Modern-day nullification: marijuana and the persistence of federalism in an age of overlapping regulatory jurisdiction.

• Author: Young, Ernest A.
• Position: Western Reserve University School of Law Interdisciplinary Conference on Marijuana, Federal Power & the States

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 INTRODUCTION

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. And as the marijuana controversy illustrates, state officials derive the power to defy federal policy from the fact that they are not servants, but rather officers of a different government with an independent base of legitimacy and accountability.

It is hard to know how far contemporary state officials will go to defy federal policy. Certainly the circumstances of contemporary debate about marijuana legalization are particularly auspicious--marijuana enforcement is a low priority at best for federal officials, national public opinion favors legalization, and the national Executive is both sympathetic to legalization and fond of not enforcing federal laws with which it disagrees. Some of these circumstances may well prove ephemeral even as to marijuana, and several will not translate well to other issues on which states wish to depart from federal norms. Modern-day nullification may have important advantages, however, including not only the traditional benefits of federalist policy diversity but also the potential to defuse important and intractable problems of separation of powers at the national level. Rather than viewing modern-day nullification as yet another obstacle to federal policy to be overcome, Congress may wish to consider institutionalizing aspects of state power to depart from federal policy.

1. COOPERATIVE FEDERALISM AND MARIJUANA LEGALIZATION

   Federal law classifies marijuana as a Schedule 1 drug (18) under the Controlled Substances Act (CSA), (19) based on a finding that it has no accepted medical use and a high potential for abuse. (20) The CSA thus categorically prohibits the manufacture, distribution, and possession of marijuana. (21) And the federal prohibition has been upheld against both charges that it exceeds Congress's commerce power and claims that, for medical patients at least, it contravenes a fundamental right of access to pain relief. (22) Although some of us still think the Court erred in upholding the CSA as applied to personal possession and consumption of marijuana for medicinal purposes, in the absence of any commercial transaction or movement across state lines, (23) that ship has sailed. The federal marijuana ban is thus "the supreme Law of the Land... any Thing in the Constitution or laws of any State to the Contrary notwithstanding." (24)

   Except that in Boulder, Colorado, it is easier to find a head shop than a coffee shop. (25) The reason has to do with the cooperative federalism structure of criminal law enforcement. Generally speaking, federal and state governments not only share constitutional jurisdiction over drug crimes, but they have also criminalized largely the same behavior. As a practical matter, however, federal authorities play a decidedly secondary role. The overall ratio of federal to state and local law enforcement personnel in this country is roughly one to ten, (26) and drug enforcement is not the priority it once was. In 2007, federal agents made 7,276 marijuana arrests--less than 1 percent of all American marijuana arrests that year. (27) Hence, as Robert Mikos has observed, "[t]he federal government has too few law enforcement agents to handle the large number of potential targets. Simply put, the expected sanctions for using or supplying marijuana under federal law are too low, standing alone, to deter many prospective marijuana users or suppliers." (28)

   Federal marijuana policy thus depends heavily on state and local enforcement. In this sense, drug policy parallels any number of other federal regulatory regimes--from environmental policy to Medicaid--in which state officials play a critical role in implementing federal policy. Drug enforcement differs from these other cooperative federalism regimes in that state officials are not implementing the federal drug laws but rather enforcing parallel state prohibitions. But drug enforcement involves not only overlapping substantive offenses but also coordinated investigation and prosecution strategies; federal prosecutors tend to focus on major distribution "kingpins," for example, (29) while state and local officials prosecute the overwhelming majority of minor drug offenses. Hence, the "War on Drugs" amounts to a cooperative federalism regime not all that different, say, from state implementation of the Clean Air Act.

   One critical difference between the actions of states "legalizing" marijuana in defiance of federal policy and South Carolina's nullification ordinance in 1832 is the purported effect on the relevant federal rights and obligations. For John C. Calhoun and the South Carolina legislature, nullification rested on a judgment that the federal tariff was unconstitutional. (30) Nullifiers thus did not so much deny the supremacy of valid federal laws but rather the exclusivity of federal judicial review as a mechanism for determining those laws' constitutional validity. (31) States that have legalized marijuana, by contrast, do not rely on an argument that the federal CSA is unconstitutional (although many proponents may well think that), and they do not purport to affect the binding legal force of the federal prohibition. States like California and Colorado have "legalized" marijuana only as a matter of state law. They are simply making a bet--and it is a good one--that absent state cooperation, federal law is unlikely to be enforced in their states. This is functional--not principled--nullification, but its effect on the ground is very close to what John C. Calhoun's South Carolina hoped to achieve. (32)

   If state noncooperation undermines federal enforcement to this degree, then one might think federal authorities would have a strong argument that state marijuana laws are preempted. After all, surely they "stand[] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." (33) But the anti-commandeering cases have established that states have no obligation to implement or enforce federal law unless they voluntarily agree to do so. (34) It follows...