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Marijuana: The Latest Constitutional Train Wreck
I presume others have seen the WSJ editorial regarding the recent suit by Nebraska and Oklahoma against Colorado’s legalization of marijuana. This led me to read a copy of the states’ brief seeking leave to file the case in the Supreme Court. (The Supreme Court has original jurisdiction over disputes between states, but the complaining states have to establish that they’re entitled to jump over the lower courts). To summarize the states’ argument:
- The Controlled Substances Act (the CSA), a federal law, makes it a criminal offense to manufacture, distribute, or possess a schedule I controlled substance, which includes marijuana and tetrahydrocannabinols;
- Colorado’s constitution and laws have established a regulated industry for the manufacture and distribution of pot;
- The Obama Administration has elected not to enforce the CSA in Colorado or other states that have legalized pot;
- Nebraska and Oklahoma still prohibit pot, and the availability of pot in Colorado has made it more difficult and expensive for them to enforce their bans.
- The Supremacy Clause of the Constitution provides that “the Laws of the United States … shall be the supreme Law of the Land …, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
- Under the Supremacy Clause, Colorado should be enjoined from implementing the provisions of its constitution that would legalize and regulate the manufacture and sale of pot.
The editorial concludes:
When federal power has been legitimately invoked, states may not go rogue. When they do, sister states that can demonstrate concrete injury are entitled to obtain a court declaration that state laws in conflict with federal law are unconstitutional. Normally such lawsuits wouldn’t be necessary because the federal government would enforce its superior law against rogue states. But these aren’t ordinary constitutional times, and it isn’t “fair-weather federalism” to defend these core constitutional principles.
I’d be happy to debate the merits of the suit in the comments, but this strikes me as a good example of how the failure to respect one part of the Constitution results in subversion of other parts. It’s bad precedent, which may be used to further undermine the Constitution.
Of course, the systemic refusal to enforce the CSA in Colorado is another example of the President’s abrogation of his constitutional duty to faithfully execute the laws of the United States, just like his immigration and Obamacare diktats. But Congress is also complicit insofar as they’ve sat back and allowed their laws to be violated with impunity without having to cast a vote. A Congressman can have it both ways: telling pro-legalization constituents that states are free to legalize pot and telling anti-legalization constituents that it is the President’s fault for not enforcing the law.
This creates a wonderful daisy chain: Congress blames the President for not enforcing the CSA; the President blames the states for making it too difficult to enforce the CSA by legalizing pot; and the states justify legalization because Congress won’t amend the CSA.
So now, two states are trying to undo the de facto legalization of pot by asking the Supreme Court to strike down another state’s laws. Essentially, Nebraska and Oklahoma are asking the Court to force another state to ban a substance in order to reduce the costs of implementing their own bans. This should be antithetical to federalism. Imagine, for example, a state suing to force a neighboring state to ban alcohol, tobacco, sugary soft drinks, eggs from caged hens or ammo magazines over a certain size, just to facilitate the complaining state’s prohibitions.
Unfortunately, Colorado’s neighbors aren’t seeking to have the President enforce the CSA; instead, they are asking the Court to strike down provisions of another state’s constitution, to decree what laws the people of Colorado may adopt. If they prevail, it will be precedent for further federal intrusion into the sovereignty of states, assuming there is anything left for them to intrude upon.
Published in General
Except that those bans would be local, not national. Among the states there are dry counties but because alcohol is legal they are on their own when enforcing it.
Nationally, the sale and possession of these controlled substances are illegal. Colorado’s neighbors are upholding the law and the Centennial State is making it more difficult and more expensive to do that.
I side with Nebraska and Oklahoma.
“So now two states are trying to undo the de facto legalization of pot by asking the Supreme Court to strike down another state’s laws.”
I would agree with you ShellGamer, if your statement above captured the core of the matter. But as you note, the Controlled Substances Act is a federal law on the books. Thus NE and OK are objecting to another state’s laws based on that state’s conflict with federal law. I too am with NE and OK.
Without debating the merits of legalizing marijuana (which I voted for), I agree with the point of your post. This is disastrous for federalism, but there’s something worse still. The constitutional order cannot be maintained without the rule of law.
The Obama administration is a perfect storm. Lawless and, yet, unimpeachable. Resolving this particular case (either through enforcement or amendment of the CSA) won’t fix that.
Whatever The Constitution says, immoral laws shouldn’t be enforced to protect it unless there was a large realistic chance that people would no longer support the moral portions of it. I find it extremely unlikely the most important parts would be existentially questioned.
I find myself conflicted on the point.
1.) The states should be allowed to live, more or less, as they choose. If one state wants to have legal marijuana, and pass laws to the effect that their police will not enforce the federal laws on the point (but the DEA is welcome to enforce their own laws), then they should be able to.
2.) The states may not dragoon their neighbors -by hook or by crook or by main force -into enforcing state laws that conflict across borders.
Thus, I side with Colorado. It is within their power to pass the laws and Nebraska and Omaha cannot stop that.
However,
1.) Nor may the states cause problems with their neighbors by, for example, abetting the escape of criminals across state borders.
2.) Or through writing laws that affect or bind the citizens of other states. **It may be a logical corollary that nor may a state pretend to relieve citizens of other states of the laws that bind them within those other states, but I don’t think that’s spelled out in the Constitution.**
3.) To this end, the states are obligated to do certain things (render up escaped fugitives upon request, for example, or not put up checkpoints at the state borders), and beyond those limited obligations, cross-state disputes are to be adjudicated by the Supreme Court, but are subject to the regulation of Congress (Commerce Clause, Compacts Clause).
4.) Congress has so regulated: the Controlled Substances Act.
Thus I side with Nebraska and Oklahoma.
I don’t actually see an easy out here. Nebraska and Oklahoma have a legitimate gripe: Colorado provides a haven and incubator for behavior which is illegal in all its neighboring states, but unlike say gambling or prostitution in Nevada, the drug runners actually will hop the borders. And yet Nebraska and Oklahoma have no right to dictate to Colorado what Colorado’s laws should be, even if Colorado’s laws make Nebraska and Oklahoma’s job harder.
My problem with federal enforcement of drug laws is this. If it took a constitutional amendment for the federal government to enforce alcohol prohibition (since repealed) why doesn’t it take a constitutional amendment for the federal government to enforce drug laws?
As for this suit, I suspect that if successful it could backfire. We could see the CSA repealed or at least amended so that marijuana is legal at the federal level. The states that repealed legalized marijuana within their borders did so with referendums. If more states do that, it will be hard for Congress to ignore.
I tend to be in favor of legalization of marijuana, but I think NE and OK are in the right. The Supremacy Clause clearly states that federal law supersedes state law when the two conflict. End of story.
It seems to me some on the right may not be fully on board with the Supremacy Clause. I suppose it may seem antithetical to federalism, but an orderly system requires the Constitution to give the last word to either the states or the national government, and our founding fathers wisely chose to give it to the national government: because giving states a veto over any law the national government enacted would cause the country to quickly disintegrate.
The compromise in this deal was obviously to limit the scope of the national government’s powers, and I think that is where Colorado should argue this case: where does the Constitution allow the federal government to mandate which substances citizens may put into their bodies? I would argue the CSA is unconstitutional, and that the matter of controlled substances should have been left to the states in the first place.
Mendel asks, “[W]here does the Constitution allow the federal government to mandate which substances citizens may put into their bodies?”
Then why have any drug trials? Or even local health inspectors? If there’s no regulations to that end then you’re on your own for everything. That’s beyond libertarianism. That’s anarchy.
I didn’t say those things are absolutely unconstitutional, only questioning whether the federal government is empowered to enact them.
In the absence of federal government jurisdiction, there are still those entities known as states standing between us and anarchy.
Shouldn’t the tie go in favor of the state making it’s own laws?
I am sure there are a few States that would love to pass laws opting out of Obamacare or counteracting EPA regulations. Those States would likely be in the “right” on the issues. Should they be allowed to not just ignore but contradict federal law?
Are you advocating that the States are only responsible to follow those Federal Laws that they agree with?
The proper response to a Federal Law that you feel is “immoral” is to get the law changed not to ignore it.
Assuming it wouldn’t destroy all semblance of order, states would have the duty to ignore and contradict bad laws. Citizens have this duty as well. They do pass these laws in fact, but have issues enforcing them.
Sort of. Agreeing with a law and a law being objectively right are two different things. It’s possible that a state would disagree with a good law, and that would be wrong, but that’s no reason for a state to enforce bad law.
Well, I disagree with the word “proper.” That’s certainly the socially acceptable contention, but it mainly serves to end debate. The proper response to slavery was not (only) to get the law changed; it was to ignore it, and that’s what many people did at the time. They were right to do so.
What makes a law a “good” law and what makes a law a “bad” law is really quite subjective. It depends on your world view and your policy goals. I think Obamacare is a terrible law, Liberals think that it helps people, so it must be good. Both could be true. The law could be a bad law that is good for some people. So you think it should be up to the States to determine for themselves whether this is a good law or a bad law and thus whether to follow the law? What is your limiting principle for this action, is there anything the States cannot do in contradiction to federal law?
I would think that slavery is something of an extreme case. Are you really saying that not allowing legal pot is the same as enslaving a group of people based on their race?
I agree it seems that way, but I’m not a radical skeptic about what is good law and bad law. Bad laws, for instance, are ones that deprive people of their property against their will. This can only be done in the most extreme of circumstances, and “I think, on net, things will be somewhat better with this law” does not meet that criteria.
Absolutely, if it’s wrong for the Federal government to do something, it would be wrong for the states to do it. Like I said, it would be wrong for a state to contradict a good federal law. Similarly, if somehow the states, in doing the right thing, would cause the entire system to collapse into something much worse, then it would be wrong for the states to go through with that action. I’m making a big distinction with what states should do and what they can do. States obviously have the power to pass bad laws, but they still shouldn’t do it. They also shouldn’t enforce bad federal law, but obviously they can, and there’s a lot of pressure to do what the Feds say.
Of course not, slavery is just the most obvious example. We fixed the most obvious injustices long ago, only the more subtle ones are left, but as our enlightenment progresses, these subtle cases are becoming more obvious.
Sorry to be absent from the conversation, but as usual, you guys have addressed the main points. Rather than responding specifically, let me offer the following observations.
In other words, like many conservatives and unlike the current administration, I regard my policy ends as constrained by Constitutional means.
My main problem with the NE/OK suit is that it does not seek to vindicate the Constitution. They are not asking the Supreme Court to compel the administration to enforce the CSA consistently in each state. They are asking the Court to prevent CO from implementing the provisions of its Constitution. In plainer terms, they are asking for CO to answer for the administration’s unconstitutional conduct.
The problem is that you can’t have it both ways and that goes for both the left and the right.
These state marijuana laws are no different than Arizona’s immigration statute. It boils down to jurisdiction, not policy. The courts won’t give a tinker’s damn about the soundness of any law as policy, nor should they.
Your spot on about the parallel to immigration. The administration won’t enforce the law, so the states respond with self-help, only to be told by the courts that they’re preempted by federal jurisdiction.
The other parallel is that NE/OK are effectively trying to direct the enforcement of the CSA, which really is not their purview. The theme is unconstitutional conduct by the administration (abetted by Congress) leads to an unconstitutional (but understandable) response by the states.
There really has to be a means of redressing the administration’s refusal to enforce the laws. I was just showing that I support this even when it would thwart my preferred policies.
That seems to be a matter of how you frame the issue. CO decided to legalize pot in violation of federal law. The NE/OK lawsuit asks the Court to invalidate the CO legalization and force CO to follow federal law. Yes the Administration should have acted but the action would have been the same, a law suit to invalidate the CO law as it violated federal law. If CO had not taken the unconstitutional act in violating federal law there would be no issue at all. NE/OK are asking CO to answer for it’s own unconstitutional conduct.
What is unconstitutional about the the NE/OK law suit? Article 3 of the Constitution states the court will have jurisdiction in controversies between two or more states. NE/OK have a controversy with CO over whether CO has to follow federal law so they filed suit. What is the unconstitutional act?
I’m going to get lawyerly on you here, so I apologize in advance. But the CO did not violate the CSA. The CSA does not require states to outlaw marijuana; it prohibits the manufacture, distribution and possession of pot directly. The suit concedes that CO is not required to pass its own laws banning pot. The complaint is that CO laws have created a regulated pot industry.
This ties back to some of the discussion about whether states must comply with “bad” federal laws. Under the Supremacy Clause they must, but this should not prevent them from passing contrary laws that are thus preempted. It seems to me that this is similar to civil disobedience on the individual front.
So, in my view, adopting the amendments was not an unconstitutional act on CO’s part. NE/OK’s suit is not unconstitutional, but the remedy they seek (enjoining another state’s enforcements of its own laws) would be.
It is an interesting lawsuit. It has similarities to the states’ successful lawsuits against the federal government for not enforcing environmental laws. I could be mistaken, but I think even the enforcement of the desegregation laws in some places (Boston? and Judge Garrity, who oversaw the EPA lawsuit as well, and who loved his federal authority) was prompted by similar lawsuits against the feds.
I’ve wondered for years why the southern states do not sue the feds to enforce the border and recoup their costs of healthcare, education, and police protection for the illegal immigrants.
Like many writers here, I have mixed feelings about the Colorado versus Oklahoma and Nebraska case. I don’t want to see the feds get any more power over the states.
I keep thinking of Romney’s rush to Washington, D.C., to speak to Congress about gay marriage–he said, and I’m paraphrasing greatly: “If you do not want this, you must act now. Traditional marriage will not survive as a state’s right.” Some things, like the drug laws, are difficult if not impossible to manage on a state-by-state basis.
Some days it seems the United States will have to burst apart or just let the feds take over. Geography doesn’t seem to be a useful political boundary anymore. State boundaries seem to be fading fast.
Some of you people have very off concepts of the Constitution and of federalism. You seem to think it consists of the federal government jamming failed policies down the throats of states that have clearly rejected them.
That’s federalism to you? That’s limited government?
Fred,
And your concept of the Supremacy clause is? Surely you don’t think the President should pick and choose what laws he is going to enforce, do you?
Marcin–This is not a suit of the states against the feds, it’s states against states. This was a sideline in my Constitutional law classes, so I’m not too familiar with the general run of the cases.
The brief cites, however, several recent cases and they are mostly in the environmental line. I can see the need for this forum when pollution is blowing/flowing in from an adjacent state, because once the nuisance is produced there is no way to control it.
But I’m skeptical when people are importing the nuisance into the state. States generally control the personal conduct of only those within their borders. (Although, you raise an interesting point as to whether this view has become an anachronism.) People who violate Nebraska’s laws against pot have to get it from somewhere. If Nebraska can reach to whatever jurisdiction the pot comes from, then it’s hard to draw any boundaries, whether geopolitical or legal.
All Presidents prioritize. Resources are finite.
I don’t see what good comes from the President enforcing laws that are impractical, unenforceable, unconstiutional, or just plain bad public policy.
In this particular case we’re talking about a law (the Controlled Substances Act) and a larger policy (the War on Drugs) that’s an utter failure and a travesty. What good comes from enforcing it, especially in states that where the public have clearly rejected it?
Not according to the Supremacy clause of the US Constitution.
And by the way, if you want to talk about constitutional train wrecks, we should talk about the entire War on Drugs.
Please explain to me why a federal ban on marijuana is constitutional at all.
When the federal government wanted to ban alcohol it needed to pass a constitutional amendment, which later had to be repealed by same.
I got it. Thank you. I see the difference now. But that’s interesting since it would have been the most direct route to success for Oklahoma and Nebraska. I wonder why they didn’t sue the feds for not enforcing the federal law. Hmm.
The real problem comes from Congress making laws it shouldn’t make in the first damn place.