State and Local Nullification Drives Change in D.C.
I frequently say “Washington D.C. will never fix America’s problems. Washington D.C. is America’s problem!”
People often take that to mean I don’t think we can fix America’s problems. That’s not the case. I just believe that instead of focusing on D.C., we need to start with change at the local and state level. From there, it will filter up to Washington D.C.
We’re beginning to see this strategy pay off when it comes to marijuana policy. After more than two decades of state, local and individual nullification, the federal government’s unconstitutional prohibition of cannabis is beginning to come apart at the seams.
Despite ongoing attempts to enforce federal prohibition, 21 states and Washington D.C. have legalized marijuana for medical use, and 14 states and D.C. have decriminalized marijuana possession. Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, Vermont and Washington State have all legalized marijuana for recreational use.
Recent FBI statistics show that as many as 99 of 100 marijuana arrests happen under state and not federal law. When states remove their laws, it eliminates the basis for 99 percent of marijuana arrests. This reality has made it nearly impossible for the federal government to enforce prohibition. It simply doesn’t have the manpower or resources when states refuse to cooperate.
State, local and individual actions are effectively nullifying federal law and have been for years.
When D.C. politicians start jumping the fence and taking the other side of an issue, change is in the air. And that’s exactly what we’re seeing in the realm of marijuana policy. Dedicated drug warriors have suddenly become outspoken weed advocates.
For instance, former Republican Speaker of the House John Boehner recently reversed course and embraced pot. In a tweet last month, Boehner said, “my thinking on cannabis has evolved.”
In fact, it evolved so much that Boehner joined the board of advisors of Acreage Holdings, “an investment company with an established footprint in the cannabis industry” currently operating in 11 states. That’s quite a turnaround for a man who just seven years ago said he was “unalterably opposed” to marijuana legalization.
Flipflopping positions on marijuana aren’t exclusive to the Republican Party. On 4/20, Democrat Senate Minority Leader Chuck Schumer introduced a plan to decriminalize marijuana at the federal level. According to CNBC, Schumer will introduce a bill “to pull marijuana from the federal list of controlled substances, aiming to effectively reduce punishments related to the drug and encourage more efforts to legalize it at the state level. The legislation would not stop federal law enforcement from stopping the movement of marijuana between states where it is legal and areas where it is not.”
Schumer’s shift isn’t as striking as Boehner’s, but it was a shift none-the-less. Although the New York Democrat has supported medical marijuana and even state legalization, he opposed changing federal law. In fact, Schumer was honored as a “Guardian of a Drug-Free America” by the Partnership for a Drug-Free America in 2004.
“My thinking — as well as the general population’s views — on the issue has evolved, and so I believe there’s no better time than the present to get this done. It’s simply the right thing to do,” Schumer said.
An evolution in thinking certainly created an environment ripe for changing federal marijuana policy in Washington D.C, but there’s more to it than that. The winds of change started blowing more than two decades ago when Californians took concrete action and legalized medical marijuana despite federal prohibition. In ensuing years, the movement grew at the state and local level to the point that the Schumers and Boehners of the world simply couldn’t ignore it anymore. The federal government cannot stand up against this tidal wave. As a result, we’re beginning to see changes in federal law itself.
In 2014, Congress placed a provision in the Consolidated Appropriations Act providing that “[n]one of the funds made available … to the Department of Justice may be used … to prevent [various] States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.”
In August 2016, the Ninth Circuit Court of Appeals held that federal judges should uphold this provision in the appropriations act by halting prosecutions of people using marijuana legally based on their state’s laws. In simple terms, Congress has effectively prohibited federal prosecution of marijuana users whose actions comply with all relevant state medical marijuana laws – despite the blanket federal prohibition of marijuana.
We’ve also seen moves on Capitol Hill to further relax federal law relating to medical marijuana. Last March, Rep. Earl Blumenauer (D-Ore.) introduced the Veterans Equal Access Act. The legislation would authorize VA physicians and other healthcare providers to offer recommendations and opinions regarding the use of medical marijuana to veterans who live in medical marijuana states. The VA currently prohibits any recommendations relating to medicinal cannabis in conformity with federal law.
And now we have Schumer’s proposal to remove cannabis from the list of controlled substances.
Granted, these are mere cracks in the dam. Federal marijuana prohibition remains firmly in place – at least in theory. But these cracks show a shift in federal policy – a shift that would have never been possible without the state action that preceded it. It’s only a matter of time before the dam completely crumbles.
This confirms the power of a state, local, and even individual nullification strategies. State and local actions bubble up through the political system. Congress would have never acted if states hadn’t taken action first. It was California’s willingness to simply ignore the federal law in 1996 and go its own way that set all of this in motion. It was other states following California’s lead until more than half of them had legalized medicinal cannabis that made congressional action happen.
Most importantly, it was the will of the people that drove this change. People demanded marijuana legalization and supported the idea by simply ignoring the law long before there was any legislative action.
The lesson: you are far more likely to change D.C. by changing Sacramento, or Baton Rouge or Albany than you are by direct action inside the Beltway. As the saying goes,”The proof is in the pudding.”