Nullification?

[trapdoor]

Somewhere, lost in the misty haze of, well, misty haze, as Colorado and Washington state legalize recreational marijuana, is a distinct point.

Marijuana is still illegal, outlawed in 1932 by the Uniform State Narcotics Act. No matter what these states do, marijuana is an illegal substance under U.S. law.

So far, the current Department of Justice and the current president have said they choose not to prosecute in these states (although apparently even that isn't a 100 percent guarantee), but this administration will undoubtedly move on three years hence, and what then?

For now, the states have exercised, effectively, nullification of federal commerce law. Will this be allowed to continue with a less agreeable president?

And if it is, can states then cherry-pick among the federal laws that they want to obey? Suppose a state objects to the National Firearms Act of 1935, and says that all machineguns manufactured within state boundaries are legal to everyone living in the state? The state, from a legal standpoint, would have done nothing more than Colorado and Washington have done saying, "We don't care that there are other legal requirements at the federal level -- we're going our own way here."

This opens up a rather large and complex ball of string (bucket of shrimp, if you prefer). Can states effectively decide on enforcement within their own boundaries? Can they nullify federal law?

Some of the founding fathers thought so. Others didn't.

 

[Marcus Aurelius]

will be interesting to see how a challenge to something like that would shake out in the SCOTUS, huh.

 

[marvin martian]

It's a good question, and it's one of the reasons why the founders sought to forever limit the legislative role of the federal government. There's a reason why they wanted the states to be mostly in charge of determining their laws, and this is one of the factors.

 

[NightSwimmer]

Somewhere, lost in the misty haze of, well, misty haze, as Colorado and Washington state legalize recreational marijuana, is a distinct point.

Marijuana is still illegal, outlawed in 1932 by the Uniform State Narcotics Act. No matter what these states do, marijuana is an illegal substance under U.S. law.

So far, the current Department of Justice and the current president have said they choose not to prosecute in these states (although apparently even that isn't a 100 percent guarantee), but this administration will undoubtedly move on three years hence, and what then?

For now, the states have exercised, effectively, nullification of federal commerce law. Will this be allowed to continue with a less agreeable president?

And if it is, can states then cherry-pick among the federal laws that they want to obey? Suppose a state objects to the National Firearms Act of 1935, and says that all machineguns manufactured within state boundaries are legal to everyone living in the state? The state, from a legal standpoint, would have done nothing more than Colorado and Washington have done saying, "We don't care that there are other legal requirements at the federal level -- we're going our own way here."

This opens up a rather large and complex ball of string (bucket of shrimp, if you prefer). Can states effectively decide on enforcement within their own boundaries? Can they nullify federal law?

Some of the founding fathers thought so. Others didn't.

You are correct. These moves to legalize marijuana use are a form of protest and they certainly do amount to nullification of federal law. Were there a significant harm that nullification of marijuana prohibition presented to the federal government, or if there was not significant public support for ending marijuana prohibition, then the feds would have squashed these protests rather quickly. They have the right to do just that under our Constitution.

The current administration has chosen to effectively ignore the issue. Who knows what the next administration will do? Perhaps they will press for eliminating marijuana prohibition at the federal level. Then there wouldn't be a problem.

 

[trapdoor]

You are correct. These moves to legalize marijuana use are a form of protest and they certainly do amount to nullification of federal law. Were there a significant harm that nullification of marijuana prohibition presented to the federal government, or if there was not significant public support for ending marijuana prohibition, then the feds would have squashed these protests rather quickly. They have the right to do just that under our Constitution.

The current administration has chosen to effectively ignore the issue. Who knows what the next administration will do? Perhaps they will press for eliminating marijuana prohibition at the federal level. Then there wouldn't be a problem.

The "significant harm," if any, would be the ability of states to nullify laws with which they don't agree. That would abjure the 13th Amendment, the "supremacy clause", and possibly other portions of the Constitution. Suppose Alabama wanted to return to Jim Crow -- would that be any different than Colorado wanting to legalize marijuana, from a legal standpoint?
Yes, from a moral standpoint, one states is expanding people's freedom and another would be restricting them, but in both cases, they'd simply be saying, "this portion of federal law doesn't apply here."

 

[worldlymrb]

can states then cherry-pick among the federal laws that they want to obey?

Why not? The current usurper in the WH cherry picks which federal laws he wants to enforce (immigration), and then enforces faux laws (Executive Orders), which even congress is banned from seeing (cyber-security/gun laws).

State nullification is a great equalizer against a bankrupt central govt gone wild.

 

[NightSwimmer]

The "significant harm," if any, would be the ability of states to nullify laws with which they don't agree. That would abjure the 13th Amendment, the "supremacy clause", and possibly other portions of the Constitution. Suppose Alabama wanted to return to Jim Crow -- would that be any different than Colorado wanting to legalize marijuana, from a legal standpoint?
Yes, from a moral standpoint, one states is expanding people's freedom and another would be restricting them, but in both cases, they'd simply be saying, "this portion of federal law doesn't apply here."

That would be a decision for whomever controls the executive branch during the time at which such a hypothetical challenge to federal law occurred. The Obama administration could have already overridden marijuana legalization if they desired to do so. The Constitutional law is clear. Their inaction tells me that they do not strongly support the federal prohibition on marijuana and see no significant jeopardy in allowing the states to mount this nullification protest.

 

[worldlymrb]

The "significant harm," if any, would be the ability of states to nullify laws with which they don't agree. That would abjure the 13th Amendment, the "supremacy clause", and possibly other portions of the Constitution. Suppose Alabama wanted to return to Jim Crow -- would that be any different than Colorado wanting to legalize marijuana, from a legal standpoint?
Yes, from a moral standpoint, one states is expanding people's freedom and another would be restricting them, but in both cases, they'd simply be saying, "this portion of federal law doesn't apply here."

Which would be more likely, a state returning to Jim Crow, or a state banning your right to bear arms, free speech and having checkpoints demanding to search your papers/possesions at the will of the state?

 

[GordonGecko]

Let's see.....CO nullfies the laws against marijuana, you pretty much get the same or a tad higher folks getting stoned.

Oklahoma nullifies the laws against machine guns....and they get a Newtown a week.


In all seriousness, trapdoor trying to make an analogy of "legalizing pot" is "the same as" Alabama bringing back Jim Crow, comes off as a Social Con who still believes in the old Jack Webb "Dragnet" world where smoking marijuana leads to heroin use and people being "so stoned they let their babies drown in the bathtub" (an actual anti-pot episode of the old cop show).

 

[GordonGecko]

Which would be more likely, a state returning to Jim Crow, or a state banning your right to bear arms, free speech and having checkpoints demanding to search your papers/possesions at the will of the state?

Given recent Republican attempts to oppress minority voting ....I'd say the former.

 

[trapdoor]

Let's see.....CO nullfies the laws against marijuana, you pretty much get the same or a tad higher folks getting stoned.

Oklahoma nullifies the laws against machine guns....and they get a Newtown a week.


In all sereiousness, trapdoor trying to make an analogy of "legalizing pot" is "the same as" Alabama bringing back Jim Crow, comes off as a Social Con who still believes in the old Jack Webb "Dragnet" world where smoking marijuana leads to heroin use and people being "so stoned they let their babies drown in the bathtub" (an actual anti-pot episode of the old cop show).

No -- I am very much in favor of marijuana legalization at all levels, in all states. I'm merely examining the departure by two states from federal law from a legal standpoint.

 

[trapdoor]

That would be a decision for whomever controls the executive branch during the time at which such a hypothetical challenge to federal law occurred. The Obama administration could have already overridden marijuana legalization if they desired to do so. The Constitutional law is clear. Their inaction tells me that they do not strongly support the federal prohibition on marijuana and see no significant jeopardy in allowing the states to mount this nullification protest.

Yes, but that leaves the legal question intact. If these states can nullify these laws, can other states nullify other laws? I mentioned the NFA 1935 above, because one state (it's either Wyoming or Montana, I think the latter), has employed exactly this strategy, saying federal gun legislation does not apply to firearms made and sold in that state to citizens of the state (making it a state-internal matter and not subject to regulation as interstate commerce).

 

[SW48]

Ok, clue me in. Is legalizing marijuana a partisan political issue or do people actually think for themselves on this issue?

 

[NightSwimmer]

Yes, but that leaves the legal question intact. If these states can nullify these laws, can other states nullify other laws? I mentioned the NFA 1935 above, because one state (it's either Wyoming or Montana, I think the latter), has employed exactly this strategy, saying federal gun legislation does not apply to firearms made and sold in that state to citizens of the state (making it a state-internal matter and not subject to regulation as interstate commerce).

Any state is free to pass laws that are unconstitutional at any time, just as anyone can file a lawsuit for any reason. It is what happens afterward that is legally significant.

 

[NightSwimmer]

Ok, clue me in. Is legalizing marijuana a partisan political issue or do people actually think for themselves on this issue?

From what I have observed, opposition to marijuana prohibition enjoys bipartisan support. The only reason that people don't publicly oppose marijuana prohibition is that they are afraid of being targeted and hounded by drug task force police officers and arrested for marijuana possession. While the fine for simple possession in most states is not so great, many people would lose their jobs if they were charged with a drug offense.

I think that secret users of marijuana are the new Silent Majority in America.

 

[trapdoor]

Any state is free to pass laws that are unconstitutional at any time, just as anyone can file a lawsuit for any reason. It is what happens afterward that is legally significant.

Which is my point exactly. Non-prosecution by the administration of states like Colorado and Washington could lead other states to take extra-federal (to coin a term) action in other areas. Something is either legal or illegal, constitutional or unconstitutional -- it can't be both.

 

[worldlymrb]

Which is my point exactly. Non-prosecution by the administration of states like Colorado and Washington could lead other states to take extra-federal (to coin a term) action in other areas. Something is either legal or illegal, constitutional or unconstitutional -- it can't be both.

Federal govt is outside it's constitutional authority to regulate narcotic trade inside a state. However, the commerce clause would allow the central govt to regulate narcotic trade between state borders.

At least that was the original intent of our founders whom our current pious federal govt has branded extremist.

 

[NightSwimmer]

Which is my point exactly. Non-prosecution by the administration of states like Colorado and Washington could lead other states to take extra-federal (to coin a term) action in other areas. Something is either legal or illegal, constitutional or unconstitutional -- it can't be both.

No, it can't. The executive branch, however, does have some discretion regarding prosecution. There are all sorts of obsolete laws at all levels of government that are not currently enforced. The marijuana legalization in Washington and Colorado are undoubtedly unconstitutional. So are the medical marijuana laws in various states. The Obama administration is currently neglecting to enforce the federal laws, but they certainly could if they chose to. Perhaps the next administration will. Perhaps not.

 

[trapdoor]

No, it can't. The executive branch, however, does have some discretion regarding prosecution. There are all sorts of obsolete laws at all levels of government that are not currently enforced. The marijuana legalization in Washington and Colorado are undoubtedly unconstitutional. So are the medical marijuana laws in various states. The Obama administration is currently neglecting to enforce the federal laws, but they certainly could if they chose to. Perhaps the next administration will. Perhaps not.

I agree that prosecutorial discretion is in the executive branch toolbox -- but as a matter of realpolitik, other states are going to point to the CO/WA example if their moves are challenged. I guess, bottom line, the question remains -- what are states' authorities under states rights?

 

[NightSwimmer]

I agree that prosecutorial discretion is in the executive branch toolbox -- but as a matter of realpolitik, other states are going to point to the CO/WA example if their moves are challenged. I guess, bottom line, the question remains -- what are states' authorities under states rights?

Not much of a question there. The federal government is a superior authority to any state government. We aren't a loose coalition of nation-states. We are a nation.