By Michael Bielawski and Bruce Parker | Vermont Watchdog
MONTPELIER, Vt. – After passing marijuana legalization on Thursday, some Vermont senators denied they had just voted to nullify federal law.
Despite the ongoing push by states to legalize marijuana for medicinal and recreational purposes, the drug remains a Schedule I substance prohibited by the federal Controlled Substances Act of 1970.
That hasn’t stopped Vermont lawmakers from advancing S.241, a bill that would legalize recreational pot smoking and authorize the state to issue licenses to cannabis growers and retailers. When asked if passing the bill amounted to nullification of federal law, some senators said no.
“I don’t think so,” said state Sen. John Rodgers, D-Essex/Orleans. “Not with the Cole memo.”
Rodgers was referring to a 2013 memorandum the Obama Justice Department sent to states that had recently legalized marijuana. The memo, written by former U.S. Deputy Attorney General James Cole, says feds won’t raid states that allow “possession of small amounts of marijuana and provide for the regulation of marijuana production, processing, and sale.”
Concern about federal enforcement is legitimate. The Huffington Post reported that the Obama administration spends about $80 million annually fighting medical marijuana. However, as with other Obama administration efforts to bypass Congress or neuter federal law through non-enforcement, the Cole memo offers protection for states – at least until the next president takes office.
Rodgers isn’t too worried about what a President Trump or President Rubio might do.
“I think there’s always concern,” Rodgers said, “but clearly what they have been doing for the last 40 years hasn’t worked, so I think it’s time for the states to take the lead because the federal government isn’t going to act.”
State Sen. David Zuckerman, P/D-Chittenden, also expressed confidence in the Senate’s decision to legalize.
“I don’t think it’s a nullification of federal law. The federal government has indicated they will not be prosecuting under these circumstances through the Cole memo, just as they have done with Colorado. So, the federal law stays the same,” he said.
According to Michael Maharrey, national communications director of the Tenth Amendment Center, Vermont lawmakers are nullifying federal law but may not want to say so.
“When somebody tries to say, ‘We’ve got this memo and the federal government is not enforcing this law,’ they’re playing word games. The fact of the matter is the federal government officially still maintains absolute prohibition of marijuana. And when any state legalizes marijuana, they are in essence defying that federal ban.”
The Tenth Amendment Center tracks state governments that contradict federal law on a range of issues, from the National Defense Authorization Act and gun control to federal license plate tracking. Maharrey said while states aren’t technically striking down federal laws, their actions have the same effect.
“When we talk about nullification today, we’re talking about nullification in practice. That’s exactly what these marijuana laws at the state level are doing — they’re nullifying, in practice, federal prohibition. It’s not changing the law.”
Maharrey said the U.S. Drug Enforcement Administration could shut down dispensaries in Colorado and other states, but the federal government lacks the resources to do so.
“When you run the numbers, the amount of money it would take to shut down all the medical dispensaries in Denver would cost almost the entire DEA budget for a year. That’s one city in one state. The federal government does not have the resources or the personnel to enforce prohibition in states where it’s legal,” he said.
Presently, nearly all drug enforcement is carried out by state and local authorities. If states refuse to enforce federal drug law, the federal government has little capacity to do the job. In fact, due to the anti-commandeering doctrine upheld in Supreme Court cases like Printz v. United States (1997) and National Federation of Independent Business v. Sebelius (2012), the federal government can’t make states do its dirty work.
“That’s why the Obama administration has backed off of enforcement. Early in Obama’s administration, he actually tried to enforce drug laws at a higher level than Bush or Clinton before him. … When these states started legalizing it, they realized that there is no way the DEA could effectively enforce prohibition,” Maharrey said.
Zuckerman emphasized that it’s all on the feds if Vermont legalizes cannabis and a future administration changes course.
“If the federal government wanted to enforce federal law with federal dollars and federal agents, they certainly could do that,” he said.
However, state Sen. Diane Snelling, R-Chittenden, one of 12 lawmakers who voted against S.241, said she didn’t think Vermont has authority to act against federal law.
“No, I don’t think the states can nullify federal law,” she said, adding that the DEA might conduct raids in limited situations.
“It’s possible at some point that any person involved, even through a state approved plan, could be considered a drug dealer. This is why we’ve had such a problem with the cash business piece,” she said.
Maharrey said Vermont’s pro-legalization senators might not admit to nullification simply because the term carries negative connotations, due to its association with the Civil War and slavery. He said people today wrongly associate nullification with the Southern states.
“Unfortunately, this is a misunderstanding of history. … The truth of the matter is Northern states were the ones that were utilizing nullification. They were the ones using state sovereignty to block implementation of the Fugitive Slave Act.
“In fact, Vermont had one of the most aggressive personal liberty laws written. In the 1850s, they called any attempt to capture an escaped slave kidnapping. They declared (that) any black person in the state of Vermont was free, and any attempt to take them into custody and bring them back to the South was kidnapping — a blatant contradiction of federal law.”
Maharrey said Vermont’s pro-legalization senators are carrying on that legacy “but they don’t even realize it.”
S.241 has moved to the House Judiciary Committee, where it is expected to encounter greater resistance than in the Senate.
Contact Michael Bielawski at [email protected]