’s the extradition treaties themselves, not the drugs treaty, which require Pablo Escobar and the Marlboro Man to be sent to face trial.

                      Now, why not look up Article 9 of the US/Mexico extradition treaty and see how it might complicate any effort by the U. S. to bring a Mexican drug lord here for trial.

            2. Should the US be a major outlier on a treaty in regards to policing drugs? Not just marijuana, but Cocaine, Heroin, Fentanyl and other very dangerous drugs?

              If the rest of the world imposes marijuana prohibition as a condition of it, of course we should. This is actually a no brainer.

        3. Finally…treaty or no treaty, we seem to be backing away from our marijuana ban, and the gap between the text and implementation of the treaty will grow wider and wider, contributing to more disrespect for treaties than a plain denunciation.

          1. “we seem to be backing away from our marijuana ban,”

            We do. On this we agree. But there’s a big difference between decriminalization (but keeping it illegal), and broad-large scale commercial growing, sales, transactions, and advertising.

            There’s a big difference between someone growing a single plant in their kitchen. And Marlboro mass producing the most addictive variety they can, combining it with nicotine, and advertising it to 18-year olds… Especially in terms of a treaty.

            1. Even if the Marlboro Man should go to prison for dope-dealing, it should be for violating federal or state law, not to please the UN or the international drug-treaty mandarins. Or our fellow-signatories. Denouncing the treaty (perhaps combined with a re-ratification with a marijuana reservation) simply means that whether to lock up the Marlboro Man is a decision for the federal or state governments to make, not the UN’s.

              Meanwhile, what would we say to a fellow-signatory which tells us that, following the above interpretation of the treaty, it is allowing personal use of cocaine and forbidding only corporate trafficking? A frank denunciation would represent more fair dealing than a strained construction.

              1. And when the UK seeks the Marlboro man be extradited to the US, because of the Marlboro-brand marijuana cigarettes that are making its way to the UK shores, and the treaties in force that are supposed to prevent trading in marijuana?

                What then?

                1. I don’t know, it sounds like an issue of bilateral US/UK relations, not a matter for the United Nations and their mandarins.

                  1. The UN has little to do with it ultimately. It’s a treaty between nations.

                    If you’re going disregard it, you’re disrespecting the other nations.

                    1. You were positing that the U. S. offered to rejoin with a reservation against locking up our people for MJ, and suggesting that other nations would refuse to let us become a treaty party again.

                      Who would be disrespecting whom, in that scenario?

                      “The UN has little to do with it ultimately.”

                      I gave you a link to the *United Nations’ page* on drug control treaties. They sure *act* like they want to piss on this particular fire hydrant.

                    2. Again, if we’re going to lock up the Marlboro man, let it be because he deserves to be locked up, not because we’re sacrificing him to stop other countries from being mad at us.

            2. We do. On this we agree. But there’s a big difference between decriminalization (but keeping it illegal), and broad-large scale commercial growing, sales, transactions, and advertising.

              The big difference is the latter is based in reality whereas the former is a fantasy world where the country can morally preen.

        4. It is true that international law does not allow reservations that undermine the object and purpose of a treaty, for the very reasons you lay out in #2 and #3.

          However, in this particular case, Article 49 of the Single Convention on Narcotic Drugs explicitly lists five things that can be temporarily permitted:

          (a) The quasi-medical use of opium;
          (b) Opium smoking;
          (c) Coca leaf chewing;
          (d) The use of cannabis, cannabis resin, extracts and tinctures of cannabis for non-medical purposes;
          (e) The production and manufacture of and trade in the drugs, referred to under (a) to (d) for the purposes mentioned therein.

          Now, there are a whole pile of limitations on these temporary permissions in Article 49, chief of which is that they are temporary. However, the explicit calling-out of these temporarily permitted cases is an indication that their prohibition is not central to the object and purpose of the treaty. Further, the failure of any state to file formal objections to the non-temporary Bolivian reservation on coca leaf on its re-accession constitutes a precedent that a non-temporary reservation regarding one of the drugs specifically covered in Article 49 does not defeat the object and purpose of the treaty.

          As far as your first point of objection, the international law principle of the sovereign equality of states, enacted in the UN Charter, does not allow a general “But you’re a more important country!” exception to the exercise of normal rights under international law. The precedent of Bolivia’s actions are available to every sovereign state, and every party to the Single Convention that didn’t file an objection to Bolivia’s reservation of 11 January 2013 would have been aware of it.

  5. I like the idea behind this. The Feds have no place in regulating marijuana or other drugs. The problem I foresee is the slippery slope going from allowing states to legalize marijuana to requiring states to legalize it.

    1. How can you say you like the idea behind this at the same time as saying the feds have no business regulating drugs, when the idea behind this is federal regulation?

      1. The federal government already bans it and sniffs through the banking system looking for laundered money. Then flash-bangs on your door at 0 Dark 30. Legalizing it is regulating it a little less, by definition.

        CAOA is mostly what legalizing cannabis will look like. Food labeling, food safety standards, excise taxes, etc.

        Wishing for the FDA to not to enforce uniform cannabis labels and for the government not to tax it is about the same as hoping for the tooth fairy to put q pony under your pillow. The libertarian fairy won’t be canceling the FDA in my lifetime.

        1. This bill has so much federal regulation that it will only increase opportunities to interfere. It takes so much authority away from the states that it is not any kind of federalism.

          1. As opposed to the total ban now?

            This has a lot of Federal regulation… because there are a lot of federal regulations surrounding everything, including milk.

      2. The “idea behind this” is getting the feds out of the drug (at least marijuana) banning business. I personally have no use for pot or any other drug. I have even less use for the “War on Drugs” that has cost this country billions (trillions?) of dollars and countless lives of our citizens lost to over zealous drug warriors.

        1. And in my original comment “regulating” should have been “banning” but no edit function.

        2. “The “idea behind this” is getting the feds out of the drug (at least marijuana) banning business.”

          There is a story, which I am unfortunately pulling from incomplete memory, which seems appropriate.

          It seems that a large educational institution was having problems maintaining the lovely, well-manicured lawns in one part of campus. The problem was the students were cutting across the lawns to get where they were going, and the constant tread killed the grass. So they tried all sorts of campaigns to get the students to stay on the sidewalks, none of which were successful. They finally brought in the big gun, a famous American (sadly, my memory did not retain the identity of the famous person). So the administration of the educational institution asked the famous person, “how do we get the students to stay off the lawns, and on the sidewalks?”
          the famous person finally responded, “why don’t you put the sidewalks where the students want to walk, and then they’ll stay on them of their own accord?”

  6. Sorry Adler but Schumer is a scum bag and using this to regulate and tax as democrats always do to create revenue streams for grifter public elite types…the guy is an American Trotsky…

    Pretty easy for the legislation to just end Federal opinion on pot period. It’s a States issue not a Federal issue. Wow you could write that law in on paragraph not 168 pages…like alcohol “legalization” isn’t the free market but setting up grifter rules for the well connected (you still have a problem buying wine on line due to the legacy wholesale complex which has bough out govts).

    Schumer is the worst sort of politician..buying votes and enriching his groups…proto bolshevik

    1. “Schumer is a scum bag and using this to regulate and tax as democrats always do to create revenue streams”

      As opposed to the Republican method of creating revenue streams. Cut taxes and pretend the money is just rolling in…

  7. This is, at it’s heart, just another democratic tax bill.

    1. And? It will cost me approximately $0 in additional taxes.
      Let some people out of prison who are currently being supported at public expense, and it just might free up some budget for something I want the government to pay for.

  8. Marijuana federalism is a good idea. What the Democrats have proposed, however, is nothing like that at all. They somehow managed to propose something that’s worse than the status quo.

    1. Worse for whom? Private-prison contractors?

  9. Y’all seem to be just looking for something to complain about.

    Why should pot be different than most other similar substances in the US? You may not like vice taxes, but that’s windmill tilting.

    Well, that or finding a way to continue your streak of disapproving of everything Dems do because you’ve just gotta be pure in your tribalism.

    1. You are showing your own tribalism by viewing everything through a D vs R prism. HR 975, which I like, was passed last year by a Democatrically controlled house.

      RE taxes: One of the purposes of legalizing it is to get rid of the black market. If you tax it so high that the black market, along with all the evils associated with it, continues to exist, you haven’t accomplished anything. Can you say Eric Garner? I knew you could.

    2. Strange, isn’t it? A major longstanding LP platform is now mainstream but they are not happy. But not so strange if my theory is correct, the Democrats are the anti-white straight male party and hence cannot get any credit for ‘libertarian’ achievements, since that was just a project to protect that class.

      1. Typical queenie response. When all else fails, accuse your opponents of being racist. You were the first one to bring up race.

        While legalizing marijuana has been a long standing goal of the LP, Schummer’s bill isn’t a “longstanding LP platform”. If you read Sullum’s column you will see why many libertarians oppose it. Neither race or political party are the objections.

        1. Adler was not asking libertarians to support it. He was asking Republicans. Libertarians are never in power.

          1. Queenie was the one who brought up the “major longstanding LP platform”. Why would she expect Republicans to automatically support an LP platform?

            1. They like to talk about supporting liberty… unless it’s somebody else’s liberty.

        2. The general observation is that Libertarians are just Republicans who want to smoke weed.

  10. As long as the states can still use marijuana laws to disproportionally oppress the black folks, I’m sure the Republicans will approve of letting the white ones toke up.

    1. Eliminating officers smelling the odor of raw marijuana as a basis for PC would be helpful in CJ reform.

      1. Agreed. That NY state had to expressly provide that in statutory form – even after decriminalization – was a good demonstration of how pernicious the “marijuana odor exception to the 4th Amd” has become in the U.S., and how reliant law enforcement is on it when they want an effort- and constitution-free excuse to search through people’s pockets.

        1. They just want to keep DWB as a reason to pull people over.

  11. This bill is the opposite of embracing federalism.

    Big whiff by Adler.

    1. “This bill is the opposite of embracing federalism. ”

      You have made a stupid claim. Extremely so.

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