Meanwhile, on the marijuana front, the people of states like Colorado are engaging in an odd, 21st century variety of nullification. Unlike the 19th century John Calhoun version, state laws legalizing marijuana don’t purport to neutralize the still-extant federal laws banning cannabis. But the state, and millions of Coloradans, are simply ignoring the federal law and, in essence, daring the feds to do something about it.
State laws, of course, can’t neutralize federal law, as the Constitution’s Supremacy Clause makes clear. But, bloated as it is, the federal law enforcement apparatus isn’t up to the task of prosecuting all the marijuana users in Colorado. And if it tried, it would have to bring them to trial before juries in Colorado, who would probably acquit most of them. There would also be massive political backlash, amplified in the coming 2014 and 2016 elections because Colorado is a swing state. And in response to Colorado’s example, other states look likely to follow suit, making the feds’ problem much bigger.
So, despite all the federal laws on the books, Colorado has de facto nullified them, and started a process that may very well snowball, all without directly attacking the federal laws, or the federal government, at all. Meanwhile, millions of Americans may be in the process of effectively killing Obamacare simply by staying home.