A constitutional issue stretching back 200 years has popped up in two stories about gun control and marijuana within the past week, with two different twists on the concept of nullification.
Nullification is the idea that in a system of state and federal laws, one law passed by a government can be overruled by another.
For example, if the state of New Jersey barred watching reality TV shows and an amendment of the U.S. Constitution guarantees the rights to watch “Storage Wars,” one law trumps the other.
In the case of gun control, a Pennsylvania state lawmaker, State Senator John H. Eichelberger Jr., is introducing a law that makes it illegal for the federal government to enforce its gun control laws within his state.
Eichelberger joins another state legislator, Daryl Metcalfe, in proposing Pennsylvania laws that seek to nullify the enforcement of federal laws. Other states have also proposed their own nullification laws that would trump federal gun laws.
And in the case of marijuana, nine former leaders of the Drug Enforcement Administration said in a statement that they want the federal government to nullify newly passed state laws in Colorado and Washington, which legalize recreational marijuana use under controlled circumstances.
Former DEA administrator Peter Bensinger said nullification was a “no brainer.”
“It is outrageous that a lawsuit hasn’t been filed in federal court yet,” said Bensinger.
What each story has in common is the Supremacy Clause of the U.S. Constitution. Article VI, Clause 2, states that in a conflict of state and federal laws, the federal law is the supreme law of the land:
“This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.”
Some proponents of states’ rights and the 10th Amendment don’t agree with the concept. But when challenged, the Supreme Court has decided that federal laws can’t be nullified by the states.
During the 1950s, a group of Southern states passed laws to block the desegregation of public schools. The court ruled in Cooper v. Aaron that the state of Arkansas couldn’t nullify a federal law and that the court had the power to make that decision.
States can contest the constitutionality of a federal law through the court system, and hope that a law is overturned. But they can’t decide to ignore a federal law—at least in theory.
That’s where the marijuana controversy comes into play in Colorado and Washington state, and in states that have passed their own medical marijuana laws.
The current federal statute on controlled substances makes medical and recreational marijuana a Schedule 1 controlled substance that is illegal nationally.
However, 18 states have made medical marijuana legal, and Colorado and Washington are now allowing people to smoke pot for fun under certain circumstances.
The administration of President Barack Obama faces a problem. Attorney General Eric Holder hasn’t made a decision yet about taking Colorado and Washington to court to invalidate their recreational marijuana laws.
If Holder does go to court, what does that mean for the states that have medical marijuana laws on the books? The attorney general has targeted medical marijuana dispensaries in recent years, but not smokers. Will those states also face lawsuits?
What if the Obama administration reaches a compromise with Colorado and Washington to let parts of their recreational marijuana laws stand?
Those state laws effectively nullify federal law, which isn’t exactly a precedent that the Justice Department would want to set for states that ignore possible federal gun control laws.
There’s some hope that Congress may act to change the federal statutes about marijuana use. And it seems unlikely, at this point, that major gun control laws will be coming from Congress in the near future.
But that could change if a compromise is reached in Congress on background checks on gun purchases. Several states strongly oppose the idea, and some local lawmakers have proposed state nullification laws to make gun registration illegal.
In some cases, the proposed state laws provide for the arrest of any federal official trying to enforce a gun-control law.
Scott Bomboy is the editor-in-chief of the National Constitution Center.
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