Many marijuana activists are looking to Congress to extend waivers to states that have legalized pot. The idea is that states can only be protected from the DEA if Congress passes a law giving states immunity from federal drug laws:

That’s one of the conclusions of a survey on marijuana legalization recently commissioned by Third Way, a centrist think tank. Similar to other recent polling, the survey found Americans split on the question of full legalization, with 50 percent supporting versus 47 percent opposed. But the poll found that six in ten respondents said that states, and not the federal government, should decide whether to legalize marijuana. And 67 percent of Americans said Congress should go further and specifically carve out an exemption to federal marijuana laws for states that legalize, so long as they have a strong regulatory system in place.

There’s just one problem here. This is completely unconstitutional. I have nothing to gain personally from legalized pot. But I believe it should be legalized for numerous other reasons, not the least of which is the consequences of the interminable drug war. So this drive for Congress to get involved in waivers is quite troubling to me.

Consider the reality of the 10th Amendment. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” A Congressional waiver on legalized pot is basically the opposite of the 10th Amendment. It used to be that the states gave waivers to Congress concerning matters of statewide concern. The DEA has no authority in a state concerning the enforcement of law. In fact, all federal agencies are subservient to state law enforcement in Constitutional terms.

In reality, all that states really have to do is refuse to allow the DEA to enforce drug laws. Tell the DEA to get out of dodge. If you have statewide legalized pot, you don’t need Congressional approval, and you don’t need to do what the DEA tells you to. Because the powers not delegated to them by you are reserved to you. When you give up those powers for Congress to decide, you have already lost the war.

But, a caveat. There is one main reason why states have to submit to federal law enforcement: federal money. So perhaps, if people really care about returning sovereignty to states and local governments, they should work first on rejecting federal funding for the states. Try that out, and see how far you get with local officials. Hint: you’re going to experience some resistance.