Join Michael Boldin of the 10th Amendment Center and enjoy the broadcast concerning the Commerce Clause. Can the government really just do what it wishes?
The federal government claims that Article I, Section 8, Clause 3 of the Constitution gives it the power to regulate and control everything from healthcare, to what kind of light bulbs we can buy, and just about anything in between. But this is so far from the Founders’ design, it’s virtually unrecognizable.
TRENTON, N.J. (July 10, 2019) – Last week, New Jersey Gov. Phil Murphy signed a bill expanding the state’s medical marijuana program despite federal prohibition.
A bipartisan coalition of 17 legislators sponsored Assembly Bill 20 (A20). Titled the Jake Honig Compassionate Use Medical Cannabis Act, the new law makes a number of changes to current law that will expand access to medical marijuana in New Jersey.
The new law adds new illnesses eligible for cannabis use and the increases the amount of marijuana a patient can purchase each month from two to three ounces. It also allows edible forms of cannabis and home delivery.
The new law will also increase the availability of medicinal cannabis by expanding the number of cultivators from 12 to 28.
A20 streamlines the process of getting a medical marijuana card and authorizes physician assistants as well as advanced practice nurses to recommend medicinal cannabis. The law also creates three new licensing categories: cultivators, manufacturers and dispensaries. The previous system only licensed so-called alternative treatment centers that covered all three categories. Under the old law, medical marijuana patients had to get recertified every 90 days. A20 establishes an annual recertification process.
A20 also creates a process to approve designated caregivers.
Under the new law, employers cannot take action against employees just because they are medical marijuana patients.
In addition to the expanded provisions, the bill will create a full-time Cannabis Regulatory Commission to oversee the addition of new qualifying conditions for patients, issue licenses for dispensaries and oversee enforcement of the medical marijuana laws. The CRC was originally part of the legal weed bill.
The Assembly passed A20 by a 66-5 vote. The Senate approved the measure 35-5. With Gov. Murphy’s signature, the law went into immediate effect.
“Today’s legislation creates a medical marijuana program that is modernized, compassionate, progressive, and meets the needs of patients,” Murphy said in a statement. “I am proud to stand with my legislative partners as we break down barriers to ensure this life-changing medical treatment is affordable and accessible for those who need it most.”
This is another example of the rapidly expanding availability of marijuana despite federal prohibition.
EFFECT ON FEDERAL PROHIBITION
Under the federal Controlled Substances Act (CSA) passed in 1970, the federal government maintains complete prohibition of marijuana. Of course, the federal government lacks any constitutional authority to ban or regulate cannabis within the borders of a state, despite the opinion of the politically connected lawyers on the Supreme Court. If you doubt this, ask yourself why it took a constitutional amendment to institute federal alcohol prohibition.
New Jersey legalized medical marijuana in 2010. The program languished under Gov. Chris Christie, a staunch opponent of cannabis. When Gov. Phil Murphy took office, he loosened requirements and expanded the number of qualifying medical conditions.
This removed one layer of laws prohibiting marijuana in the stare, but federal prohibition remains in place. This is significant because FBI statistics show that law enforcement makes approximately 99 of 100 marijuana arrests under state, not federal law. When states stop enforcing marijuana laws, they sweep away most of the basis for 99 percent of marijuana arrests.
Furthermore, figures indicate it would take 40 percent of the DEA’s yearly-budget just to investigate and raid all of the dispensaries in Los Angeles – a single city in a single state. That doesn’t include the cost of prosecution. The lesson? The feds lack the resources to enforce marijuana prohibition without state assistance.
Enactment of A20 further undermines prohibition and make it that much more difficult for the federal government to enforce it in New Jersey.
A GROWING MOVEMENT
New Jersey is one of a growing number of states simply ignoring federal prohibition, and nullifying it in practice.
Colorado, Washington state, Oregon and Alaska were the first states to legalize recreational cannabis, and California, Nevada, Maine and Massachusetts joined them after ballot initiatives in favor of legalization passed in November 2016. In 2018, Vermont became the first state to legalize marijuana through a legislative act. Illinois followed suit this year and Michigan passed a ballot measure legalizing cannabis for general use.
With 33 states including New Jersey allowing cannabis for medical use, the feds find themselves in a position where they simply can’t enforce prohibition anymore.
“The lesson here is pretty straightforward. When enough people say, ‘No!’ to the federal government, and enough states pass laws backing those people up, there’s not much the feds can do to shove their so-called laws, regulations or mandates down our throats,” Tenth Amendment Center founder and executive director Michael Boldin said.
Efforts to expand medical marijuana laws in New Jersey demonstrate another important reality. Once a state puts laws in place legalizing cannabis, they tend to eventually expand. A20 serves as a perfect example of this tendency. As the state tears down some barriers, markets develop and demand expands. That creates pressure to further relax state law. This bill represents a further erosion of unconstitutional federal marijuana prohibition. It also demonstrates an important strategic point. Passing bills that take a step forward sets the stage, even if they aren’t perfect. Opening the door clears the way for additional steps. You can’t take the second step before you take the first.
Michael Maharrey [send him email] is the Communications Director for the Tenth Amendment Center. He proudly resides in the original home of the Principles of ’98 – Kentucky. See his blog archive here and his article archive here. He is the author of the book, Our Last Hope: Rediscovering the Lost Path to Liberty. You can visit his personal website at MichaelMaharrey.com and like him on Facebook HERE
Many people today seem to think it’s the federal government’s job to protect their liberty. But the Founding Fathers didn’t.
In fact, they feared the new government would become too powerful and trample individual liberty. They had a healthy distrust of centralized authority and expected the states to step up and hold the federal government in check.
Unfortunately, the states aren’t doing their jobs.
Last week I was having a conversation with an Ohio State Representative. As is the case with most of my conversations with state politicians, the topic turned to nullification. I got the predictable three responses from the rep. First, “If we do that, then the feds will cut off the money.” Second, “No state is nullifying.” And last, I got the knowing “smile,” the smile that says, “You don’t understand how politics really work, leave it all to me.”
Well, my response has become predictable too.
First, I ask if they even know what nullification is. And then I asked if they have ever heard of the anti-commandeering doctrine and if they know what the founding fathers said about the role of the states when the federal government oversteps its constitutional boundaries?
They still give me the “smile,” but it’s never quite as wide now as it was.
Let’s tackle my questions to the legislators one at a time.
First, let’s clarify something; what does it mean when a state “nullifies” something?
It simply means “We refuse to do it.”
That’s it in just five words.
As James Madison put it in Federalist #46, we are talking about “a refusal to cooperate with officers of the union.” The states simply refuse to use their resources, i.e. manpower, time, and money to put into effect an unconstitutional federal law or regulation. The founders made it very clear in their writings that it was the state’s obligation and duty to oppose unconstitutional federal law.
When it comes to the state’s role, I think we all need reminding from time to time about what the Founder’s actually said:
“ … Besides this security [Bill of Rights], there is a great probability that such a declaration in the federal system would be enforced; because the State Legislatures will jealously and closely watch the operations of this Government, and be able to resist with more effect every assumption of power, than any other power on earth can do; and the greatest opponents to a Federal Government admit the State Legislatures to be sure guardians of the people’s liberty…” ~ James Madison Introduction to the Bill of Rights, June 1789
“ … But there is another check, founded in the nature of the Union, superior to all the parchment checks that can be invented. If there should be a usurpation, … it will be upon thirteen legislatures, … having the means, as well as inclination, successfully to oppose it. Under these circumstances, none but madmen would attempt a usurpation… “ ~ Theophilus Parsons, Massachusetts Ratifying Convention 1788
“…It may safely be received as an axiom in our political system, that the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority…” ~ Alexander Hamilton Federalist #28
“If the interposition of the State legislatures be necessary to give effect to a measure of the Union, they have only NOT TO ACT, or to ACT EVASIVELY, and the measure is defeated.” ~Alexander Hamilton, Federalist #16
“Where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non fœderis) to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them.” ~Thomas Jefferson, Kentucky Resolutions, 1798
“But ambitious encroachments of the federal government, on the authority of the State governments, would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm. Every government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole.” ~James Madison, Federalist #46
Don’t amend the Constitution. Don’t sue the federal government in federal courts. The states are supposed to protect us by NULLIFYING unconstitutional federal laws by refusing to enforce them.
Next, let’s discuss the Anti-Commandeering doctrine.
What is it?
The basis for this doctrine was the advice of James Madison. Writing in Federalist #46, he advised four primary tactics for individuals and States to effectively push back against federal overreach, including a “refusal to cooperate with officers of the Union.”
Going back over 177 years the Supreme Court has said that States do not have to use their manpower or money to enforce federal law or any regulatory programs.
Prigg v. Pennsylvania (1842) – The Federal Govt. could not force States to enforce the Fugitive Slave Act of 1793. ~Chief-Justice Joseph Story
New York v. United States (1992) – The Federal Govt. cannot “commandeer the legislative process of the States by directly compelling them to enact and enforce a federal regulatory program ~ Justice Sandra Day O’Connor
Printz v. United States (1997) – Federal Govt. can neither direct the States to address Federal problems or command the States’ officers or political sub-divisions to administer or enforce a federal regulatory program. ~ Justice Anthony Scalia
N.F.I.B v. Sebelius (2012) – “The Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ ~Chief-Justice John Roberts
Murphy v. NCAA (2018) – The Court held that Congress can’t take any action that “dictates what a State legislature may and may not do” even when the State action conflicts with federal law, “a more direct affront to State sovereignty is not easy to imagine.” ~Justice Samuel Alito No States are nullifying. This one is easy to dispense with. Right now there are 34 States nullifying federal drug laws by legalizing marijuana for either medical use, recreational use or both.
Lastly, let’s talk about the biggest worry for most State legislators, the M-O-N-E-Y. That’s always the first thing a legislator brings up: if we nullify something, they will cut off the money.
I say to them, if you aren’t using state resources to enforce an unconstitutional law or regulation, i.e., not spending any money on them, then it doesn’t matter if they cut off that money, does it? They can’t cut off money for programs states are running, just for the ones they aren’t.
You can tell by reading the words of the Founders that they expected the state governments to jealously guard against the federal government encroaching on powers that rightfully belonged to the states.
“…and the greatest opponents to a Federal Government admit the State Legislatures to be sure guardians of the people’s liberty…” ~ James Madison Introduction to the Bill of Right, June 1789
The problem with Nullification is that it is misunderstood by most people or not even known about by the rest.
It is up to us, the people, to see to it that our state legislators know about nullification and that we expect them to use it to start reining in a federal government that is out of control.
Jim served in the USMC from 1972 -1976 and he firmly believes in the Constitution and he still holds the Oath he took in 1972 to protect and defend it as binding upon himself and any others who have ever taken it.
Jim started teaching classes on the Constitution in 2011, and currently is the Chairman of “Building Blocks for Liberty”. Building Blocks For Liberty is a 501c3 non-profit educational organization dedicated to the preservation of the U.S. Constitution by teaching others the importance of this historical document that governs our nation. BBFL teaches ONE DAY Boot Camps on reading and understanding the Constitution, and they have held over 70 Boot Camps in Ohio, Indiana, Kentucky, Michigan and Texas since incorporating in July of 2014.
Jim also teaches the Constitution at the Providence Extension Program to 11th & 12th grade students and teaches American History at the Miami Valley Christian Academy.
SANTA FE, N.M. (July 8, 2019) – Last week, a law creating a licensing and regulatory structure for hemp production and ensuring the sale of CBD can continue in the state went into effect. This will not only open up markets in New Mexico; it also takes a crucial step given the FDA’s continued regulation and prohibition of CBD.
Rep. Derrick Lente (D-Sandia Pueblo) sponsored House Bill 581 (HB581). The legislation creates a licensing structure for hemp producers and for those manufacturing hemp products.
The new law specifically authorizes the sale of cannabidiol and food products containing CBD. Under the statute, “hemp finished products produced by a hemp manufacturer holding a permit issued pursuant to this section shall not be deemed adulterated as that term is used in the Food Service Sanitation Act and the New Mexico Food Act.”
There were no specific laws on the books regarding hemp-derived CBD prior to enactment of HB581, but it is already widely available in the state. Passage of HB581 ensures cannabidiol will remain legal under state law. This is crucial because despite removing the plant from the list of controlled substances late last year, the federal government still prohibits the sale of CBD products under FDA rules.
2018 Farm Bill and CBD
With the passage of the farm bill, the federal government now treats industrial hemp as an agricultural commodity instead of a controlled substance. While the DEA will no longer have the authority to regulate hemp, the provisions of the farm bill have no bearing on FDA rules and regulations regarding CBD. In fact, a section in the farm bill makes this explicit.
Section 297D, paragraph (c)(1) “Regulations and Guidelines; Effect on Other Law” states “nothing in this subtitle shall affect or modify the Federal Food, Drug, and Cosmetic Act.”
Practically speaking, the passage of the farm bill does not mean CBD will now be federally-legal in all 50 states, as some hemp supporters claim. In fact, the FDA still maintains a strict prohibition on the sale of CBD in the U.S.
To date, the FDA has only approved one medication with cannabidiol as an active ingredient – Epidiolex for the treatment of seizures. But the FDA classifies CBD as “a drug for which substantial clinical investigations have been instituted.” Under federal law, that designation means the FDA maintains full control over the substance and it cannot be marketed as a “dietary supplement.” The agency maintains that the sale of CBD or any food products containing the substance is illegal.
To date, the agency hasn’t changed its position on CBD. In a recent congressional hearing, FDA Commissioner Scott Gottlieb said he understands that Congress wants a pathway to CBD availability, but said “it is not a straightforward issue” due to the fact that the agency has approved CBD for treatment of epilepsy and it is ““subject of substantial clinical investigation.” Both of these factors prohibit CBD from being sold as a “health supplement” and from being added to food.
Gottlieb said, “the law does allow us to go through a regulatory process and go through a notice and comment rule-making to establish a framework to allow it to be put into the food supply.”
The FDA held its first public meeting relating to CBD in May. FDA principal deputy commissioner Amy Abernethy said there is a need to “further clarify the regulatory framework to reduce confusion in the market,” and “Key questions about product safety need to be addressed. Data are needed to determine safety thresholds for CBD.”
In effect, the agency can continue to enforce these same rules even with the passage of the 2018 farm bill. While farmers can now legally grow hemp for commercial purposes, including the production of fiber, biofuel, building products, paper, clothes and even food products that don’t contain CBD, the sale of cannabinol or food products containing CBD remain federally-illegal, as it has been all along, unless the FDA changes its policy or Congress passes legislation specifically legalizing CBD.
With the enactment of HB581, New Mexico will not interfere with the sale of CBD products produced in the state regardless of continued federal prohibition.
Without state cooperation, the FDA will likely have trouble regulating it in New Mexico.
Despite past and ongoing federal prohibition, CBD is everywhere. A New York Times article asserted that “with CBD popping up in nearly everything — bath bombs, ice cream, dog treats — it is hard to overstate the speed at which CBD has moved from the Burning Man margins to the cultural center.”
This was happening when both the DEA and FDA prohibited CBD. It will undoubtedly continue as long as market demand remains and states don’t interfere. The FDA can’t effectively enforce prohibition without the assistance of state and local officials.
According to the FDA, the agency prioritizes enforcement based on a number of factors, including “agency resources and the threat to public health. FDA also may consult with its federal and state partners in making decisions about whether to initiate a federal enforcement action.”
Even with both the FDA and DEA theoretically enforcing federal laws and regulations banning CBD, state and local action have already nullified federal prohibition in practice and effect. There’s no reason to think that won’t continue as long as states maintain the same stance on CBD as they did under the 2014 farm bill. Simply put, the federal government lacks the personnel and resources to crack down on CBD – even if the FDA wants to.
Michael Maharrey [send him email] is the Communications Director for the Tenth Amendment Center. He proudly resides in the original home of the Principles of ’98 – Kentucky. See his blog archive here and his article archive here. He is the author of the book, Our Last Hope: Rediscovering the Lost Path to Liberty. You can visit his personal website at MichaelMaharrey.com and like him on Facebook HERE
The federal government is out of control, unable to limit its spending or satisfy its insatiable appetite for consuming the people’s liberties. And these tendencies seem to get worse with each election. Americans are starting to wonder whether or not Washington will ever fix itself. But, what if it didn’t need it to? What if the states held the power to hold Washington within the limits imposed on it by the Constitution? More and more people are coming to the realization that, through nullification, the states can do just that. But this concept, although rooted in history, is still new to many. Here are some common questions about nullification, the answers to which serve as an excellent introduction to this important, long-forgotten principle.
What is nullification?
Nullification is the principle that the individual states have the authority to refuse to comply with unconstitutional federal laws.
What is it based on?
Nullification arises from the understanding that the states, by ratifying the Constitution, brought the federal government into existence for a few specifically enumerated purposes. The powers that were delegated to it by the states in the Constitution are understood to be the only powers that Washington possesses. As such, it cannot legally do anything that is not specifically given to it as a power. This understanding was formalized by the Tenth Amendment.
Is it constitutional?
The Tenth Amendment states, “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.” Although the writers and ratifiers of the Constitution understood that the states retained all undelegated authority, the Tenth Amendment was added to ensure that this could never be challenged.
While nullification is not specifically mentioned in the Constitution, several key figures in early American history, including Thomas Jefferson, James Madison and Alexander Hamilton, openly supported the idea that states could refuse to comply with unconstitutional laws. Furthermore, it makes no sense to believe that the Founding Fathers would have added the Tenth Amendment and then made its enforcement unconstitutional. With this in mind, nullification is simply the manner in which the states can enforce the Tenth Amendment.
Isn’t the federal government supreme?
Article VI, Clause 2 of the Constitution, the so-called Supremacy Clause, states that, “This constitution, and the laws of the United States which shall be made in pursuance thereof…shall be the supreme law of the land…any thing in the constitution or laws of any state to the contrary notwithstanding.” Opponents of nullification love to cite this as evidence that the principle is unconstitutional.
The other thing that the opponents love to do is ignore those seven little words, “which shall be made in pursuance thereof.” The Constitution does not say that every law that the U.S. Government makes is supreme, only those that are made in pursuance of the responsibilities given to the federal government by the Constitution. Any law that it makes that is not in pursuance of the Constitution is not covered by the Supremacy Clause.
Incidentally, this is the only logical conclusion. Why would the framers expend all of the effort to explicitly say what the federal government’s limits are and then allow for sweeping powers in a single clause? That would be like carefully building a fireplace to safely provide warmth and then lighting the couch on fire. The only conclusion that makes sense is that this clause was added simply to enable the federal government to carry out the few responsibilities it was delegated.
Doesn’t the Supreme Court decide what’s constitutional?
There’s a common belief that when the Supreme Court declares something to be constitutional the question is settled. This belief is completely in opposition to the principles of the Constitution. Again, it would be logically inconsistent for the Founders to have strictly limited the federal government and then given a branch of that government the final say in determining the extent of its own powers.
This is why Thomas Jefferson said that the federal government “was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers.”
The Supreme Court’s power of “judicial review” is supported by the Constitutional Convention debates, although there was some disagreement on the issue. Nevertheless, at no point was the Supreme Court given the ultimate power of deciding the constitutionality of federal laws.
Does nullification work?
Absolutely! As an example, in 2005 Congress passed the REAL ID Act which, among other things, attempted to set new federal regulations for state driver’s licenses. At least 25 states have formally opposed the Act and only 13 states have complied with it. Since 37 states are engaged in some form of noncompliance, the federal government has no way of enforcing the act.
How do I get involved?
Getting involved is as simple as contacting your state representative, your state senator and the governor’s office to remind them of their duty to resist unconstitutional legislation. You can join the Tenth Amendment Center and kelp us as we work to advance state-level resistance to Obamacare, infringements on the Second Amendment, the NDAA, and other unconstitutional activities. You can also like our Facebook page for updates and action steps.
It doesn’t add anything to the Constitution, nor does it take anything away. But it serves a very important function. It tells us how to interpret the document. Think of it like a lens through which we evaluate everything the federal government does..
In legal terms, the Tenth Amendment is what is known as a “rule of construction.”
The Tenth Amendment makes explicit two fundamental constitutional principles that are implicit in the document itself.
The federal government is only authorized to exercise those powers delegated to it.
The people of the several states retain the authority to exercise any power that is not delegated to the federal government as long as the Constitution doesn’t expressly prohibit it.
In a nutshell, the federal government has a very limited number of things it is authorized to do. These powers are listed throughout the Constitution.
Most power and authority remains with the states; either with the state governments or with the people themselves as they determine in each state.
St. George Tucker summed up this rule of Construction in View of the Constitution of the United States, the first extended, systematic commentary on the Constitution published after ratification:
“The powers delegated to the federal government, are, in all cases, to receive the most strict construction that the instrument will bear, where the rights of a state or of the people, either collectively or individually, may be drawn in question.”
Thomas Jefferson said he considered “the foundation of the Constitution as laid on this ground.”
The Tenth Amendment. If you apply these rules to anything and everything federal government does or proposes to do, your foundation will remain strong.
