Thursday, December 13, 2012

Right to Work, Legalized Pot and the States vs. The Federal Government

The second week of December has been most interesting.  On Tuesday, Michigan Gov. Rick Snyder signed Michigan's first right to work law, officially banning the practice of forcing workers to pay union dues in the state.  What Michigan did was not really revolutionary--almost half of the states currently have right to work laws. What is extraordinary is that Michigan would pass such a law considering the long history of unions in the state.  What is also extraordinary is the national attention that this law has gotten.  I don't remember seeing all of this attention focused on Indiana in February when they chose to become a right-to-work state.  But since Tuesday, the focus of cable news has been the Michigan right to work law. Distraught union members have protested loudly, and sometimes violently; and Jimmy Hoffa Jr. has promised civil war. 
Amid all of the weeping and gnashing of teeth that has followed Michigan's passage of the right-to-work law, what appears to have largely been lost is that states have a clear right to determine the labor laws within their own borders.  The primary impetus for this law is that Michigan is losing business opportunities to its right-to-work neighbor Indiana.  In order to attract jobs and business opportunities, states have to compete, and right-to-work laws allow such competition.

As someone who has worked in a right-to-work state my entire life, I can tell you for a certainty that right-to- work laws do not destroy the worker--in fact they open up a lot of new opportunities.  For instance, in Texas, the right-to-work laws mean, in part, that a non-compete clause from an employment contract cannot, in most cases, be enforced against an employee.  In practical terms this means that the worker who has an opportunity to go to work for his employer's competitor for a higher wage can take advantage of that opportunity without any real fear of reprisal.  It also means that a person who want to open his own business competing in the same field as his current employer has the opportunity to do so without waiting out the non-compete time of the contract.  That means that he can take his contacts with him while they are still fresh and while he can still grow the business.  Right-to-work helps employers, but it also makes life much easier for workers who now have a lot more options.  And right-to-work states grow.  Texas' right-to-work laws--coupled with no state income tax--account in large part for the state's maintaining a solid economy even in the current difficult times.

What I find most interesting about the current uproar about Michigan's new law is that the discussion by opponents of the new law is not being framed in terms of Michigan's right to regulate its own labor laws.  Rather, opponents seem to believe that Michigan's new law is the outgrowth of a national conspiracy by conservatives in Michigan and other parts of the country to undermine the unions and by extension the Obama Administration. President Obama even spoke against the passage of the Michigan law saying that this new law was not about economics; it was only about politics and the "right to work for less money." Rather than acknowledging that the state has the same right as any other state to pass laws for the perceived betterment of the lives of its citizens, liberals seem intent on furthering their assertion that this law is somehow aimed at undercutting the Administration and that Gov. Snyder was acting outside of his authority in signing it.

While union leaders were rioting in Michigan this week, in Colorado the state's new law legalizing marijuana went into effect.  Let me begin this by saying that I, personally, am opposed to drug legalization at every level as I believe that all recreational narcotic substances are damaging to the individual and to society at large.  But there are much greater issues at play here than just personal morality about whether drugs should be legal.

Washington State and Colorado, of course, legalized recreational marijuana usage by popular vote on November 6, in a move that many have called "historic."  Clearly, the signing of these laws actually was outside of the authority of the state governors who signed them.  Federal law does not allow recreational marijuana usage, and state laws are not allow to preempt federal laws.  However, on this issue, the left is remaining very quiet.  I saw a portion of an interview with former attorney general Alberto Gonzales about possible actions that the Administration can take as a result of the passage of these laws.  Gonzales said that basically the government has three options:

1. The Feds can arrest and prosecute citizens of the states under the current federal drug laws and then argue in court that federal laws always preempt state laws.

2. The Feds can sue the states in court for violating federal laws.

3. The Feds can withhold funding for local law enforcement since the local law enforcement is refusing to uphold Federal law.

There is also a fourth option which Gonzales did not mention but which many progessives and libertarians are demanding.  The federal government can do nothing.  Legalization of recreational marijuana is, after all, supported by a majority of the voters in Colorado and Washington--two states which voted for Obama in the 2012 elections. Additionally, big money backers including hedge fund billionaire George Soros and Peter Lewis of Progressive Insurance support legalizing drugs. For the Administration to enforce the current drug laws would be very unpopular with both monied backers and the liberal voting blocks in those states, so it might be politically advantageous for the Obama Administration to not get involved.

Maybe.  Maybe not. Having two states pass laws legalizing drugs really is a clear affront to federal authority. As it turns out, Colorado and Washington's new laws violate not only federal law, but international United Nations' treaties--the 1961 International Convention on Narcotic Drugs outlaws marijuana and other drugs. That treaty is supported by two other treaties—the 1971 Convention on Psychotropic Drugs and the 1988 Anti-Trafficking Convention.  Whether the Obama Administration privately agrees with these state laws is not the point; the point is that by refusing to take any action on these laws, the Administration is sending a message that in some cases, at least, state laws can preempt federal laws and even international treaties.  In speaking out against the Michigan law, the President and his Administration are interjecting themselves into a matter that is clearly the state's to decide.  In refusing to stand up against legalized marijuana--if that is ultimately the case--the President and the Administration are conceding authority that the federal government actually does have to enforce laws.  The only legal way around this is to back federal bills to legalize drugs nationally.  Any such legislation would undoubtedly prove extremely contentious and difficult to pass in a government as gridlocked as this one. 

It will be interesting to see how this issue of the state authority versus federal authority is ultimately resolved. After all, if the test of whether we have to obey federal laws is determined by whether a majority of citizens in a state agree with the laws or not, there are millions of citizens living in red states who do not agree with a lot of the laws that this Administration is passing.  Could what happens in Colorado and Washington set up a precedent for red states to eventually vote to reject Obamacare? If popular will can nullify international treaties, could states down the road vote to disregard UN treaties such as the UN Small Arms Treaty and could the courts rule with them?  Could courts rule that since the Administration has allowed two states to openly violate federal law, they have sent a message that state laws passed by popular vote have more authority than federal laws passed by the houses of Congress and signed by the President.  If the courts do eventually determine that this is the case, the outcome could be a rebellion against federal control unlike anything we have witnessed in the past.  The outcome should be fascinating to watch.

Alexandra Swann is the author of No Regrets: How Homeschooling Earned me a Master's Degree at Age Sixteen and several other books. Her novel, The Planner, about an out of control, environmentally-driven federal government implementing Agenda 21, is available on Kindle and in paperback. For more information, visit her website at

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