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A True Test of Republican Federalism on Display this Week

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AP Photo/Andrew Selsky, File

This week, Republicans in Congress will have a test of a commitment they have made over the past decades to the idea of federalism.  The House is working through the appropriations process and will vote on a bipartisan amendment to the Commerce, Justice and Science (CJS) appropriations bill for fiscal year 2020 that allows federalism in marijuana laws. This is a true test of federalism and Republicans will be on record whether they support or oppose the right of states to police themselves with regard to medical and adult use cannabis laws.

In 2014, Congress passed legislation protecting states that had passed laws allowing medical marijuana from prosecution from the Department of Justice. Now retired Rep. Dana Rohrabacher (R-CA) was the Republican pushing this initiative and he was finally successful in passing the amendment to appropriations bills in 2014.  That law has been in place and on every appropriations bill since 2014 and the effort to allow medical marijuana has proven a very popular common-sense measure to help people with post-traumatic stress disorders and kids with severe recurring seizures. Medical marijuana has proven to be largely non-controversial, yet it is still technically illegal under federal law under the Controlled Substances Act (CSA), yet suspended in prosecution because of the Rohrabacher amendment.

The vote this week on the House floor will expand that prohibition of federal prosecution to all states that have passed both adult use and medical cannabis use laws. The Republican leading the fight on this federalism initiative is Rep. Tom McClintock (R-CA). The amendment has been drafted carefully to address the federalism aspects of this issue by not including territories and the District of Columbia to keep this a clean vote on federalism. This will provide an opportunity for voters to see if the self-proclaimed federalists in the Republican Party are true federalists or fair-weather federalist who only use that defense when they agree with the underlying policy. Federalism is a first principal for so many Republicans when they choose to enter politics.

This effort mirrors the ideas in the STATES Act being pushed by Sen. Cory Gardner (R-CO). On April 5, 2019, Senator Gardner put out a release on the reintroduction of the bill that stated “U.S. Senators Cory Gardner (R-CO) and Elizabeth Warren (D-MA) reintroduced the Strengthening the Tenth Amendment Through Entrusting States Act (STATES Act) with broad bipartisan support that spans the political spectrum. Not only does this common sense legislation have bipartisan support, it also brings together key players across the business community. The overwhelming support for the STATES Act shows that the time has come for the federal government to respect state decisions on this issue.” This bill has the support of the American Banker Association, Americans for Tax Reform and a number of conservative groups. This legislation is a permanent version of the bipartisan McClintock amendment, sponsored by Rep. Earl Blumenauer (D-OR), that would only apply to the upcoming fiscal year.

This is a test on federalism because all the powers not explicitly granted to the federal government are reserved for the states according to the 10th Amendment to the Constitution. Right now, there is a federal law that prohibits marijuana production and use, yet a number of states have allowed adult and medical use of the product. This conflict can’t stand and is creating problems within states, because banks can’t confidently allow legal sellers and growers of cannabis financial services for fear of prosecution under federal law. A federalist would tip the balance to the states on these issues because the states have traditionally exercised police powers and regulated the activities of residents of a state.

The conflict between federal and state law can’t stand. The federal government should respect the traditional police powers of the states that allow them to handle crimes within the borders. Federalism, and the 10th Amendment to the Constitution, allow the powers not specifically delegated to the federal government to reside with the states and the people. There is no specific federal authorization for the regulation of marijuana, therefore, it might finally be the time to let the states take back the police powers of regulating marijuana.

This week is a test, and liberty minded voters can only hope that this dysfunctional Congress can agree on one issue that will allow more freedom and liberty for citizens to have more choices and access to products they have voted to allow in their own state.

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