Keeping the Republic - Christine Barbour

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to live under the U.S. government. At the same time, far fewer of us will live in the same state or city throughout our lives. We may move for jobs, for climate, or for a better quality of life. When we relocate, we can often choose where we want to go. Businesses also move—for better facilities, better tax rates, a better labor force, and so on—and they are also in a position to choose where they want to go. This mobility of people and businesses creates incentives for competition and cooperation among states and localities that influence how they operate in important ways. Although we do not conventionally consider the decision to move to be a political act, it affects policy just as much as more traditional forms of citizen participation.

      In Your Own Words

      Discuss whether federalism fosters or limits citizen participation in government.

      Let’s Revisit: What’s at Stake . . . ?

      As we have seen in this chapter, the issue of what powers go to the federal government and what powers are reserved to the states has been a hotly contested one since the founding, and one that has no clean, crisp, right answer. As the country and the composition of the Supreme Court have changed, so too have interpretations of states’ rights and federal power. All of that means the issue of medical marijuana use, which currently is legal in more than half the country, and recreational marijuana, which is legal in nine states plus the District of Columbia, is an excellent example of the messiness that can characterize federal issues in the United States, where national law dictates that any kind of marijuana is illegal.

      The states and the national government both have a stake in protecting their turf against the other when it comes to marijuana laws. One of the chief virtues of federalism is that it gives the states the flexibility to experiment and to respond to their citizens’ demands for policy change. Policies are frequently incubated in the states before they are ready for launching on the national stage, or before the national stage is ready to receive them. The trouble when it comes to legalizing marijuana—medical or recreational—is that there is already a binding federal policy in place. The federal government under the George W. Bush administration claimed that its law trumped state laws because of the commerce clause, the part of Article I, Section 8, of the Constitution that gives Congress the power to regulate commerce among the states. The Supreme Court backed that view in 2005, voting six to three in Gonzales v. Raich, a case concerning a California medical marijuana law.31 Defenders of the laws responded that growing, selling, or smoking marijuana for personal medical use within a single state has nothing to do with interstate commerce. Fourteen states passed laws decriminalizing the use of marijuana for medical purposes by prescription, and slowly, federal law swung in their direction. In May 2009 the Supreme Court refused to hear a case challenging the California law, essentially handing a victory to medical marijuana proponents, and that October, the Justice Department, then under the Barack Obama administration, signaled that, as long as use was consistent with state laws, marijuana use by those holding a prescription for it would not be prosecuted.32 Reading these cues, more states followed suit, only to see the Trump administration rescind the Obama policy, although the policy’s current status remains unclear.

      State law can conflict, of course, not just with national law but with the laws of other states, and here it is the states that have a stake in enforcing their own marijuana laws—either because their citizens deeply disagree with the laws of other states or because there is profit to be had in prosecuting people from other states who violate the law. As the Idaho example in What’s at Stake . . . ? suggested, states with different laws and policies can provide treacherous terrain for their citizens, and nice cash cows for the states collecting fines for violations of their laws. The flip side of federalism’s ability to permit experimentation and innovation is that on some issues you can end up with fifty different policies regulating the same behavior. As the Idaho example indicates, citizens from one state can be caught flat-footed when visiting another if they don’t take care to learn the laws of their destination.

      It is not just states that have a stake in setting their own laws on things like marijuana policy; businesses also have a stake in what states do and in resolving the legal confusion that can result from federalism. As is evident in the experience of the brothers who grow nonintoxicating marijuana for medical purposes, but who faced barriers to transporting the medicinal oil across state lines, businesses can face expensive and exasperating delays and roadblocks when they have to accommodate fifty separate state laws. Throw the federal law into the mix as well, and federalism can be an entrepreneur’s nightmare.

      Finally, citizens have a stake in how the states manage their policies on marijuana. For some supporters of the medical marijuana laws, what is at stake is the ability of ill patients to receive the most effective treatment possible. But they are allied with those who want to put limits on national power, some of whom might not approve of medical marijuana on its own merits. In his dissent in Gonzales v. Raich, Justice Clarence Thomas said, “No evidence from the founding suggests that ‘commerce’ included the mere possession of a good or some purely personal activity that did not involve trade or exchange for value. In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana.” If the national government can regulate this, it can regulate anything.33

      Opponents of the medical marijuana laws say that as long as the Court has ruled that the state laws violate the commerce clause, the national law should be enforced. Further, some argue that it does touch the issue of interstate commerce because the provision and purchase of medical marijuana “affects the marijuana market generally,” and they worry that if the federal government cannot regulate this, then perhaps the government will be hampered in other areas, like child pornography, as well.34

      That there is no clear constitutional resolution of such issues; that it is possible for the Court to produce conflicting rulings on this policy; and that the Bush, Obama, and Trump administrations would take such variable stances on it explains both how our federal system has found the flexibility to survive so long and so well, and why the debates over where power resides can be so bitterly fought.

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      Review

      What Is Federalism?

      Although the founders of the U.S. Constitution could have created a unitary system (87) or confederal system (87), they instead established a government based on federalism (84), in which some powers are held by the national government and some by the states; others, called concurrent powers (85), are held by both. Political scientists once held to a theory called dual federalism (86) that considered the powers of the two levels to be separate and distinct but now understand their powers to be interrelated, a view known as cooperative federalism (86). The Constitution gives a decisive amount of power to the national government via the enumerated powers of Congress (85), which concludes with the necessary and proper clause (85) and the supremacy clause (85).

      Federalism reflects a continually changing compromise between advocates of a strong national government and advocates of strong state governments. The balance of power adopted between central and subnational governments directly affects the national government’s ability to act on large policy problems and the subnational units’ flexibility in responding to local preferences. Although power was concentrated at the national level for much of the twentieth century, we are currently in a phase known as devolution (84)—shifting power from the national level to the states.

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