10th Amendment

States Force Feds into a Game of Chicken and Win


Those dismissive of the possibility of nullification being an effective tool in fighting back against an overreaching federal government should take note of a recent move by the U.S. Justice Department. Last week Attorney General Eric Holder told the governors of Colorado and Washington that the Justice Department would allow their laws to go into effect that legalized the use of marijuana by adults.

The Justice Department issued a memo to U.S. Attorneys which basically says that the federal government would not interfere so long as states “establish strict regulatory schemes that protect the eight federal interests identified in the Department’s guidance.” Those eight federal interests are the following:

  • Preventing the distribution of marijuana to minors;
  • Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels;
  • Preventing the diversion of marijuana from states where it is legal under state law in some form to other states;
  • Preventing state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity;
  • Preventing violence and the use of firearms in the cultivation and distribution of marijuana;
  • Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use;
  • Preventing the growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands; and
  • Preventing marijuana possession or use on federal property.

The Justice Department has effectively backed down from the game of “chicken” created by states passing laws that conflict with previous federal law. 21 states have enacted laws that, to varying degrees, legalize the possession and use of  cannabis. This is another important example of a large number of states being successful in rejecting unconstitutional federal law.

Of course, while the federal government backing down is a welcome development, they continue to claim that they have the authority to establish their laws at all. Thus, their backing down is portrayed by them as a concession and permission given, as opposed to a recognition of individual rights or constitutional restraint. Still, while the feds incorrectly claim that they have and are not exercising their power, the fact that federal agents will be leaving more people alone is a positive step—and one which came about only because of nullification.

This kind of victory for state sovereignty can happen in other areas as well. As Thomas Jefferson stated, “nullification, by [the states], of all unauthorized acts [by the federal government]… is the rightful remedy.” We look forward to other battles where several states can unite against the federal government’s wrongful usurpation of power.

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