by Mike Maharrey

Note: The following editorial was submitted to the Star-Ledger for consideration. It chose not to run it.

A few weeks ago, New Jersey Assemblywoman Allison Littell McHose (R-Sussex) introduced A4155, a bill that would render the Federal Patient Protection and Affordable Care Act null and void in in the state of New Jersey and make it a crime to enforce the act within the state’s borders.

The editorial board of the Star-Ledger published an op-ed addressing the bill on June 23. The board apparently objects to states stepping in to limit overreaching federal power.


The Star-Ledger editorial board called the McHose’s proposed legislation, “health care derangement syndrome.”

The board bolsters its position through alleged constitutional scholar Frank Askin, director of the Rutgers School of Law Constitutional Litigation Clinic.

“What kind of lunacy?” he asks.

The board goes on to write, “On one level, the tactic of making it a crime to follow the law speaks of an Alice-in-Wonderland approach, where up is down and black is white. On another level, it reveals an ignorance about the U.S. Constitution, which clearly defines the supremacy of federal law.”

Which leads me to ask the following question: how is it that this same editorial board wrote an op-ed just four days earlier taking New Jersey Gov. Chris Christie to task for failing to implement the state’s medical marijuana law?

“The state’s medical marijuana program is on life support now, thanks to Gov. Chris Christie’s latest bit of bureaucratic sabotage. “

It seems the folks at the Star-Ledger want Christie to move forward with the medical marijuana program, even while acknowledging that it clashes with federal law.

To steal a phrase, what kind of lunacy?

The Star-Ledger op-ed board rationalizes that it’s OK to defy the feds in the case of medicinal cannabis because Attorney General Eric Holder issued a memo back in 2009 indicating the DOJ would not aggressively prosecute medical marijuana users.

“In other words, leave grandma alone and get busy solving real crimes,” the board writes.

But a memo doesn’t change the law. Is the Star-Ledger suggesting New Jersey should simply ignore the supreme law of the land – that it should step up and nullify a federal act?

Sounds like an Alice-in-Wonderland approach where up is down and black is white to me.

The Star-Ledger editorial board apparently holds to a sad, but all too familiar constitutional philosophy – follow the Constitution on some issues, sometimes, with multiple exceptions and lots of excuses.

In fact, lawmakers in the State of New Jersey stand squarely within their rights nullifying both federal marijuana and health care laws, Askins’ gross misapplication of the supremacy clause not-withstanding.

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land;”

Askins completely ignores a key phrase in the supremacy clause when he insists the state cannot pass a law nullifying an unconstitutional act. Only acts passed in pursuance of the Constitution stand as law. An unconstitutional act, by definition, is illegal, null and void. James Madison wrote that “in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil.”

The Constitution grants no power to Congress to regulate a plant grown and used within the borders of a state. And it grants Congress no power to create a national health care system. Acts attempting to do so stand outside the federal government’s enumerated powers, are unconstitutional, and should not be followed.

The Star-Ledger editorial board rightly advances Madison’s principle when it comes to medical marijuana, recognizing the lunacy of prosecuting a sick person for seeking relief from pain. But the same board hypocritically chastises those seeking to unburden New Jersey residents from an overreaching intrusion into their lives when it comes to health care choices.

It’s time for America’s lawmakers, politicians and political pundits to stop advancing political agendas through cafeteria style constitutionalism and follow the Constitution every issue, every time, no exceptions, no excuses.

Mike Maharrey

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