Even though the voters of Colorado voted overwhelmingly to legalize recreational marijuana last fall, Colorado Republican Congressman Cory Gardner wants the Justice Department to nullify that vote and prosecute Colorado residents for marijuana.
Gardener, an ambitious Republican seeking to make a name for himself, wrote a letter Tuesday ripping Attorney General Holder for saying that the Justice Department would respect state laws when it comes to possession of marijuana for recreational use. Gardner opposed the Colorado marijuana ballot initiative last year and appears to be putting his personal and religious opinions ahead of the will of the voters.
Rep. Gardner wrote a pointed letter to Holder blasting the DOJ’s decision, on Colorado’s law citing that federal law makes possession of the drug a criminal offense.
“Do you believe the DOJ has the authority to override federal law?” Gardner asked in his correspondence with Holder. “Do you believe you have the authority to change the law without the approval of Congress?”
Holder proposed no change in federal law by the way.
Nullification in Reverse
Gardner is using the Republican tactic of nullification, but in reverse. Right-wing Republicans have adopted the Confederates’ belief, before the Civil War, that a state can nullify any federal law it does not agree with. The Civil War settled that argument decisively.
Right wing Republicans are once again claiming that states can nullify federal laws that they do not agree with like the Affordable Care Act, the Voting Rights Act, and in some cases, the Civil Rights Act.
Gardner wants to go one further. He wants to nullify a state law because he does not agree with it. He did not get his way when voters passed the marijuana initiative, so he wants to nullify it single handedly. Gardner must have been absent the day they taught about majority rule in 8th grade civics class.
Gardner does not understand that when a majority or the voters by initiative, or a majority of the duly elected representatives of the people in Congress pass a law, it is the law. It binds everyone including members of Congress or Governors. An individual, who takes an oath to uphold the constitution like Gardner did, can not go rogue and pick and choose which laws are valid based on his own views.
Gardner told Holder:
“The new DOJ policies seem to imply that federal authorities will not preempt state laws. Does this set precedent of other areas? For example, several states have passed laws to opt out of the Patient Protection and Affordable Care Act, yet the federal government has consistently said it will take over health insurance industries regardless of states that contest the law. If you do not agree that there is a precedent set, would you explain the inconsistencies of why in certain areas federal law may be deemed irrelevant, but not in others?”
Gardner is on very shaky constitutional grounds with his argument. The Constitution states that all powers not specifically given to the federal government are reserved for the states. Drug laws are reserved to the states. The federal government has jurisdiction on drug laws only if they are engaged in interstate commerce. That was the basis for federal drug laws—the drugs crossed state lines.
If marijuana is grown and sold in Colorado, as the new Colorado law provides, the state has the right to regulate it. There is no interstate commerce. Gardner is off base trying to tie this to Obamacare. First of all, Obamacare applies to all 50 states, not one state like Colorado’s law. Secondly, the Supreme Court ruled that Obamacare is constitutional because the constitution gives the federal government the right to tax.
Gardner wants to practice situation ethics;.he wants to have it both ways. He clams that the federal government can not mandate a tax under Obamacare using its taxing authority, despite the opinion written by Justice Roberts, but he thinks the federal government can take away the specific right given to the states in the constitution.
What happened to states’ rights?
Gardner’s constituents should take note that he disregards the legitimacy of their will as exercised by their vote last fall.