PITTSBURGH, Pa. (Dec. 28, 2015) – Last Monday, the Pittsburgh city council voted to decriminalize marijuana within the city limits, a big step to effectively nullifying both state and federal law.

According to the Pittsburgh Post-Gazette, under the new ordinance, city police will no longer arrest people caught in possession of up to 30 grams of marijuana or 8 grams of hashish. Instead, police will levy a fine of up to $100. In the case of minors, officers will notify parents or guardians of the offense, and they must pay the fine.

The measure passed by a 7-2 vote. Mayor Bill Peduto pledged to sign the bill.

According to the Post-Gazette, “supporters say that’s better than charging suspects with a misdemeanor criminal offense, which can saddle defendants with a potentially job-killing rap sheet and burden police with paperwork.”

Philadelphia passed a similar ordinance in 2014.

These ordinances represent a kind of local version of the anti-commandeering doctrine.

The Supreme Court has long held that the federal government cannot force states to assist with implementation of enforcement of federal acts or programs. When states refuse to cooperate with federal enforcement, it makes it extremely difficult for the feds to assert their will. This has proved particularly true when it comes to marijuana. State legalization of weed and the end of state enforcement nullifies federal prohibition in practice. FBI statistics reveal law enforcement makes approximately 99 of 100 marijuana arrests under state, not federal law. The federal government simply lacks the resources to enforce its marijuana laws on its own. We’ve seen this play out in every state that has legalized marijuana for medical or general use.

According to Duquesne University law professor Bruce Ledewitz, the same principle plays out in the relationship between the state of Pennsylvania and its political subdivisions. He told the Post-Gazette the Pittsburgh’s bill doesn’t run afoul of state law because it still leaves police the option to file criminal charges. “The state doesn’t prohibit municipalities from parallel punishments” as long as they don’t weaken state law,” he said.

In other words, other police agencies remain free to enforce criminal charges, while Pittsburgh police do not. Pittsburgh police will stand down when it comes to charging people with a crime for possession of marijuana, but they will not interfere with state enforcement.

Strategically, this kind of local action can have an impact at the state level in the same way state action has impacted the feds. If enough cities and counties in Pennsylvania decriminalize marijuana, it could conceivably nullify state law to at least some degree. As more and more political subdivisions implement similar policies, it will increase pressure to change the law at the state level. When the state decriminalizes marijuana, it will nullify federal prohibition in effect, just as it has in other states.

This is a powerful strategy we can use to rein in federal overreach with a total bottom up approach, starting at the local level, and then working up through the state, ultimately eroding federal power completely away.

Mike Maharrey

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