New Maryland legislation would ban cooperation with federal marijuana prohibition

At the very steps of the “ten miles square” known as Washington, DC, Maryland has a bill before its legislature that would refuse cooperation with enforcement of federal “laws” against marijuana.

In the first use of the “anti-commandeering doctrine” to block federal drug laws a bipartisan group of Delegates Don H. Dwyer, Jr. (R), Curt Anderson (D), and Michael D. Smigiel, Sr. (R) introduced HB1016.

The bill prohibits enforcement of any federal law or regulation prohibiting cannabis by any state agency, political subdivision of the state, or any agent or employee of the state or political subdivision of the state acting in their official capacity, or a corporation providing services to the state or political subdivision.

Violation of this bill if enacted by any state employee or agent could result in their immediate termination from employment and further block them from ever working for the state or political subdivision of the in the future. Violation by a political subdivision of the state would result in state grant funds being withheld in the following year following a judicial determination. Furthermore, any person or corporation providing services to the state or any political subdivision of the state that violates this proposed new law would be, “forever and ineligible to act on behalf of, or provide services to, the state or a political subdivision of the state.”

Maryland walked down this path once before. During the Prohibition era, the state refused to enforce alcohol laws, as documented on an article by David J. Hanson, Ph.D.

“Under National Prohibition, both the federal government and the states shared responsibility for enforcing alcohol laws. Maryland was the only state in the union that refused to pass a law to enforce the unpopular law. The governor throughout the entire period of Prohibition (1920 through 1933) opposed it,” Hanson wrote.

In fact, during a 1925 address to Congress, Maryland Sen. Bruce stated that the lack of state enforcement essentially left the 18th Amendment little more than words on paper.

“National prohibition went into legal effect upward of six years ago, but it can be truly said that, except to a highly qualified extent, it has never gone into practical effect at all,” he said. “It (prohibition) has brought about close working relations between the bootlegger and thousands of the most intelligent and virtuous members of American society who feel no more compunction about violating the Volstead Act than the Free Soiler did about violating the fugitive slave law…”

Maryland wasn’t the only state to refuse state cooperation. While other state initially passed state enforcement laws, many including New York, Montana and Wisconsin repealed their enabling laws. Ultimately, with Maryland leading the way, state noncompliance led to the repeal of the 18th Amendment. The Wisconsin historical society documented the role of state noncooperation in repealing alcohol prohibition.

“In 1929, voters repealed Wisconsin’s prohibition enforcement law, the Severson Act. Pledging loyalty to the ‘will of the people’ as expressed in these referendums on alcohol, Wisconsin Senator John J. Blaine proposed a constitutional amendment for the repeal of prohibition. The U.S. Senate modified Blaine’s resolution to satisfy antiprohibitionists and passed the measure without delay. On December 5, 1933, the Twenty-first Amendment was ratified and national prohibition ended. “

In a similar way, state refusal to cooperate with federal marijuana laws will ultimate nullify the unconstitutional prohibition on cannabis. Note that it took a constitutional amendment for the feds to prohibit alcohol, leaving one to wonder why the feds can now magically prohibit a plant.

The best description of the legal principle HB1016 rests on is Mike Maharrey’s, States Don’t Have to Comply: The Anti-Commandeering Doctrine. As he states in his article this legal doctrine was applied by the Supreme Court in 1842 in the first of four legal opinions by the Supreme Court. The opinion by the Supreme Court in those four cases basically boil down to this, that if the federal government passes a law or regulation it must supply the means for its enforcement it cannot commandeer or force the states to use their resources to enforce federal laws.

In the first case where this doctrine was applied was  Prigg v. Pennsylvania (1842), Justice Joseph Story wrote:

“The states cannot… be compelled to enforce them (laws or regulations); and it might well be deemed an unconstitutional exercise of the power of interpretation, to insist that the states are bound to provide means to carry into effect the duties of the national government, nowhere delegated or entrusted to them by the Constitution.”

ACTION ITEMS

For Maryland Residents: Contact your State Delegate HERE and respectfully demand that they support and co-sponsor HB1016 to legalize marijuana, and reject unconstitutional federal laws banning a plant.

Contact your State Senator and urge them to introduce companion legislation in the State Senate. You can find their contact information by clicking HERE.

For Other States: Call your legislators and demand that they follow the lead of Maryland, Missouri, New Hampshire and other states by introducing a bill that would legalize marijuana. You can find your legislators contact information by clicking HERE.