Thursday, October 08, 2009

Federalism Clash Coming in California

Yeah, California. The issue is not economic stimulus funds or intrusions by the federal govenrment into traditionally state functions like education or local police. Nope, it is about dope.

Efforts are underway in California to put three marijuana legalization measures on the ballot next year.If any one passes, it could set up a clash between a state's right to regulate the health and welfare of it citizens against federal drug policy.

Despite his othewise liberal views, President Obama has stated that he is opposed to the legalization of marijuana. So here comes the clash.

As the federal government has expanded its reach into more and more areas of policy that traditionally have been the purview of the states, battles over the proper role and relationship between state and federal government have been brewing. It has taken some time for such a battle to come to the fore and it seems odd that legal marijuana could result in a Supreme Court battle that will test the Court's stance on federalism in a real and direct way.

Now, just because the issue is on the ballot does not mean it will pass and there may very well be a majority of Californians opposed to the legalization of marijuana and so that ballot iniatives will die in the election. But this could be a long term battle for proponents and they don't mind the effort failing next year. I don't know the language of all the proposals, but I am sure that proponents are willing to have marijuana taxed in much the same way as alcohol and tobacco are taxed--which will generate millions of dollars in tax revenues for the state, which is not an idle consideration for California. I also think that the state will continue to allow employers to conduct drug testing to make sure their employees are not high on the job.

But suppose it does pass, what we will be facing is a real question as to teh efficacy and survival of the United States as a federal republic. Clearly the Obama Administration is in favor of centralizing more and more power in the federal government. But the Bush Administration (either one of them) cannot be called a states' rights Administration either. In fact, since the days of FDR, we haven't truly had a state's rights presidency. Even at best, Ronald Reagan probably didn't care so much one way or the other, his eyes were on other targets and reducing the size and impact of the federal government probably wasn't high on his priority list.

For a fairly logical discussion of the matter of federalism, allow me to suggest listening to Dan Carlin's Common Sense Podcast #160 which he titled Frozen Shoulder Federalism.

So the question that may be asked is where do I stand.

I don't favor the legalization of marijuana and if asked, I would not vote for the legalization of marijuana, even for medicinal purposes.

However, I firmly believe that states should have the right to make that decision for themselves. Just because my state has declared that marijuana should not be legal doesn't mean the citizens of another state can't make the opposite decision.

There are federal government considerations at stake here and I understand that. Concerns over drug trafficking are real and if California legalizes marijuana, how can the U.S. Government police the drug traffic flowing into other states. Well, I think there is a constitutional solution but it would also not only attack the concept of federalism, but would also alter the course commerce clause jurisprudence.

Under the Constitution, Congress has the right to regulate commerce among the states and the Indian tribes and with foreign nations. But what if California said that only marijuana certified as grown in California is sold in California? That is, by definition, no interstate commerce. The problem is that a long line of Supreme Court decisions, including crucial civil rights litigation, has said that if a local activity impacts, even in a small but significant way, interstate commerce, it can be regulated by the federal government. Thus, even if the dope grown and sold in California stays only in California, it could be considered as impacting interstate commerce if a resident of say, Nevada, crosses into California to buy marijuana. The act of a Nevada, or Oregon or Arizona or New York resident traveling into California and buying marijuana (even if they use the pot in California) is, almost by definition, interestate commerce. Doesn't that give Congress the right to regulate it?

There in lies the question.

Federalism may be seeing a resurgence and the legalization of marijuana may not be the ideal test case, but it may be the best one we have for a few more years.

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