The Latest Fight Over Federalism

Brian Darling,

A true test for liberty minded politicians is facing them this Congress.  The idea of federalism as it applies to medical marijuana laws in the states.  The self-proclaimed champions of federalism will have their commitment to the idea tested when they are called on to vote on a measure protecting federalism as part of the appropriations process this fall.

There is bipartisan support for the idea of federalism. On May 18, 2017, Speaker of the House Paul Ryan (R-WI) and Democratic Leader Nancy Pelosi (D-CA) put out a press release that committed the chamber to the idea of federalism:

Federalism is not a Republican or Democrat principle, but an American principle—and one that is integral to a thriving culture and economy. But in recent years, the principle of federalism has been slowly chipped away at by an overzealous federal government.

The official stance of the party is strong on federalism. The Republican Party platform says the following about federalism:

Federalism is a cornerstone of our constitutional system. Every violation of state sovereignty by federal officials is not merely a transgression of one unit of government against another; it is an assault on the liberties of individual Americans. Hence the promise of the Tenth Amendment: “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 Constitution gives the federal government very few powers, and they are specifically enumerated.

The idea of federalism is that the people retain authority to govern themselves and any power that is not specifically granted to the federal government is retained by the people.

Medical marijuana laws seem to fit also into this category and it will be interesting to see how Congress deals with the most recent controversy and conflict between federal law and state law.

Keeping promises made to the American people is also important. Candidate Donald Trump made a solemn promise to the voters that he would “make medical marijuana widely available to patients, and allow states to decide if they want to fully legalize pot or not.”  That promise has already been violated by his own Attorney General Jeff Sessions who sent a letter to Congress on May 1, 2022 demanding they not include a provision that has been in appropriations bills since 2014 that defunds the Justice Department prosecution of states that have allowed the use of medical marijuana.

Current law defunds any federal efforts to prosecute states that allow medical marijuana. On May 30, 2014, an amendment to the Commerce, Justice, Science (CJS) Appropriations Bill for FY 2015 was offered by Reps. Dana Rohrabacher (R-CA) and Sam Farr (D-CA) to defund the Justice Department authority to prosecute individuals or take actions against states that have allowed medical marijuana to be legally distributed within the state.  That amendment passed the House on a 219-189 vote with 49 Republicans supporting the amendment.  The amendment listed 31 states and the District of Columbia that, in some form, allow the use of medical marijuana. Sens. Rand Paul (R-KY) and Corey Booker (D-NJ) introduced that amendment in the Senate where there was never a vote scheduled. The amendment became part of the bill and was signed into law by President Obama.  

In 2015, another roll call vote was conducted in the House and Republican support increased to 67 members.  This provision has remained part of continuing appropriations and is currently in law, yet President Trump issued a signing statement on the latest funding measure that indicated he might ignore that provision – thereby violating a Trump campaign pledge.

It appears that Congress will have a vote this fall on another version of that popular amendment. Rep. Rohrabacher has teamed up with Rep. Earl Blumenauer (D-OR) to push an amendment in this Congress.  The CJS appropriations bill for FY2018 was voted out of a house committee this past week and it does not yet contain the Rohrabacher-Blumenauer funding rider.

There are other measures that promote federalism in marijuana laws, yet they have little chance of passing this Congress. The L.A. Daily News, in an Op Ed dated June 19, 2022 cited a Booker-Paul CARERS Act that would change federal law permanently to allow medical marijuana in the states and a bill introduced by Reps. Tulsi Gabbard (D-HI) and Tom Garrett (R-VA) to remove marijuana from the Controlled Substance Act.

The test is coming soon to see if the bold promises by liberty minded Members of Congress are truly committed to the idea of federalism when they vote on the Rohrabacher-Blumenauer Amendment – or is the idea of federalism merely a campaign talking point many use to get elected.