Nullification — a state’s ability to selectively enforce federal laws — doesn’t work. Just look at its track record: from trade agreements to abolition to gun control, states have asserted their supposed power to nullify Washington’s decrees based on their own understanding of their constitutionality – and been met with a federal rebuff every time. Yet even with its historical lack of success, and corresponding reputation as a fringe argument, nullification has a surprising longevity. Today’s quixotic Republican governors continue its tradition by threatening to block enforcement of Obamacare and gun control executive orders, despite every indication that the crisis will play out exactly like it has dozens of times before.
But some conservatives believe that all that could soon change. Another nullification crisis quietly reached its boiling point last November as Colorado and Washington passed laws legalizing marijuana in defiance of the federal Controlled Substances Act. Pot legalization certainly stands out in a lineup of states’ rights causes that also includes slavery and school segregation, but the concept remains the same: states do not have to abide by federal laws that are perceived as unconstitutional by their population. It’s an inherently conservative concept, but it’s still surprising to see the sudden uptick in support of a traditionally liberal cause from a party that has demonized pot for decades.
Over the past several years, the issue of drug laws highlighted a split in the Republican party between Christian conservatives and civil libertarians. The most prominent Supreme Court challenge to federal marijuana prohibition, 2005’s Gonzalez v. Raich, ended with a bizarre coalition of liberal, moderate, and conservative justices upholding the federal law; it was a rare decision that found notorious originalists Antonin Scalia and Clarence Thomas on opposite sides of the ruling. But today’s conservative movement seems to have reconciled this dissonance: a recent CBS poll shows that, while Republicans disagree with legalization by a two-to-one margin, the same proportion believes that the states, not the federal government, should be the ones making that decision.
The conservative embrace of this federalist argument regarding drug laws was predicted by Justice Sandra Day O’Connor’s dissent in the Raich case. She notes that she would not personally support such a prohibition, but quotes Justice Louis Brandeis in encouraging the individual state to, “if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” This is the crux of the states’ rights position, and it’s why nullification’s supporters are taking on marijuana legalization, a cause with steadily increasing national support, as a much more palatable flagship cause for their movement.
With a coalition of progressives and libertarians supporting state-by-state marijuana legislation, President Obama and Attorney General Eric Holder have a problem. Legalization at the state level has much more support than, say, nullifying Obamacare — the Washington and Colorado measures both passed by a margin of ten percent. And the fact that popular referendums are already on the books in those states puts the ball firmly in the feds’ court. Obama and Holder have already received flak for ordering crackdowns on medical pot dispensaries in California; their response to full-scale legalization has been understandably slow. Josh Harkinson at Mother Jones writes that Holder is between a rock and a hard place: cracking down further will draw the ire of drug rights activists, while caving will cause the GOP to “call for his hide.”
Frankly, I’m not convinced that that would be the case. Whatever their personal views on marijuana use, most on the right have an ulterior motive for supporting legalization. Almost without exception, conservative bloggers refer to the movement to nullify federal drug laws in terms of setting precedent for future nullification. Fittingly, they see the marijuana issue as a gateway drug, a benign introduction to nullification that will inure supporters to the concept and make it more likely for them to accept future, more obstructionist iterations. And precedent is not a gradual process — all it takes is one instance of federal caving to set legal precedent. It’s not a slippery slope, but a cliff face.
Should we go over that cliff, though, there may be a branch to grab on the way down. Traditionally, nullification has been an immediate reaction to new federal actions enacted by democratically-elected legislators or executives. The feds, justifiably, have little sympathy for the complainants in these situations, since they have the recourse of voting out their representatives as soon as their next election. The Controlled Substances Act, on the other hand, is over 40 years old, and was enacted by the representatives of a previous generation. It’s reasonable to make a distinction between nullifying old and new laws, since public opinion may have changed since the former were codified.
But no believer in a federalist system of government should feel comfortable with such a fine distinction standing in the way of a torrent of state-level disregard for federal laws. There is a system in place for nullifying laws — through a state’s petition to the Supreme Court, or through the people electing new representatives and repealing a law democratically. When Justice O’Connor expressed her opinion that federal marijuana prohibition fell outside the authority of Congress, she did so with the unique authority of someone whose job it is to make such determinations. By subverting, or even supplanting, this constitutional authority, governors of the fifty “laboratories” of democracy become mad scientists that undermine federally-crafted laws in favor of their own creations.
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