The Colorado House of Representatives voted 56-7 on Wednesday to pass legislation mandating that “the state, a state agency, or an agency of a political subdivision of the state shall not knowingly assist or aid a federal agency or agency of another state in arresting a Colorado citizen for committing an act that is a Colorado constitutional right.”
It is believed that the bill was introduced as a repudiation of the Trump administration’s repeated hints that it plans to crack down on states that have legalized recreational marijuana. In February, White House Spokesman Sean Spicer announced “I do believe that you’ll see greater enforcement of [federal law against marijuana].”
Unfortunately, the Colorado legislation does contain phrases that soften the power of state law, which defines a “right” as “a right enumerated in the Colorado constitution that has not been declared unconstitutional by a federal or Colorado appellate court.”
This leaves an opening for opponents of the state’s marijuana laws who could still gain state-level assistance if they can get a federal court to strike down the state’s marijuana provisions. Nevertheless, in the absence of such action, this legislation does appear to tie the hands of state and local police.
Extending Beyond Marijuana Laws
The Colorado legislation, however, is obviously broader than just the issue of recreational marijuana since it sets up opposition to any federal efforts to make arrests in the state based on federal laws that contradict rights protected by the state Constitution.
What other rights might be affected?
Like most (if not all) state constitutions, the Colorado constitution has its own bill of rights and its own protections for citizens throughout the document. In the Colorado bill of rights, for example, one finds provisions protecting the right “to alter and abolish their constitution and form of government whenever they may deem it necessary to their safety and happiness” and ”to keep and bear arms in defense of his home, person and property.”
The state constitution has its own version of the US Constitution’s ninth amendment stating: “The enumeration in this constitution of certain rights shall not be construed to deny, impair or disparage others retained by the people.”
Will Immigration Enforcement Be Affected?
And perhaps relevant to the current political debate is the provision stating that “Aliens, who are or may hereafter become bona fide residents of this state, may acquire, inherit, possess, enjoy and dispose of property, real and personal, as native born citizens.”
Like many Western states, Colorado in its early years was notably lax in terms of restrictions it put on new immigrations, and Colorado was one of 22 states and territories that allowed aliens to vote after the alien simply declares an intent to become a citizen. Not surprisingly, then, the provision guaranteeing property rights to aliens dates from the original 1876 Colorado constitution.
Could this provision then be used to refuse assistance to federal agents attempting to enforce federal immigration laws?
That remains unclear. What is clear, however is that it should be up to Coloradans (and not a bunch of non-Coloradans in Congress 1,600 miles away) as to whether or not local residents can be rounded up and imprisoned for doing things clearly protected by state law.
While it’s difficult to see how Colorado could prevent federal agents from acting in the state, it’s easy to simply prohibit state agents from assisting federal agents in attacking Colorado residents — thus using state tax dollars to carry out federal edicts.
The Colorado legislation is a step in the right direction, although it should be much stronger than it is. Prohibitions against assisting federal agents should extend to any right protected by the Colorado constitution, regardless of what federal courts have said on the matter.
In any case, the Colorado legislation represents a laudable shift toward greater state scrutiny of federal power and rejects the blanket assumption that federal agencies can simply do whatever they want in the states so long as the national legislature — or even an unelected bureaucrat — merely wishes it.
Indeed, the member states of the US would do well to follow the advice of Thomas Jefferson and get in the business of judging whether or not federal actions are constitutional at all, since, as Jefferson noted,
Whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force; that to this compact each State acceded as a State, and is an integral party, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of power delegated to itself, since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself…
And, finally, as must always be noted, even if the US constitution explicitly granted the federal government the power to regulate what people eat and smoke — which it doesn’t — states still ought to reserve to themselves the right to ignore, nullify, and countermand federal prerogatives. Just as the US Constitution’s provisions protecting slavery were always of zero moral legitimacy, and thus should have always been totally ignored by the states, so are many other explicitly-granted federal powers that remain in force today. Establishing something as ”constitutional” doesn’t make it respectable.
