Marijuana: Does Amendment 64 decision mean states can defy feds on Obamacare?
Cory Gardner.
The Justice Department's decision not to sue Colorado over Amendment 64 was greeted as good news by its co-author and received mixed but mainly positive reviews from assorted politicians and marijuana advocates. But the prize for the most unusual response goes to Colorado Representative Cory Gardner, who's written to U.S. Attorney General Eric Holder asking if states can now ignore pretty much any federal law they don't like, including Obamacare. Details and not one but two Gardner letters below.

As noted by Roll Call, Gardner opposed A64, which allows adults 21 and over to use and possess small amounts of cannabis. It's no surprise, then, that Gardner begins his letter to Holder by noting that the federal Controlled Substances Act "makes it a criminal offense to manufacture, distribute, dispense or possess marijuana. In fact, simply possessing marijuana is a misdemeanor punishable by jail."

In light of the Justice Department's announcement regarding enforcement policies in Colorado, Gardner wonders "whether this action sets precedent to allow states to opt out of other federal laws."

As Gardner points out, he wrote a letter to President Barack Obama in June "asking him to explain this Administration's unilateral actions in several areas, with one being DOJ's failure to uphold federal drug laws." (The earlier missive follows the more recent one in the document below.) He adds that "I have yet to receive a response, and I still question the constitutionality of this Administration overriding federal law."
U.S. Attorney General Eric Holder.
More interesting is where Gardner takes the issue from there. In his view, the A64 policy implies "that federal authorities will not preempt state laws," prompting him to ask, "Does this set a precedent for 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," he goes on, "would you explain the inconsistencies of why in certain areas federal law may be deemed irrelevant, but not in others?"

Although we don't know if Holder or one of his minions will get back to Gardner regarding his inquiry, the likely answer to this question is that the Administration will determine enforcement priorities on a case-by-case basis. Still, Gardner's letter opens the possibility that the Amendment 64 policy could indeed be used as a rationale for more state challenges to federal law, either via the passage of legislation or, in an echo of A64, ballot measures that might put even more pressure on the Justice Department, since those that win can be said to directly represent the will of voters.

When viewed in that context, the Amendment 64 approach wouldn't establish precedent in a formal, legal sense -- but it could embolden greater defiance from states that, for instance, don't want any damn bureaucrat telling people they have to buy health insurance.

Here's the Gardner letter:

Cory Gardner Letter to the Department of Justice

More from our Politics archive circa July 2012: "Video: Cory Gardner bugged by beetles, fuming over fires."

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It's funny cause both the left and right wing in this country have refused to enforce our current immigration laws......The right wing loves the cheap labor and the left wing is gaining guaranteed socialist voters in the future.....If we are gonna be dysfunctional we might as well do it right....The drug war is akin to slavery.....Our government isn't guarding poppy fields in Afghanistan because they care about you or your children.......We have got in the habit of playing both sides of the field....More profitable this way....

KathleenChippi topcommenter

I would love to ax oBOMBya-care.   

Since when does the taxman have access to your medical records in order to decide if you have paid enough in extortion fee's to a private insurance company?   Since when does the private taxman force health insurance on an American with an AR15?  

Unfortunately, Mr. Gardner doesn't understand the memo on MJ.  What I read, seemed to promise everyone that the feds would continue to enforce any MMJ or MJ laws any time and anywhere.  The memo was --"we retain our rights to...." 

Jónatas Roze
Jónatas Roze

Well this response was inevitable. I'm surprised it's taken this long, to be honest.

Cognitive_Dissident topcommenter

By the way, the title's misleading. This doesn't have anything to do with marijuana. It has everything to do with the federal government's odd habit of making decrees and expecting the states to enforce them.

Cognitive_Dissident topcommenter

[Gardner wonders] "whether this action sets precedent to allow states to opt out of other federal laws."

The left and the right are both a bunch of hypocrites. "Opt out" is a loaded term. Choosing not to enforce federal laws is a state prerogative. Start there. As far as federal enforcement of federal laws, the executive branch has always "used discretion," and that discretion has always leaned along with the political leanings of the current regime. No surprises there.

michael.roberts moderator editortopcommenter

@Jonathan Rose You were ahead of us on this one, Jonathan. We were definitely caught off-guard. Thanks for the post.

Cognitive_Dissident topcommenter

To explain further, there are reasons why the "national speed limit," "seat belt law," and various other federally-sponsored legislation has been leveraged with coercive redistribution of federal taxes: because the federal government:

  • has no business making such laws
  • usually cannot itself enforce such laws
  • cannot force the states to enforce them

For what it's worth, I'd like little more than for Colorado to "opt out" of Obamacare. I'd enjoy it even more if they'd rebate me the fine/tax (whatever it is this week) that the IRS has been given authority to collect.

Hope that helps. 

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