Marijuana, State’s Rights, and Rule of Law
On September 24, 1957, President Eisenhower ordered the 101st Airborne Division of the United States Army to Little Rock and federalized the entire 10,000-member Arkansas National Guard in order to enforce the Supreme Court’s desegregation order after the decision in Brown v. Board of Education held that segregated schools were unconstitutional.
On January 1, 2014, drug dealers in Colorado opened brick and mortar pot shops to openly sell a Schedule I controlled substance in defiance of federal law. They did so, confident that they would face no opposition from federal law enforcement because Attorney General Eric Holder issued a memo stating that closing down recreational marijuana stores would not be a priority.
This decision by the executive branch to ignore federal law can be added to a long list of lawless decisions of the Obama administration from refusing to deport a certain class of illegal aliens to refusing to enforce provisions of the ACA which the administration finds politically inconvenient.
The administration’s decision to turn a blind eye to Colorado’s blatant violation of the Constitution’s Supremacy Clause is not surprising given its other options. There were two legitimate courses of action open to the feds: either do what Eisenhower did and send in federal marshals or the US Army to kick down doors, confiscate inventory, and lock up Colorado’s “green entrepreneurs;” or, order the DEA and FDA to remove cannabis from the Schedule I category of the Drug Abuse Prevention and Control Act.
Neither of these options were politically palatable. If Obama fulfilled his obligation to enforce federal law, he would have alienated young voters who helped elect him and for whom legalization is popular. Additionally, sending in armed troops to thwart the will of the people of Colorado would have made for bad optics on the nightly news and would have given more ammunition to vocal critics of a heavy-handed federal government. If, on the other hand, Obama ended the federal ban on cannabis, he would forever be known as “President Choom Gang” and have reinforced the image of his administration as unserious amateurs intent on reshaping America into a hippy dream land.
The implications of this decision are far-reaching, yet thus far obscured by a haze of Doritos jokes in the national media. Essentially, Colorado has called D.C.’s bluff and showed the rest of the country that the feds don’t have as good a hand as they would have us believe. This has massive implications for federalism, state’s rights and the rule of law. If the executive lacks the guts to enforce the supremacy clause, what is to stop states from simply going their own way on all sorts of other issues ranging from firearms regulation to immigration to abortion restrictions to environmental standards?
Another question that the anti-legalization advocates must ask is: what do they expect the next administration to do? Whoever is elected will face the same options Obama had but the marijuana industry will have had three years to entrench itself, making a federal crack-down that much more distasteful.
This weakening of federal power might seem a positive development to conservatives who value local control and yearn for a 10th Amendment revival of state’s rights. But it should worry even the staunchest believer in decentralization that this is occurring in a chaotic, ad hoc manner with states simply acting in defiance of the supremacy clause and daring the feds to do anything about it.
If Eisenhower had backed down in 1957, it would have signaled to the southern states that the federal government was not serious about desegregation and could have led to a much more prolonged struggle for civil rights or even a constitutional crisis of insurmountable magnitude. I predict that the effects of Obama’s cowardice will be felt long after his administration is replaced.