MEMPHIS, Tenn. (Oct. 6, 2016) – On Tuesday, the Memphis City Council voted to decriminalize marijuana within the city limits, a step toward effectively nullifying prohibition in practice.

Under the new ordinance, Memphis police will have the option of reducing the penalty for people in possession of a half-ounce of marijuana or less to a $50 fine or 10 hours of community service. The council narrowly passed the measure 7-6.

Late last month, the Nashville Metro Council approved a similar measure 35-3.

Under the new law, police will still have the option of arresting people caught with marijuana under state law. In that case they would face a Class A misdemeanor charge punishable by up to one year in jail and a $2,500 fine.

Some legislators at the state level don’t approve of Memphis and Nashville loosening the screws on marijuana users. Rep. William Lamberth (R-Cottontown) told The Tennessean he is “strongly considering” filing a state bill that would cut highway funds to cities that do not enforce state marijuana laws.

“That’s not a bill that I would want to file, but it’s a bill that I’m certainly willing to file if Nashville and Memphis continue down this extraordinarily reckless and unjust path,” Lamberth said.

Lamberth would make an excellent U.S. Senator with his burning desire to coerce reticent localities into doing his will. His tactic exactly follows the strategy the federal government uses to force states into doing all kinds of things they don’t want to. In fact, Lamberth doesn’t like it when the feds stick their nose in Tennessee’s business. He threw a fit over federal mandates relating to transgendered restrooms in schools, calling it “entirely a local issue.” One wonders why he feels to compelled to interfere with entirely local marijuana policy in Nashville and Memphis.

According to the Memphis Commercial Appeal, Tennessee state Rep. G.A. Hardaway, D-Memphis said if more local governments follow Memphis and Nashville’s lead, it will become increasingly difficult for the state to interfere.

“He said he expects the state’s other large metros — along with the suburbs and rural areas — to consider similar ordinances next year.”

Impact on State and Federal Prohibition

This local decriminalization effort represents 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.

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 Tennessee decriminalize marijuana, and the state legislature resists Lambreth’s efforts to interfere with local will, 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

Mike Maharrey

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