Federalism is the idea that any powers not specifically granted by the Constitution to the federal government are reserved for the states. This week, that idea will be put to the test when the House of Representatives votes on an amendment to bar the Justice Department from prosecuting marijuana sellers in states that have allowed the practice.
The bipartisan push by Reps. Tom McClintock (R-Calif.) and Earl Blumenauer (D-Ore.) will test many Republicans’ claims that they are indeed federalists. Constitutional Law Professor Randy Barnett described the conundrum:
Some people are “fair weather federalists” who only assert the virtues of federalism when they lack the votes in Congress for the national policies they prefer. I think this is a mistake. The federalism of our constitutional order has yielded some enormous advantages for protecting the rights retained by the people. … If the federal government only has the power to provide for the common defense as well as to protect the free flow of commerce between states, along with a few other specific tasks, most of the laws affecting the liberties of the people will be made at the state level. This would include the regulation of most economic activity as well as what are today called “social issues.”The legislation in question is titled “Strengthening the Tenth Amendment Through Entrusting States,“ or the “STATES Act.” Sponsors include Sens. Cory Gardner (R-Colo.) and Elizabeth Warren (D-Mass.), as well as Reps. David Joyce (R-Ohio) and Earl Blumenauer (D-Ore.).
That bill permits states to determine the best approach to cannabis regulation within states, territories and the District of Columbia. It does not completely resolve the conflict of laws between states and the federal government’s Controlled Substances Act (CSA), which federally prohibits any marijuana use and production, but it will yield federal enforcement if a state has passed some level of cannabis legalization.
A bipartisan group of 12 governors led by Republican Massachusetts Gov. Charlie Baker and Democratic California Gov. Gavin Newsom are supporting the STATES Act. It’s a strong show of support by leaders in states for this idea in federalism. The upcoming vote on the McClintock amendment will show Members of Congress’ commitment to the idea of federalism.
Consistent with federalism, police power related to the regulation of marijuana laws should reside with states. This vote will be a test of congressional support for federalism, and it’s one of the few votes in this Congress where a bipartisan group might be able to push some good policy.
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