Testifying before the House Judiciary Committee this week on the recent nullification of federal marijuana prohibition in Colorado and Washington State, Obama’s Attorney General Eric Holder found himself stuck in a tough spot. On one hand, Holder and the Obama administration have been brazenly threatening governors of states that have nullified unconstitutional federal usurpations on everything from gun rights to ObamaCare. On the other, however, Holder admitted to U.S. lawmakers this week the fact that federal law does not always trump state law.
It is undeniable that states have the authority to nullify unconstitutional acts of pretended federal “law.” According to Thomas Jefferson and James Madison, two of the key framers of the U.S. Constitution, in fact, states actually have a duty to protect the rights of citizens from federal usurpations by interposing themselves between the people and lawless U.S. government schemes. The Constitution itself also makes clear that federal laws are superior to state law only if they are “made in pursuance” of the Supreme Law of the Land — not in defiance thereof.
The 10th Amendment makes those facts even more explicit, saying that all powers not specifically delegated to the federal government in the Constitution are reserved to the states and the people. Prohibition of substances, of course, is not among the limited number of powers ceded by the sovereign states to the national government in the Constitution. That is why, for example, the federal ban on alcohol required a properly ratified constitutional amendment rather than a mere unconstitutional statute purporting to criminalize intoxicating drinks.
As such, Colorado and Washington — along with the approximately two dozen states so far that have ended prohibition on marijuana for medical purposes — are well within their rights to nullify unconstitutional federal statutes and United Nations mandates claiming to criminalize the controversial plant. When asked by Rep. Jason Smith (R-Mo.) whether federal statutes override state law when there is a conflict between the two, however, Holder waffled. He said that while U.S. statutes are “generally” supreme in many cases, that is “not always true” on all matters.
Whether Washington, D.C., can force state governments to criminalize a particular behavior with a federal statute is “an interesting question,” Holder continued. “There is at least an argument that could be made that the federal government could bring a supremacy-clause suit against the state,” the attorney general said. “But there is an argument that could be made that a state cannot be forced to criminalize something, so it’s actually an interesting question.” In fact, even the federal supremacists on the Supreme Court have already ruled that the federal government may not commandeer state and local governments.
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Photo of Attorney General Eric Holder: AP Images