Originally published in the Los Angeles Daily News on 02-15-11

Nullification. The word evokes images of white-haired men with tri-fold hats, holding up signs about the “evils” of Obamacare and socialism.

States around the country are considering laws to reject federal laws on health care, guns, Environmental Protection Agency regulations and more. The pundits scream “racism,” the legal experts cite the “supremacy clause,” and the entire country – left to right – just might be missing the point.

As executive director of the Tenth Amendment Center, the organization which created the “Health Care Nullification Act” introduced in more than 10 states, I see many people who fit this stereotypical “tenther” image, too.

Whenever I speak at “Nullify Now!” events around the country, the crowd is predominantly these folks. While a few progressives occasionally join the protesters, one doesn’t find too many 20-somethings with Che T-shirts attending such events.

While the rhetoric coming from many on the right these days includes words like “nullification,” and “state sovereignty,” it has been the left, not the right, which has been successful in putting these ideas into practice. And, California has been at the forefront since the beginning.

When Californians voted to approve Proposition 215 to allow medical marijuana, the word “nullification” was not part of the argument, but it most certainly was the result. Opponents often cited the Constitution’s “supremacy clause,” saying the state had no authority to violate federal marijuana laws. But, Californians voted to violate those laws by the millions. And, when the Supreme Court ruled in the 2005 Gonzales v. Raich case that state-level medical marijuana laws were, in essence, illegal, dispensaries around the state didn’t start closing shop.

In fact, by 2005, there were nine other states that had joined California in passing medical marijuana laws. After the supremes told the country that such laws were a big no-no, how many were repealed? Zero. And since then, another five states – most recently, Arizona – have joined up.

Think about that. There are now 15 states actively defying Congress and the Supreme Court – and they’re getting away with it. This, more than anything else, is what nullification is: any action which results in federal law(s) being rendered nearly unenforceable.

Green Door Hydro, Los Angeles

When I took a bike ride around my neighborhood in downtown L.A. the other day, I didn’t find a single Drug Enforcement Agent shutting down an arts district grow shop. A recent trip to Venice confirmed my hunch that there are plenty of businesses and individuals openly nullifying federal laws with dispensaries galore. A visit to the Bay Area last fall verified the same.

But yet, how often does one hear a legal scholar or a political pundit spending time and energy on how these pot-dealers and pot-smokers are bringing chaos to America?

How often do you hear that this active nullification of federal drug laws is done by people who hate President Obama for being black? I’ll assume you’ve that heard just about as much as I have – never.

Medical marijuana isn’t the only issue where Californians have taken a lead in standing up to the feds. In 2006, when the Congressional Research Service released a report on “sanctuary cities” around the country, California was at the head of the pack, with more major cities on the list than any other state in the country.

Oddly enough, I haven’t heard about Washington, D.C., threatening to withhold highway funds. The national guard hasn’t been sent in to force these cities to comply with federal immigration laws. But yet, that’s what some claim will happen if health care nullification laws are passed today.

I doubt it. If today’s nullification proposals follow in the path of the left’s nullification of federal drug and immigration laws, it’s quite possible we’ll see the same kind of results. The feds backing off.

The real question, of course, is this – will gay marriage advocates in Maine, health care nullification advocates in Idaho, gun rights activists in Oklahoma, and marijuana advocates in California ever realize that they’re actually on the same side?

They likely don’t agree on specific issues, but they agree with their actions; the most difficult and divisive issues need to be dealt with close to home, in their states. Either way, it’s good to be in California, where nullification is alive and well.

A landmark decision for all Californian’s quietly made history on August 20th in a Santa Cruz courtroom.

For the first time since 1996, when the Compassionate Use Act was passed, the federal authorities have been charged with violating the 10th Amendment for harassing medical marijuana patients and state authorities.

The case of Santa Cruz vs. Mukasey, was heard by U.S. District Court Judge Jeremy Fogel, who said the Bush Administration’s request to dismiss a lawsuit by Santa Cruz city and county officials, and the Wo/Men’s Alliance for Medical Marijuana (WAMM), wasn’t going to happen.

In a recent telephone interview with Alan Hopper, an ACLU counsel familiar with the case, I asked him what came next?

”The plaintiff will get a get a court-ordered discovery document that will allow them to get documents, and even depositions, from the federal authorities to support their claims,” he explained.

So now it’s the city, county, and WAMM’s turn to prove their case against the federal government. The court has recognized a concerted effort by the federal government to sabotage state medical marijuana laws, which violates the U.S. Constitution. The significance of this ruling, the first of its kind, cannot be overstated.

California voters may finally get what they asked for a dozen years ago. When the court said that the federal government had gone out of its way to arrest and prosecute some of the most legitimate doctors, patients, caregivers, and dispensary owners that had been working with state and local officials, it finally drew a line-in-the sand.

An example of the federal authorities violations was their pursuit of WAMM. This non-profit group has been around for many years, and has been fully supported by the city and county of Santa Cruz. They have been referred to, by officials, as the model medical marijuana patient’s collective.

The group was functioning so smoothly that the city even allowed them to hold regular meetings to distribute marijuana to its patients on the steps of city hall! The federal agents still went after them, which brought about this court decision.

When the ACLU filed this lawsuit to stop them from targeting medical marijuana providers and patients, they opened a door that may finally lead to no federal interference in California’s medical marijuana law.

We must not forget that medical marijuana brings in about $100 million each year in tax revenue. Conferring total legitimacy to the law will allow this cash flow to continue, and hopefully, increase over time.

When the judge ruled the feds were threatening physicians who recommended marijuana, he set the stage for regaining patient’s rights. The ruling clearly pointed out that the feds were also threatening government officials who issue medical marijuana cards, and interfered with municipal zoning plans.

In the summation, the court found that, “There was a calculated pattern of selective arrests and prosecutions by the federal government with the intent to render California’s medical marijuana laws impossible to implement and therefore forced Californian’s and their political subdivisions to re-criminalize medical marijuana.”

In a recent column, I mentioned California’s Attorney General Jerry Brown had passed out an 11-page directive that all law agencies were to go by. I expressed concern that the federal authorities would ignore those guidelines, but upon finding out about this recent ruling I now have some cause for hope.

It sure sounded like Hopper was looking forward to the next phase, and he seemed confident that positive change lay ahead. Asked which presidential candidate would be more amenable to upholding medical marijuana laws, he cleverly replied that he thought they both would be willing to work for change. He could be right too. This is a year of change.

This on-going battle with the federal authorities ignoring California’s laws has been well-documented in the past. Why hasn’t there been more coverage for such an epic ruling? Its potential as breakthrough legislation is something all Californian’s should know about in my opinion.

The war against medical marijuana hasn’t been won yet, but this could be the breakthrough everybody’s waited for. At the core of the war waged by the federal government against the voter’s will, is the failed War on Drugs by the Bush Administration. It’s about time someone told them to back off.

As It Stands, we can score this as a successful round for state’s rights.

For many years, presidents have been assuming more and more power for themselves and for the federal government, but California has been taking the lead recently in the battle for States Rights against this growth Federal power.

Thomas Elias notes this trend in his recent Pasadena Star-News article, “California a key states’ rights battleground.” 

Here’s an excerpt:

the states’ rights argument has been essentially turned on its head under a U.S. Supreme Court decision and a series of federal administrations that have tried to allow citizens – and some wild animals – fewer rights than California and other states want to give them.

Add in environmental issues, where this state leads the fight for tough cutbacks on greenhouse gas emissions and mitigation of worldwide climate change while the national government pushes the doctrine that federal laws and decisions should always take precedence over state decisions.

But resistance is alive and well – in some situations, at least – in the State of California.  Medical Marijuana continues to “grow” – so to speak, but other issues are moving to the forefront as well.  Elias writes:

The latest battle involved the U.S. Navy vs. California gray whales and the many dolphins that inhabit Pacific Ocean waters off California.

The state Coastal Commission and private wildlife protection organizations sued the Navy a year ago, trying to get warships to shut down some powerful submarine-detecting sonars during training exercises in the strait between Santa Catalina and San Clemente islands. Use of that sonar has been associated with deaths of the big marine mammals that pass through those waters during annual migrations.

The reality here is that the Constitution doesn’t authorize the federal government to intervene in such local affairs.

A States Rights/10th Amendment viewpoint would be much different than what we see today.  Each state could determine the policies that were best for their own areas…and would be held responsible for the outcome of their action(s).

Elias concludes:

Under an administration willing to claim almost anything – including an absurd assertion by Vice President Dick Cheney that his office is not part of the executive branch of government despite having assigned space in the White House – to increase its power, it is vital for states to fight back against wrongheaded federal actions.

That’s why California is now a key battleground in an entirely new states’ rights battle, one that will continue for many years if presidents keep wishing they were dictators.

As California succeeds, hopefully we’ll see other states follow their lead.

Recently, he called upon the principle of States Rights in advocating drilling for oil off the coasts of California and Florida.

But, isn’t he violating this principle at the same time he’s invoking it?

Debra J. Saunders made a good point in the SF Chronicle:

Why does McCain believe in states’ rights for Californians and Floridians, but not Alaskans, who support drilling in ANWR? I asked Holtz-Eakin. His answer: Some places are simply too “special.”

And, some places just don’t have the votes to make much of a difference – so why pander to them, right?

The important point here is that McCain, once again, isn’t talking about States’ Rights at all.  He’s talking about power.  More power for the federal government, and more power for him.

What?

Well, it’s quite simple.  McCain isn’t calling for the States to have a right to make their own environmental regulation at all.  He just sees a political reality – that prices for gas are high – and he’s working to exploit that for votes.

His plan is all about “Washington offering financial incentives to get coastal states to agree to new offshore exploration.”

Think about that for just a moment.

What McCain calls “states rights” is, in fact, just the opposite.  He’s advocating taking money from some states, and giving it to others.  Or, more practically, he’s going to take your tax money, and give it to some huge corporation to do business in California and Florida.

That’s not even close to being states rights.

Taking money from one group and giving to another.  If he weren’t a politician, wouldn’t we say that he was advocating stealing?

A States Rights/10th Amendment viewpoint would be much different.  Each state could determine the policies that were best for their own areas…and would be held responsible for the outcome of their action(s).

This does not mean that they’d suddenly be entitled to your money, or the money of people in any other state.

Once again, McCain clearly misses the point, and is only pandering for more votes and more power.

In an effort to defend Washington’s tough vehicle emissions standards law, Attorney General Rob McKenna today announced Washington state will join 14 other states in intervening in a California lawsuit filed earlier today.

The lawsuit filed today in the 9th Circuit Court of Appeals challenges the U.S. Environmental Protection Agency’s decision to deny California’s request for a waiver to implement its greenhouse gas emissions standards.

“The state of Washington followed California’s lead in adopting standards for vehicle emissions with the understanding California’s request for a federal pre-emption waiver would be granted in a timely manner,” McKenna said. “Now after nearly two years of waiting, EPA has denied the waiver, leaving states frustrated in their ability to address climate change concerns for their residents.”

The Clean Air Act generally preempts states from adopting their own vehicle emissions standards with the exception of California because of its efforts to address long-standing air pollution problems.  The Clean Air Act allows other states to adopt California’s standards as long as those standards are identical to California’s.

California adopted landmark vehicle emissions standards in 2005 and filed its waiver request in December 2005. Since then, 16 other states, including Washington, have also adopted or are considering adopting these standards.

None of these state laws may go into effect until California obtains its waiver of preemption from the federal government.

On Dec. 19, 2007, EPA Administrator Stephen Johnson notified California Gov. Arnold Schwarzenegger of EPA’s decision to deny the state’s waiver request.  Johnson stated he believed the problem of greenhouse gas emissions extends beyond state boundaries and calls for a national solution.  He also found that California’s standards were not needed “to meet compelling and extraordinary conditions.”

Today’s lawsuit, which seeks to reverse the EPA decision, was filed in the United States Court of Appeals for the Ninth Circuit.  The states or state agencies intervening in the suit are: Massachusetts, Arizona, Connecticut, Delaware, Illinois, Maine, Maryland, New Jersey, New Mexico, New York, Oregon, Pennsylvania Department of Environmental Protection, Rhode Island, Vermont, and Washington.

The Constitution was written under a simple principle – positive grant.  In short, what this means is this: The federal government is authorized to exercise only those powers which are specifically given to it in the Constitution.

Everything else is “reserved to the States, respectively, or to the People.”

Period.

The Tenth Amendment Center supports McKenna’s position – the federal government has no constitutional authority, whatsoever, to prevent individual states from implementing their own regulations.

States rights have no bearing when thugs shut down businesses, destroy families, and throw people in jail.

From the MSNBC report:

Federal authorities contend that marijuana is an illegal drug, no matter how it used or who uses it, and they don’t honor the state laws.

It’s quite simple.  Federal “authorities” don’t care what your local laws are, don’t care what your personal choices are and don’t care what reason you have for your choices.

All they care about is their own power.  Period.

But, there’s nothing, whatsoever, in the US Constitution which permits the federal government to wage a “drug war.”

The Constitution was written under the principle of “positive grant,” which means that the federal government is authorized to exercise only those powers which are specifically listed in the Constitution.  The rest, as the 10th Amendment states, are to be “reserved to the States, respectively, or to the People.”

A simple reading of the Constitution would make it quite clear to anyone, that there’s nothing mentioned about drug wars, drugs, marijuana, plants, or anything of the like.

Thus, it’s not only the federal marijuana laws that are unconstitutional, but the entire federal “war on drugs.”

It’s time to bring this multi-billion dollar attack on your liberty to an end.