By Dustin Hurst | Watchdog.org
HELENA, Mont. — Politics makes strange bedfellows, alright.
Who would have ever guessed the tea party patriots, you know, the old folks strutting around in American flag apparel and tri-cornered hats, might — at least symbolically — link arms with a bunch of dope-smoking lefties and Libertarians?
Yet, staring down an ominous and likely unfriendly federal government, advocates for marijuana legalization in Washington state and Colorado may soon travel down a path already carved by the nation’s right-wing — fighting back against overly intrusive federal rules and regulations.
At the polls on Nov. 6, voters in those two states made history, voting to legalize marijuana for recreational use. Coloradoans voted 53 percent to 47 percent to legalize the sticky icky, while Washington’s measure grabbed a little more than 55 percent of the vote tally.
Washingtonians can light up legally Dec. 6, while Colorado residents have to wait another month.
On those respective dates, those two states, according to their own laws and regulations, will have effectively legalized marijuana for any use.
But eager smokers shouldn’t hit the bong just yet. As Colorado Gov. John Hickenlooper succinctly stated, “federal law still says marijuana is an illegal drug, so don’t break out the Cheetos or Gold Fish too quickly.”
Colorado Taco Bell locations, too, might sag after Hickenlooper’s hazy warning.
Federal law — more specifically, the Controlled Substances Act — outlaws marijuana nationwide, a final blockade for legalization advocates. When federal and state laws conflict, federal law trumps everything, or so says Article VI, Section 2 of the U.S. Constitution, known as the Supremacy Clause.
“It’s a federalism issue,” Colorado’s Larimer County District Attorney-elect Cliff Riedel told the USA Today recently. “I’m assuming that, in essence, you can’t have a state legalize something that the feds say is illegal.”
It’s not an unfamiliar scrum for some of the nation’s staunchest proponents of states’ rights.
Look at the work of Idaho’s Wayne Hoffman, executive director of the Idaho Freedom Foundation, a free-market think tank based in Boise. In 2010 and again in 2011, Hoffman led the charge against the state participating in any element of the federal health care reform law.
Hoffman persuaded Idaho lawmakers in 2010 to sue over the individual mandate in the health care law, the provision forcing Americans to purchase health insurance or pay a penalty. Idaho lawmakers passed the Idaho Health Freedom Act, which warned that the state wouldn’t stand for the federal government forcing residents to purchase health insurance.
Idaho lawmakers contended that the mandate violated the 10th Amendment to the U.S. Constitution, which they believed left health care to the states.
The Colorado and Washington situations nearly mirror what Hoffman sought in Idaho. Pot legalization advocates want the federal government to stand down on any enforcement attempts and respect the two states’ right to govern and decide their own laws.
No one really knows how the federal government might react, though. The U.S. Department of Justice, under Attorney General Eric Holder‘s studious leadership, could launch a legal battle to force the states to re-implement marijuana bans. If the feds engage in their own enforcement, proponents might wield their own court challenge in a bid to soften federal code pertaining to marijuana.
Either way, legalization advocates in these two states stand at the ready for a protracted battle over the right of states’ self-determination.
Hoffman and other states’ rights champions delightedly gaze as progressives conspicuously use 10th Amendment arguments to make their case, at least in the media — for now. Hoffman said he sees an opportunity to imbue the nation’s left-bank with a belief that states’ rights matter for marijuana and myriad other issues.
“States have the ability to govern and that’s what they are doing,” Hoffman told Watchdog.org on Tuesday.
Additionally, Hoffman said a hardy fight against the feds might just be what the country’s left-wing needs.
“I’m glad there’s some vehicle for giving our perspective of the role of the state governments under the U.S. Constitution,” he said.
Other free-market folks see the door opening to a reinvigorated federalist movement.
Jon Caldara, president of the Denver-based Independence Institute, wrote a few days ago that the marijuana legalization rumble could serve as a teaching moment for the progressive left.
“This is a massive opportunity for those of us who fear the growing central authority in D.C. Some portion of the Left will now agree with us” Caldara jubilantly penned on Nov. 21. “We need to embrace this challenge and take a lead in educating Coloradans about the Tenth Amendment before the Left tries to pervert it somehow.”
Caldara, Colorado’s version of Hoffman, says progressives must follow federalist principles in seeking their desired outcome.
“In order for those who support pot to keep in legal in Colorado, they MUST embrace the Founders’ ideal of Federalism,” he blogged. “And I believe we need to help them understand the power of this simple ideal, and why it applies to a whole lot more than weed.”
But, the welcoming advances from the liberty-seekers might fall on deaf ears beyond marijuana legalization efforts.
Sure, a number of opportunistic members of Congress seized on the issue and pitched a bill to allow Washington and Colorado to serve as laboratories of democracy where drug policy is concerned, but they might easily cast other states’ rights issues by the wayside.
Like health care.
Take California Democratic U.S. Rep. Sam Farr, for example. He signed on to the Respect States’ and Citizens Rights Act earlier this month. That bill would block the federal government from enforcing marijuana laws in Colorado or Washington — and any other state that legalizes the green stuff.
Farr jumped all over the bill, seeing it as a route to find amicable understanding between states and the feds over the use of medicinal marijuana in California. His quote in a news release about the legislation sounds like a statement born at a right-wing think tank.
“The federal government’s failure to develop a reasonable approach towards the varying state marijuana use laws has made this legislation necessary,” Farr wrote on Nov. 16. “From increased raids on legal dispensaries to denying defendants in court the right to present evidence of their legal marijuana use, the federal government has chosen to trample on states’ rights rather than work with them as a partner to address this issue.”
Farr supports the right of states to craft their own marijuana laws, but what about efforts to invalidate the individual mandate in the national health reform act?
“No, he would not,” Farr’s spokesman, Adam Russell, told Watchdog.org on Wednesday. “He’s been a supporter of the ACA.”
What gives? Why does the congressman support a Coloradoan’s right to puff a joint, but not an Idahoan’s right to decide if he wants to purchase a private service?
It’s all about the ripple effects in the medical marketplace, Russell said . When a person dances with the Mary Jane, it’s a victimless circumstance, affecting only the smoker’s life. If a person foregoes health insurance, he might end up in a hospital someday and the bill could land in taxpayers’ laps.
While the left-leaners in the scuffle might prove too ideologically rigid to lend their support to other federalist issues, a handful of freedom-fighters warn that conservatives should throw out concern over specific policies in favor of a state’s ability to self-determine.
“It’s not about weed, but about consistency,” penned Watchdog.org’s own Steve Greenhut last week. “States’ rights means states’ rights, not states’ rights when we agree with the policies that independent states embrace.”
The Olympia, Wash.-based Freedom Foundation didn’t take a position on its state’s legalization movement, but will now support — at least in spirit and possibly through defensive litigation — the new marijuana law.
David Roland, an analyst with the group, envisions, like so many others, a “unique opportunity” to teach Americans that governing closer to home always brings about preeminent results.
“A lot of these decisions should be made closer to home,” Roland said, adding that federalists should use the unpopularity of Congress — now polling in single digits — to forward their movement. “People are not happy with what’s happening in Washington, D.C.”
Roland, like Greenhut, warns that conservatives must abandon reservations about weed legalization or risk appearing like opportunistic and hypocritical politicians.
“They take inconsistent positions because it’s politically expedient to do so,” Roland said of lawmakers who support states’ rights in the weed fight, but not the health care arena.
If federalist of all stripes can subdue their feelings on certain policies, greater freedoms for all can ensue, Greenhut argued.
“The best news isn’t that pot will be legal in two states, but that the legalization victories could point the way to a broader, pro-freedom movement,” he wrote.
Contact Dustin Hurst at [email protected] or @DustinHurst via Twitter.
— Edited by Kelly Carson, [email protected]