Academic journal article Case Western Reserve Law Review

Modern-Day Nullification: Marijuana and the Persistence of Federalism in an Age of Overlapping Regulatory Jurisdiction

Academic journal article Case Western Reserve Law Review

Modern-Day Nullification: Marijuana and the Persistence of Federalism in an Age of Overlapping Regulatory Jurisdiction

Article excerpt

CONTENTS  INTRODUCTION I.   COOPERATIVE FEDERALISM AND MARIJUANA LEGALIZATION II.  STATE SOVEREIGNTY IN THE AGE OF COOPERATIVE FEDERALISM      A. Separation vs. Checks and Balances      B. Of Servants and Sovereigns III. NULLIFICATION'S PROSPECTS      A. Federal Preemption of State Marijuana Laws      B. Other Applications? CONCLUSION 


In 1832, South Carolina's famous nullification ordinance declared that the federal tariffs of 1828 and 1832 were null and void within the boundaries of that state. (1) The ordinance, which built on a strong theory of state sovereignty advanced by John C. Calhoun, did not exactly prosper. President Andrew Jackson--like Calhoun, born in South Carolina--rejected nullification in principle, threatened to enforce the tariff by force, then undercut the state's practical position by introducing new legislation to radically lower that same tariff. (2) No other state joined South Carolina's protest, and, in fact, eight Southern state legislatures passed resolutions condemning the South Carolinians' action. (3) And if that denouement did not suffice to settle the question of whether a state may defy a valid federal law, well, there was also the "late unpleasantness" of 1861-65. (4)

Fast-forward, however, to November 2012, when the states of Colorado and Washington both voted to legalize recreational marijuana use--also in contravention of federal law and policy. (5) These states joined the District of Columbia and twenty other states that have legalized the drug for medicinal purposes. (6) California and Colorado--pioneers in legalizing medical and recreational marijuana use, respectively--have fared better than did South Carolina in the 1830s. Other states have followed their lead, prompting a national debate about marijuana use. Even the District of Columbia--a federal enclave governed by "federal" law--has defied Congress by legalizing recreational use. (7) And President Obama--rather than reprising Andrew Jackson's threat to "hang the first man of them [nullifiers resisting federal authority] I can get my hands on to the first tree I can find" (8)--has instructed his Departments of Justice and Treasury to accommodate these state departures from federal norms. (9)

Across a range of issues--including, for example, health insurance, (10) experimental medicines, (11) gun control, (12) sports gambling, (13) and immigration (14)--states are acting contrary to federal law policy. Unlike South Carolina's infamous ordinance, most of these instances of modern-day nullification may well be legal. They generally do not purport to alter the binding force of federal law, but they rely on the likelihood that, as a practical matter, federal authorities cannot enforce national law without the cooperation of state officials. (15) The history of marijuana legalization over the past decades suggests that, at least on some issues, contemporary nullification is a winning strategy.

This Article asks what modern-day nullification can tell us about the health and structure of contemporary federalism. Contemporary resistance to federal law is made possible by the structure of cooperative federalism, under which federal and state authorities share overlapping regulatory jurisdiction and state officials frequently participate in the implementation and enforcement of federal regulatory schemes. (16) This interdependent relationship gives rise to what Heather Gerken and Jessica Bulman-Pozen have called the "power of the servant": because federal authorities depend on state officials to enforce federal law, state officials have opportunities to influence the shape of federal regulation and, sometimes, to resist aspects of federal policy that they do not like. (17) Modern-day nullification goes beyond the "uncooperative federalism" described by Professors Gerken and Bulman-Pozen, however; rather than subverting federal marijuana policy by nibbling around the edges, Colorado and Washington have gone on strike. …

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