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The 10th Amendment long has been a favorite of more conservative- and libertarian-leaning Americans for limiting the power of the federal government with respect to the states.
The amendment particularly has been invoked by opponents of President Obama’s many moves to expand the federal government’s reach, including in health care and state law enforcement.
So when Obama’s attorney general, Eric Holder, invoked the 10th Amendment in the Justice Department’s decision to not challenge state lawmakers in Colorado and Washington who challenged federal statutes by passing laws legalizing possession of marijuana, a Colorado congressman wanted to know the extent of Holder’s conversion.
“The real question is, ‘Does this mean that states now have the right to pre-empt federal law under the 10th Amendment?'” wrote Rep. Cory Gardner, R-Colo., in a letter to Holder.
The letter came after Holder confirmed publicly that the Department of Justice, which repeatedly has said that states cannot deviate from federal law, would defer to Colorado and Washington state laws regarding marijuana.
“Eric Holder has said that states cannot opt out of federal law, yet here he is doing the exact opposite. What is the administration’s guidance on when a state can assert 10th amendment freedoms and when they can’t?” Gardner wanted to know.
It was in a conference call last Thursday that Holder notified the governors of Colorado and Washington that the DOJ would not attempt to preempt state laws legalizing recreational marijuana use.
While several states allow marijuana use for medical reasons, the two states are the only ones to allow pot smoking for purely recreational use.
In Colorado, Amendment 64 was sold to the voters by marijuana advocates who said the state would regulate recreational marijuana use similar to alcohol, and the money raised from taxes would go to school funding.
However, despite the state’s move, pot usage remains illegal under the federal Controlled Substances Act.
So the natural question arose: Would the federal government follow the will of the people and refuse to enforce federal law in Colorado and Washington?
Under the new guidelines, federal prosecutors are required to focus on eight enforcement priorities to prevent certain activities related to the drug trade, such as stopping drug trafficking by the cartels and gangs, preventing distribution of marijuana to minors and preventing individuals from driving under the influence of marijuana.
The move surprisingly has put Holder on the same side as some tea party leaders.
For example, Weld County Attorney General Ken Buck, a tea party candidate for the Colorado Senate, said while he opposed Amendment 64, he believes in this instance Holder made the right decision.
“I do agree with the decision by Holder to defer to our laws,” Buck said. “Once Colorado made its decision to legalize marijuana, the federal government should not come in here and overturn the will of the people. I opposed Amendment 64, but what happened immediately after the vote was some of the other people who opposed it as well ran to the federal government saying, ‘Save us! Save us!’ and in my mind that is wrong. At this point we need to figure out how to make the marijuana law work.”
But Buck, staunchly conservative, noted that while the Obama administration may have yielded to states’ rights in this instance, it hasn’t on many other issues.
Gardner said: “This is the reason elections are so important – because the people in power set the priorities and in this case the federal government has decided that they will allow the states more flexibility with drug laws but they will not do so with immigration laws.”
Gardner told WND that while there is a difference of opinion on the use of marijuana, Holder is circumventing the constitutional process with his guidelines.
“This is no longer the rule of law, it is now just up to opinions and the people in power instead of the rule of law,” Gardner said. “If a person disagrees with the law the proper process is to go through Congress or their state legislatures and get them changed. The Constitution says the president’s job is to faithfully execute the law; now that meant enforce them not kill them.”
The Obama administration occasionally has been selective in its enforcement of laws. For example, Obama decided to not enforce or defend the Defense of Marriage Act, which at the time was established federal law.
Nearly at the same time, the administration sued Arizona for trying to enforce federal immigration laws.
The 10th Amendment states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Gardner’s office sent a letter to Holder on Tuesday taking him to task for his apparent inconsistency regarding which laws to enforce.
“I write to question the department’s constitutional authority on overriding federal law and seek answers as to whether this action sets precedent to allow states to opt out of other federal laws,” the letter says.
“While I commend the DOJ for finally issuing guidance after nearly 10 months since Colorado voters legalized marijuana’s recreation use, its new policies are in contrast to the Controlled Substances Act. Essentially, DOJ policy now allows states like Colorado to opt out of federal marijuana laws. Do you believe the DOJ has the authority to override federal law? Do you believe you have the authority to change law without the approval of Congress?”
Gardner then asked if the administration now believes that states have the ability to opt out of other laws and regulations with which they disagree .
“The new DOJ policies seem to imply that federal authorities will not pre-empt state laws. 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, would you explain the inconsistencies of why in certain areas federal law may be deemed irrelevant, but not in others?”
Gardner explained the purpose of his letter goes to the very foundations of the nation and its current president.
“You have a president who is deciding that the states have the right to adhere to certain federal laws, but apparently they can pick and choose which laws apply. It goes to the entire question of this president’s respect for the rule of law,” he said.
He said the Obama administration’s actions have apparently now given a green light to states to assert their rights under the 10th Amendment.
“Following the example of this administration there are now apparently any number of issues that if a state decides they do not want to abide by a particular federal law, they now have the right to simply opt out by passing their own laws and regulations,” he said.