Last week a group of Missouri prosecutors announced it had taken legal steps to block voter consideration of a medical marijuana proposition on the November ballot.
In a news release, the group said it opposes the measure because pot is illegal under federal law. “Missouri law cannot usurp federal law,” the prosecutors claim.
That doesn’t seem to have been a problem in Colorado, where recreational marijuana is sold, but let’s leave that aside for the moment. Instead, let’s focus on the prosecutors’ central argument: state law, they say, must give way to federal law whenever there’s a conflict.
Most Americans assume the Civil War settled the concept of federal legal supremacy. Once a state becomes part of the Union, the theory goes, it must back off when its laws conflict with the nation’s.
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In fact, though, some Democrats and Republicans have argued for decades that states can pre-empt federal laws that contradict state policy.
The argument was common among southern Democrats who resisted national intervention in civil rights and school integration in the 1960s and 1970s. More recently, many Republicans have insisted the states are “laboratories of democracy,” able to enact legislation that contravenes Washington.
In 2013 Republicans in Kansas passed a statute saying federal laws and rules that violate the Second Amendment are “null, void and unenforceable” in the state. Last year a Missouri lawmaker proposed a similar measure.
The prosecutors now tell us this is poppycock, which is good to know.
Indeed, there may be signs even conservative Republicans now understand national supremacy. Sen. Pat Roberts of Kansas, for example, is a states-rights guy — he co-sponsored the 10th Amendment Act, which would have allowed states to challenge federal regulations they felt intruded on their rights.
Yet Roberts quickly abandoned states’ rights this year after Vermont decided to impose strict labeling requirements for genetically modified food. Roberts insisted state-by-state food labels would bring disaster, so he pushed through a one-size-fits-all national food labeling law.
“Our marketplace — both consumers and producers — needs a national biotechnology standard to avoid chaos in interstate commerce,” Roberts said in June.
Apparently Vermont is not a laboratory of democracy.
The tension between the rights of states and Washington is not just an academic exercise. Voter rights, education, health insurance, gun rights, even civil rights remain subjects of disagreement between the national government and the states.
It isn’t clear if the Missouri marijuana initiative will make it to the ballot. Some petition signatures were thrown out, a decision supporters of the measure are now challenging in court.
But if it goes on the ballot, the prosecutors say the voters’ decision is irrelevant. Washington, they say, must win anytime its laws disagree with a state’s.
That makes their legal challenge important — more important, ultimately, than who can or can’t smoke pot.