Delaware’s move closer to legalized pot is tantamount to civil disobedience

Could the “Law of Unintended Consequences” trump results that make pot sale and use in Delaware entirely legal — in the face of federal law to the contrary — and structurally weaken Delaware’s finances?

Could Delaware’s civil disobedience lead to increased income taxes, a state property tax, or — God forbid — even a sales tax?

That’s the concern here, as I watch some of Delaware’s legislators skate onto thin ice as they worry more about social issues and less about managing the state.

A good case can be made for legalizing marijuana. Proponents are making that case every day in the news.
That 60 percent or so of our fellow citizens would like see “toking up” authorized by the state of Delaware is not incomprehensible. (I’d argue, though, that as long as the General Assembly is practicing state civil disobedience in nullifying federal law that Delawareans would much rather see the General Assembly exempt Delaware citizens from paying the IRS the income tax they owe, while we’re about deciding which federal laws we’d like to thumb our collective noses at!)

However, they’re preaching to the wrong audience — the General Assembly in Dover, and not Capitol Hill in Washington, D.C. If they are successful here in legalizing pot, they will have strategically weakened Delaware’s already-fragile revenue foundations.

Two of the cornerstones that secure the funding of Delaware’s $4 billion general operating fund inspire desire from other states. And it’s a strictly win-lose proposition. Those states can’t win unless Delaware loses.

One of those is our incorporation laws, which support a legal industry worth billions of dollars. The other is our escheated property revenue collections. Those allow the state to claim 100 percent of the value of “abandoned property,” from a bookstore’s $10 gift card that goes unused to unclaimed dividends potentially worth millions of dollars, if it’s incorporated in Delaware.

About escheated property, other states hate Delaware’s capability to simply take money it finds, even when that money is on deposit in other states. The Attorney General for the state of New York sued the state of Delaware for that. Unsuccessfully.

Even retiring-to-senior-status U.S. District Judge Greg Sleet, one of Delaware’s own, recently warned Delaware from the bench about overreach in its definition of abandoned property and its escheatment of funds.

Chancellor Andre Bouchard discusses elsewhere in this issue how other states have tried for decades to copy Delaware’s incorporation laws and its Court of Chancery, its respected business court. Nevada, South Dakota, Louisiana and others have gotten little for their efforts. So far.

Delaware has gotten away with usurping what would be regarded as a federal function in most other countries, and/or concentrating such incorporations in Delaware to the disadvantage of our competitor states, because of our historical legacy and primacy.

If I were a counselor to leaders of any of those states, I’d be watching the Delaware General Assembly with glee, ready to encourage their action once Dover puts bullets in the gun that can be used against us here in Delaware.

“The Delaware political leaders have just put their thumb in the eye of the Congress, and of the president of the United States, deciding to nullify and violate federal law with impunity, because they don’t think you feds have the cajones to come after them,” I’d suggest.

“That other states may have done this before is irrelevant. This is a new year, with a new Congress, and a new president, and those Delaware folks simply have no respect for federal law,” I’d counsel. “Delaware is going ‘a bridge too far’ in kowtowing to the potheads, in not settling for medical marijuana and marijuana decriminalization.”

And based on that, I’d encourage whole new legislative initiatives at the federal level, as well as at various state levels, that could punish Delaware by forbidding its confiscation of “other peoples’ money.”

At the end of April, President Trump did just that on another front of state usurpation of federal prerogatives when he threatened to suspend federal funds from a variety of cities and states that have created so-called Sanctuary Cities in violation of federal law, effectively harboring millions of people who are in America illegally, some of them criminally, some of them posing risks to citizens.

Finally, it’s my impression that their oaths of office obligate the governor, the attorney general and legislators to obey the laws of the land, when they take office.

Many would sense hypocrisy when a legislator basically says, “screw the feds, and their laws, this is Delaware, and we do what we want here!”

Before a proponent responds that I’m a “prude” about smoking dope, let me point out that I’m a Democrat who is, at heart, a social progressive and libertarian, but a “small government” conservative.

For years, I worked with such fine leaders as Gov. Dale Wolf, the late Gov. Russell Peterson, Victor Battaglia Sr., and the late Edmund “Ned” Carpenter– the latter two esteemed members of Delaware’s bar – to rid Delaware of “mandatory minimums,” the General Assembly’s knee-jerk reaction of harsh punishment for innocuous crimes like smoking a joint.

I’ve also supported decriminalization of the penalties against people who smoke dope, and, although I wasn’t asked to be in that fight, I’m OK with medical marijuana.

Civil disobedience as an individual strategy is one thing. But states that practice civil disobedience in attempting to nullify federal law get themselves in trouble.

Take your pot legalization case to the feds, don’t bother the fine folks in Dover, who have enough to do to keep Delaware financially afloat.

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