Today three senators are planning to introduce a Senate Bill that could have a major effect on the Federal-State relationship. The bill seems innocuous enough at first glance, Rand Paul along with Corey Booker and Kirsten Gillibrand want to prevent Federal officers from prosecuting marijuana users in states where it has been legalized.
This bill could have more importance, legally, beyond the realm of either medical or recreational marijuana use because it reasserts the right of state law to trump federal law in the United States. Many laws in the Anglo-American world are set on precedent, once it happens once – such as with this law – others may follow. In short, this brings back to the fore the 10th Amendment, which is rarely invoked against federal law, but reads:
‘The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.’
The Current Situation
Currently, 23 states have passed laws by popular mandate – as voted by its citizens during an election/referendum – to legalize medical marijuana. Two further states have legalized recreational marijuana use. However, due to international treaties and laws on drug use, federal law still makes the use of and selling of marijuana illegal.
The consequence is two-fold. Firstly, people who smoke pot for medical reasons in the 23 states and those who use it recreationally in the two states are at risk of prosecution by federal agents if they do what state law allows. Thus far, prosecuting such people has not been on the federal agent agenda. Secondly, it makes it impossible for people who sell medicinal pot or recreational pot, where legal, to do so through bank accounts. The filing of federal taxes may also be difficult to say the least.
The bill’s passage is not guaranteed and it may be amended prior to passing through the Senate and being sign by the President. With that in mind it is impossible to guess how the law will work and how it will affect the state-federal relationship. If passed, it would give states primacy over an element of law – what drugs can and cannot be used or how they can be used. It suggests that such a change could lead to others.
There is a strong undercurrent in the Republican party to do the opposite of Rand Paul’s proposed bill. That would mean using federal law to go after marijuana users and sellers where it has been allowed under state law. That would be the opposite of a libertarian state arrangement, but consistent with centralized federal law. It would also need bipartisan help from the Democrats to get through. It is possible, therefore, that the bill is a gambit by Ron Paul to put his name out there to get the libertarian vote in the upcoming race to be nominated as a presidential candidate. However, if it is genuine, it could be an interesting rediscovery of the 10th amendment and a step back from federal control.