Mississippi Agriculture Commissioner Andy Gipson (R) doesn’t understand his obligations under the Constitution. Gipson doesn’t want to run a state medical marijuana program. During a radio interview, he said he doesn’t see how his office can participate in a marijuana program given cannabis remains illegal under federal law.
Mississippi voters approved a ballot measure legalizing medical marijuana in November 2020. The State Supreme Court shot down the measure — along with the entire ballot initiative process. Since then, Mississippi legislators have been working on a medical marijuana bill.
In a letter to Attorney General Lynn Fitch (R) that he copied to state legislators, Gipson appealed to his oath of office to “faithfully support the Constitution of the United States…and obey the laws thereof.”
“[P]lease explain how this office or the Department [of Agriculture] could legally license the growing and/or processing of a marijuana crop in violation of federal law.”
There are two problems with Gipson’s argument that reveal his constitutional ignorance.
In the first place, it’s absurd to appeal to the Constitution to support an unconstitutional act.
Under the federal Controlled Substances Act (CSA) passed in 1970, the federal government maintains complete prohibition of marijuana. Of course, the federal government lacks any constitutional authority to ban or regulate cannabis within the borders of a state, despite the opinion of the politically connected lawyers on the Supreme Court. If you doubt this, ask yourself why it took a constitutional amendment to institute federal alcohol prohibition.
As many supporters of the Constitution said during the ratification debates, any federal act that violates the Constitution is “void.” Alexander Hamilton even joined the chorus in Federalist #78.
“There is no position which depends on clearer principles, than that every act of a delegated authority contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the constitution, can be valid.” [Emphasis added]
By enforcing an unconstitutional federal act, Gipson isn’t fulfilling his oath. He’s violating it. He is complicit in federal usurpation of power.
In the Virginia Resolutions of 1798, James Madison insisted that state officers were “duty-bound” to resist unconstitutional federal actions.
“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, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.” [Emphasis added]
By upholding federal cannabis prohibition, Gipson is abdicating his duty and violating the oath he claims to value.
In the second place, his oath does not legally require him to lift a finger to enforce federal law – constitutional or not.
Since 1842, the Supreme Court has consistently held that state and local governments are not required to enforce federal law or implement federal programs. Refusal to cooperate with federal enforcement rests on a well-established legal principle known as the anti-commandeering doctrine.
The anti-commandeering doctrine is based primarily on five Supreme Court cases dating back to 1842. Printz v. U.S. (1997) serves as the cornerstone. For the majority, Justice Scalia wrote, in part:
“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty”
No determination of constitutionality is necessary to invoke the anti-commandeering doctrine. State and local governments can refuse to enforce federal laws or implement federal programs whether they are constitutional or not.
Furthermore, the federal government can’t dictate state policy – even when that policy conflicts with federal policy. In Murphy v. NCAA (2018), the Court held that Congress can’t take any action that “dictates what a state legislature may and may not do” even when the state action conflicts with federal law. Samuel Alito wrote, “a more direct affront to state sovereignty is not easy to imagine.” He continued:
The anticommandeering doctrine may sound arcane, but it is simply the expression of a fundamental structural decision incorporated into the Constitution, i.e., the decision to withhold from Congress the power to issue orders directly to the States … Conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the States. The anticommandeering doctrine simply represents the recognition of this limit on congressional authority.
Per the Supreme Court, Gipson’s oath doesn’t require him to enforce federal law and it doesn’t require states to toe the line when it comes to federal policy. And given that federal marijuana prohibition is blatantly unconstitutional, he’s under no obligation to “obey” it. The law is constitutionally void. In fact, his oath to “support the Constitution” actually obligates him to resist federal enforcement of federal cannabis laws.
When Gipson says his “oath” prevents him from running a state medical marijuana program, he’s either ignorant or lying. He’s no principled constitutionalist. He’s just another partisan hack drug warrior trying to use the Constitution as political cover.
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