Monday, May 31, 2010

Federalism and Fiscal Policy

Federalism and Fiscal Policy

One objection to modifying state marijuana laws is that the state cannot act contrary to federal law. While that proposition may be correct as a general rule, the principles of federalism, or the allocation of power between the federal government and the states, are more nuanced than that broad statement would indicate. One part of the problem is what effect the enactment of a federal criminal statute has on a state’s ability to legislate on the same subject.

On the most fundamental level, the Supremacy clause of the Constitution requires that when congress enacts a criminal statute, all people in the country must obey it, including state officials and agents. A governor cannot have his own private stash of cocaine and a professor in a state university may not experiment on marijuana without a federal license to do so.

One major consequence of this principle is that state law may not overrule federal law and make it inapplicable within the state. Therefore, a state law legalizing marijuana would not nullify the application of the Federal Controlled Substances Act within the state. A state resident, even if in conformity with a valid state statute could still be convicted in federal court for possession or delivery of marijuana.

State laws may not hamper the execution of any federal project. When I was young, I was amused to find out the truck I drove for the Post Office had no state license plate and I could not be required to have a state driver’s license to operate it. (We were required to obey most local traffic laws because the Post Office ordered us to, but the local police could not give us tickets.) Likewise, local law cannot require federal law enforcement officers to get warrants from state courts before conducting searches or making arrests and the state cannot require federal officers to wear uniforms.

The states ordinarily are not obligated to enforce federal laws. Local police do not pursue counterfeiters nor screen people on the streets for illegal aliens. Likewise, federal officers are not in the business of catching murderers or pursuing speeders.

In some areas, state and federal responsibility may overlap. Robbing a bank is a state crime, and robbing a bank with a federal charter is a federal crime. Kidnapping is local, but if it crosses a state line it becomes a federal crime as well. In these cases, both sets of police agencies are active and usually cooperate with each other.

A major part of this separation of policing is fiscal. If the federal government were able to co-opt local police agencies, then the national government would, in effect, be determining how state and local governments allocate their tax dollars. This control would have the potential to allow the federal government to control all aspects of local government.

(When the federal government does need local assistance, they reverse this equation. It uses federal dollars to make grants to states and cities that fulfill the conditions imposed on those grants. This approach has mandated things like uniform national speed limits and drinking ages.)

While a state may follow the federal government by criminalizing the same conduct, making it a state offense as well as a federal one, the states do not have to do so. The Texas Court of Criminal Appeals once ruled that it was unconstitutional under the state constitution for the legislature to delegate its authority by enacting a statute that would automatically make illegal possession of any drug declared illegal by the federal government. The state was required to exercise its own judgment on the issue.

The most famous example of a state’s refusal to copy the federal law occurred in 1923 when New York rescinded its own alcohol prohibition law and directed its law enforcement personnel not to enforce federal prohibition. The result was widespread drinking and a flourishing entertainment industry in spite of the actions of the federal revenue agents.

Many states are considering a similar action today. They are examining legalization of marijuana under state laws. While this legalization would not nullify federal law, it would remove state law enforcement and courts from acting against marijuana users or suppliers, saving those states very large sums and allowing the closure of some prisons. Those states would only be following the trail blazed by New York over eighty years ago.

If populous states like California, Texas, or New York were to change their laws in this way, national marijuana prohibition would probably end as well. The federal government has never been able to enforce its prohibition laws –alcohol or drugs – but has relied on the states for enforcement efforts. The DEA and FBI together do not have as many officers as some of the large municipal police forces. Any large city processes more criminal cases each year than do the federal courts, and the federal prison system holds fewer inmates than do several of the large states. The federal government would have to increase the size of the Department of Justice to a size comparable to the Department of Defense, and with a similar budget, to maintain the current level of drug law enforcement. A major question would be whether the citizens would accept a federal police force as large as their local police in their cities. That presence would be a revolutionary change in American politics.

If the states want to change their drug laws to be less comprehensive than the federal law, they have the right and ability to do so. The ultimate effect of those changes could be far-reaching and beyond what most of us can predict.

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