Political Hay

Obama’s Crazy Quilt Federalism

Perhaps Arizona should get into the medical marijuana business.

By 7.13.10

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The Obama administration claims that its legal challenge to Arizona's new immigration-enforcement law is motivated entirely by the administration's strict adherence to the Constitution. (Don't laugh.)

Arizona's law is an encroachment on the federal government's rightful jurisdiction, the administration argues. As Attorney General Eric Holder said, "It is the responsibility of the federal government to decide immigration policy."

Let's ignore the obvious rebuttal that the Arizona law actually doesn't supersede or even contradict federal law, but rather allows local and state law enforcement officers to assist the federal government in upholding its own policies. It isn't an immigration law, it is an immigration-enforcement law. Let's instead examine the claim that the Obama administration must act because it cannot tolerate a state asserting authority rightfully reserved for Washington.

In October, the Obama administration responded to the multiplication of medical marijuana laws throughout the fruited plain by abdicating its authority to enforce the federal law that criminalizes the use of marijuana.

"It will not be a priority to use federal resources to prosecute patients with serious illnesses or their caregivers who are complying with state laws on medical marijuana," Holder said at the time.

White House Press Secretary Robert Gibbs refused to say "what states should do" about medical marijuana.

With multiple states defying Washington's authority to regulate marijuana use, the Obama administration stepped back, allowing state laws on the medical use of marijuana to become the supreme laws governing that behavior in the country. The Supremacy Clause be damned; Obama was not going to assert Washington's authority on that issue.

On June 30 of last year, the Obama administration granted California and 13 other states a waiver to set stricter greenhouse gas auto emissions standards than were allowed under federal law. The Bush administration had denied the waiver. Although the EPA press release announcing the decision asserted that it was based on "science," it was clearly a political move.

Obama was in office less than a week when he ordered the EPA to reconsider the Bush administration's waiver denial. As the New York Times put it at the time, "The directive makes good on an Obama campaign pledge and signifies a sharp reversal of Bush administration policy. Granting California and the other states the right to regulate tailpipe emissions would be one of the most emphatic actions Mr. Obama could take to quickly put his stamp on environmental policy."

The Times went on:

While it stops short of flatly ordering the Bush decision reversed, the agency's regulators are now widely expected to do so after completing a formal review process.

Once they act, automobile manufacturers will quickly have to retool to begin producing and selling cars and trucks that get higher mileage than the national standard, and on a faster phase-in schedule. The auto companies have lobbied hard against the regulations and challenged them in court.

One of the automakers' arguments against granting the waiver was that it could result in 50 different emissions policies with which manufacturers would have to comply.

"William L. Kovacs, a vice president for environmental and regulatory issues at the United States Chamber of Commerce, said free-for-all federalism was bad for business and would lead to a 'patchwork of laws impacting a troubled industry,'" the New York Times reported in January of 2009.

That is the same argument Attorney General Eric Holder made against Arizona's immigration law. He even employed the same word -- "patchwork" -- Kovacs did.

"Setting immigration policy and enforcing immigration laws is a national responsibility," Holder said in the press release announcing the lawsuit. "Seeking to address the issue through a patchwork of state laws will only create more problems than it solves.

The Obama administration is worried that allowing local police to arrest illegal aliens will somehow overburden federal law enforcement officers, but it isn't concerned that allowing people to grow and smoke marijuana will overburden federal drug enforcement officers? It is worried about a patchwork of immigration enforcement laws (as opposed to immigration laws), but not a patchwork of environmental regulations that directly affect interstate commerce?

Obama isn't the slightest bit concerned about a "patchwork" of state laws that contradict and supersede federal authority. He is reaching for a legal argument to justify his desire to undo the Arizona law, which he simply dislikes.

A little more than a week after Obama was sworn in as president, the New York Times had a story declaring that the new president had a new view of federalism. Dubbed "progressive federalism," this new view asserted that Washington should not enforce its regulatory authority in all areas, but should treat its authority as "a floor and not a ceiling."

That is, Washington should set tough regulatory standards, then let states pass even more stringent regulations that the left is unable to get through Congress. The selective approach is designed to replace uniformity with ad-hoc approval of liberal policies and disapproval of non-liberal ones. That is exactly what the Obama administration is doing. 

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About the Author

Andrew Cline is editorial page editor of the New Hampshire Union Leader. You can follow him on Twitter at @Drewhampshire.