Opinion Editorial
June 22, 2006

By Mike Krause

House Republicans will soon get a chance to cast a vote in favor of states’ rights, and against an over-reaching federal regulatory apparatus. In other words, two of the main principles Republicans claim to champion. That the issue at hand is medical marijuana, and Colorado has a voter-approved medical marijuana law, makes it all the more powerful an indicator of what Colorado Republicans really think about federalism.

Sometime next week, the House of Representatives will take up H.R. 2862, an appropriations bill that includes funding for the U.S. Department of Justice. For the fourth year in a row, Representatives Dana Rohrabacher (R-CA) and Maurice Hinchey (D-NY) will offer an amendment (commonly known as the Hinchey-Rohrabacher Amendment) that would forbid the Department of Justice, and thus the Drug Enforcement Administration, from spending any funds (read tax dollars) to undermine, or otherwise interfere with state-wide medical marijuana laws.

In other words, federal agents, or local police acting as the servants of federal agents, would no longer be able to kick down the doors and arrest, or otherwise harass, medical marijuana providers and users acting under color of state law.

Unfortunately most Republicans have in the past sided with the well being of the federal drug war bureaucracy. In June of last year, the House soundly defeated Rohrabacher-Hinchey, with only 15 Republicans voting in favor of the Amendment.

Among them were Colorado’s Tom Tancredo and Bob Beauprez (Democrats Dianne DeGette and Mark Udall also voted for the Amendment) so at least half of Colorado’s House Republicans grasp federalism.

In May of last year, in Gonzales v. Raich, the U.S. Supreme Court ruled that the interstate commerce clause — Article I, section 8 of the U.S. Constitution granting Congress the power to “regulate Commerce among the several States” — gives Congress, through the federal Controlled Substances Act, authority to ban even the cultivation and personal use of small amounts of marijuana for medical purposes entirely within the borders of a state such as Colorado, where medical marijuana has been voter approved.

So state medical marijuana laws remain valid, but marijuana also remains illegal for any purpose under federal law. This leaves medical marijuana providers and users in Colorado in legal limbo…and at the mercy of the whims of federal drug agents.

But forget for the moment that it was marijuana at issue. According to the ruling, the scope of Congress’ authority under the interstate commerce clause now includes noncommercial, wholly intrastate economic activity that might affect commercial, interstate economic activity in some way.

The court defined such economic activity as “the production, distribution, and consumption of commodities.” In other words: everything.

There are some twenty-three American states which have the initiative process, and in just a few short years, over a third of the initiative states–including Colorado–have approved medical marijuana.

So it should be more than obvious to a majority of Republicans in Congress–including those from states without such laws–that medical marijuana is a widely-acknowledged and legitimate states’ rights matter.

Besides which, having Washington D.C. set policies for all fifty states, whether they possess shared values or not, is precisely the kind of thing Republicans howl about when it is Democrats setting the agenda.

According to his office, Congressman Beauprez’ yes vote did not endorse the use of marijuana, “but does respect states’ rights and the will of the people of Colorado.”

And indeed, regardless of the personal feelings of lawmakers, irrational federal laws, or the Supreme Court’s expansive view of the commerce clause, medical marijuana is exactly the kind of experimentation that a federalist form of government is supposed to allow.

As a result of the Raich decision, Colorado’s ability to implement policies that may conflict with the desires of the federal regulators will be determined not by constitutional limitations under the interstate commerce clause, but rather by Congressional action, thus requiring Republican lawmakers to consistently practice the principles to which they lay claim.

The upcoming vote on Rohrabacher/Hinchey will give us a good idea of which Republicans–including those in Colorado’s Congressional Delegation–are up to the job.