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:

  1. 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;
  2. Colorado’s constitution and laws have established a regulated industry for the manufacture and distribution of pot;
  3. The Obama Administration has elected not to enforce the CSA in Colorado or other states that have legalized pot;
  4. 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.
  5. 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.”
  6. 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.

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  1. Miffed White Male Member
    Miffed White Male
    @MiffedWhiteMale

    ShellGamer: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.

    1. Just by way of orientation, I see no justification for treating pot as a schedule 1 substance. It seems to me narcotics fall along a spectrum of potency and addictiveness, and pot is a long way from most opiates. From my perspective, I believe the correct policy is to regulate pot at the state level and test different ways of regulating the externalities of pot use.
    2. Consistent with my views, I voted in favor of the CO amendments. Although I do not use, nor plan to use, pot, I see no reason to prevent my fellow adult citizens from doing so.
    3. Notwithstanding these person views, the CSA ought to be fully enforced in CO. I haven’t checked, but the editorial suggests that the CSA permits the attorney general to remove pot from schedule 1. If true, the AG should do so–nationally. If not, then Congress should amend the CSA. But few things could be more contrary to a federal constitution than selective enforcement of federal laws on a state-by-state basis.
    4. Were the CSA properly enforced, CO’s amendment would have been a symbolic gesture, which may have increased the pressure on Congress to make appropriate changes to the CSA.

    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.

    Ultimately the argument is that the CO Constitution conflicts with Federal Law.  The Supremacy clause says that Federal Law wins.  Therefore, the provision of the the CO Constitution is invalid, null and void.

    • #31
  2. Miffed White Male Member
    Miffed White Male
    @MiffedWhiteMale

    Fred Cole:

    Miffed White Male: Not according to the Supremacy clause of the US Constitution.

    The real problem comes from Congress making laws it shouldn’t make in the first damn place.

    Then repeal (or overturn as Unconstitutional) the Federal law.  Until then, the states are prevented from passing their own laws that contradict it.

    • #32
  3. user_280840 Inactive
    user_280840
    @FredCole

    Miffed White Male: Ultimately the argument is that the CO Constitution conflicts with Federal Law.  The Supremacy clause says that Federal Law wins.  Therefore, the provision of the the CO Constitution is invalid, null and void.

    Might makes right, no matter how terrible the policy.

    • #33
  4. TeeJaw Inactive
    TeeJaw
    @TeeJaw

    Colorado’s voters once amended the Colorado Constitution to say that being gay did not give you the right to “suspect class” status in employment discrimination suits. The Supreme Court had no problem then telling Colorado what laws it could or could not pass, and struck it down.

    • #34
  5. user_280840 Inactive
    user_280840
    @FredCole

    Miffed White Male:

    Fred Cole:

    Miffed White Male: Not according to the Supremacy clause of the US Constitution.

    The real problem comes from Congress making laws it shouldn’t make in the first damn place.

    Then repeal (or overturn as Unconstitutional) the Federal law. Until then, the states are prevented from passing their own laws that contradict it.

    Or leave it be.  Everything was fine until nanny state meddlers decided they couldn’t stand legal pot across the state border.  It’s not as if the republic would fall from the current arrangement.

    • #35
  6. user_280840 Inactive
    user_280840
    @FredCole

    Kozak: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.

    That was different.  White people drink alcohol.  When the feds outlawed pot, it was just scary “Negroes” using the “demon weed” to seduce innocent virginal white women.

    • #36
  7. Miffed White Male Member
    Miffed White Male
    @MiffedWhiteMale

    Fred Cole:

    Miffed White Male: Ultimately the argument is that the CO Constitution conflicts with Federal Law. The Supremacy clause says that Federal Law wins. Therefore, the provision of the the CO Constitution is invalid, null and void.

    Might makes right, no matter how terrible the policy.

    No, Law makes right.  If you’re willing to ignore the Constitution  in this case because you like the policy, why should anyone take you seriously when you want them to follow the Constitution in a case where THEY like the policy?

    • #37
  8. Miffed White Male Member
    Miffed White Male
    @MiffedWhiteMale

    Fred Cole:

    Miffed White Male:

    Fred Cole:

    Miffed White Male: Not according to the Supremacy clause of the US Constitution.

    The real problem comes from Congress making laws it shouldn’t make in the first damn place.

    Then repeal (or overturn as Unconstitutional) the Federal law. Until then, the states are prevented from passing their own laws that contradict it.

    Or leave it be. Everything was fine until nanny state meddlers decided they couldn’t stand legal pot across the state border. It’s not as if the republic would fall from the current arrangement.

    Actually, it’s exactly this kind of “let’s ignore the Consitution because we like the policy result” attitude that will cause the republic to fall.

    • #38
  9. Mike H Inactive
    Mike H
    @MikeH

    TeeJaw:Colorado’s voters once amended the Colorado Constitution to say that being gay did not give you the right to “suspect class” status in employment discrimination suits. The Supreme Court had no problem then telling Colorado what laws it could or could not pass, and struck it down.

    Was that based on the supremacy clause?

    • #39
  10. EJHill Podcaster
    EJHill
    @EJHill

    Fred Cole: That’s federalism to you? That’s limited government?

    At one time “making a Federal case” out of something was considered a pejorative. Unfortunately, the Civil War and its Jim Crow legacy killed that. It forever tarnished the idea, not just the phrase, of “States Rights.”

    As a matter of practical application, however, there are times when uniformity is necessary and the only way to achieve that is through Federal Supremacy.

    Take other identifiable “vices” such as gambling and prostitution. One state may chose to legalize and another may not. In these cases, however, the consumption of those vices are confined to specific jurisdictions. You may not make a sports bet off the casino floor via phone or internet, nor may you transport your hooker across state lines.

    Here, Colorado is doing nothing to confine the usage of a controlled substance inside their own borders, effectively nullifying the will of the people in neighboring states.

    • #40
  11. Instugator Thatcher
    Instugator
    @Instugator

    I gotta go with Al Sparks (#6) and Kozak (#28). Still looking for an answer to the first principle question – and Fred’s doesn’t count.

    • #41
  12. Instugator Thatcher
    Instugator
    @Instugator

    Obviously, EJ Hill (#40) has never heard of “Air Force Amy”.

    • #42
  13. Mike H Inactive
    Mike H
    @MikeH

    EJHill: As a matter of practical application, however, there are times when uniformity is necessary and the only way to achieve that is through Federal Supremacy.

    Sure, but if the law being enforced through Federal Supremacy is itself Unconstitutional, how does it follow that the Constitution can be used to enforce it?

    • #43
  14. ShellGamer Member
    ShellGamer
    @ShellGamer

    I don’t see what good comes from the President enforcing laws that are impractical, unenforceable, unconstiutional, or just plain bad public policy.

    The good is that it forces Congress to do its job and amend or repeal the “laws that are impractical, unenforceable, unconstitutional, or just plain bad public policy.” The administration’s work around let’s Congress off the hook, and places the rest of us in jeopardy that the next administration will change course, and start enforcing the law as written.

    The Constitution says that Congress makes the laws and the President executes them. Presidents can veto “laws that are impractical, unenforceable, unconstitutional, or just plain bad public policy,” if they are passed during the President’s term in office. Otherwise the President has to seek their amendment or repeal. This is what “separation of powers” means, and it’s every bit as much of our Constitution as the Supremacy Clause.

    I’ll concede an exception for unconstitutional laws: execution of an unconstitutional law would also violate the President’s constitutional duties. But this could never justify selective enforcement of federal law on a state-by-state basis.

    • #44
  15. EJHill Podcaster
    EJHill
    @EJHill

    Mike H: Sure, but if the law being enforced through Federal Supremacy is itself Unconstitutional, how does it follow that the Constitution can be used to enforce it?

    I don’t follow the argument that the Feds have no Constitutional authority to regulate the sale, possession or usage of any substance, natural or artificially produced that alters personality or brain function.

    That Congress once chose to ban alcohol through the amendment process does not mean that had they done it by statute it wouldn’t have been just as legally binding.

    • #45
  16. ShellGamer Member
    ShellGamer
    @ShellGamer

    Kozak: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.

    The constitutional basis is the Commerce Clause. The difference is that prohibition was imposed before the New Deal cases that expanded the Commerce Clause to anything “affecting” interstate commerce. I won’t attempt to defend those decision, but they would probably allow the Federal government to reimpose prohibition without a constitutional amendment.

    • #46
  17. user_280840 Inactive
    user_280840
    @FredCole

    EJHill: Here, Colorado is doing nothing to confine the usage of a controlled substance inside their own borders, effectively nullifying the will of the people in neighboring states.

    The will of some of the people in those neighboring states to … mind everyone else’s business?

    • #47
  18. Mike H Inactive
    Mike H
    @MikeH

    EJHill:

    Mike H: Sure, but if the law being enforced through Federal Supremacy is itself Unconstitutional, how does it follow that the Constitution can be used to enforce it?

    I don’t follow the argument that the Feds have no Constitutional authority to regulate the sale, possession or usage of any substance, natural or artificially produced that alters personality or brain function.

    That Congress once chose to ban alcohol through the amendment process does not mean that had they done it by statute it wouldn’t have been just as legally binding.

    Where’s Sal when you need him?

    • #48
  19. user_280840 Inactive
    user_280840
    @FredCole

    Instugator:I gotta go with Al Sparks (#6) and Kozak (#28). Still looking for an answer to the first principle question – and Fred’s doesn’t count.

    Pardon me?

    And which first principle question?

    • #49
  20. EJHill Podcaster
    EJHill
    @EJHill

    Fred Cole: The will of some of the people in those neighboring states to … mind everyone else’s business?

    You can’t have a one-way street on self determination.

    If state X wants to legalize something and bordering state Y wants to ban it, X has the duty to confine that action within its own jurisdiction.

    • #50
  21. EJHill Podcaster
    EJHill
    @EJHill

    Instugator: Obviously, EJ Hill (#40) has never heard of “Air Force Amy”.

    Until your comment I was blissfully unaware of her existence.

    • #51
  22. user_280840 Inactive
    user_280840
    @FredCole

    EJHill:

    Fred Cole: The will of some of the people in those neighboring states to … mind everyone else’s business?

    You can’t have a one-way street on self determination.

    If state X wants to legalize something and bordering state Y wants to ban it, X has the duty to confine that action within its own jurisdiction.

    So … border check points?

    • #52
  23. Jager Coolidge
    Jager
    @Jager

    ShellGamer: 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.

    I don’t mind you getting “lawyerly” it is educational, especially as I have not read the complaint itself.  Isn’t this conflating “decriminalization” with “legalization”. CO is not required to ban pot. If CO had no laws regarding pot at all, the federal law would be the operative law and there would be no conflict in law.

    Absence of a law is not what CO did. CO took the affirmative action to make it legal to have pot, legal to grow pot and legal to sell pot in a store. This is not simply failure to outlaw pot (which is OK) but made pot legal which violates the law.

    ShellGamer: NE/OK’s suit is not unconstitutional, but the remedy they seek (enjoining another state’s enforcements of its own laws) would be.

    This might work for me if West Virginia filed suit just because Colorado violated federal drug laws. Nebraska and Oklahoma are saying Colorado is violating federal law and this is imposing costs on our States. They are seeking not to enjoin Colorado from enforcement of its own laws but to enjoin Colorado from imposing costs on Nebraska and Oklahoma citizens.

    • #53
  24. ShellGamer Member
    ShellGamer
    @ShellGamer

    Miffed White Male:

    Ultimately the argument is that the CO Constitution conflicts with Federal Law. The Supremacy clause says that Federal Law wins. Therefore, the provision of the the CO Constitution is invalid, null and void.

    Your major and minor premises are sound, but the conclusion doesn’t follow. If the administration changes policy and raids a marijuana distributor in CO for CSA violations, the distributor cannot rely on its state license as a defense. The Federal law would win, but the Federal law only regulates individual conduct, not what laws states may enact. So all the Supremacy Clause means is that CO laws cannot impede the enforcement of the CSA. It is the administration, not CO, that has chosen not to enforce the CAS.

    Were CO’s laws truly “invalid, null and void,” then CO could not prosecute a pot distributor for failing to obtain a license, or for selling to minors, or other actions regulated by CO’s laws. Is this really what you meant?

    This another major problem with the suit. Enjoining implementation of CO’s laws will not reenact laws banning pot. The result would be to convert a newly regulated industry into an unregulated one. A victory for libertarians perhaps, but not an effective remedy for NE/OK purported problems.

    • #54
  25. Western Chauvinist Member
    Western Chauvinist
    @WesternChauvinist

    I read a lengthy article some weeks ago about the Colorado boom towns on the border with NE and OK. That’s really where the problem predominantly lies. There’s no doubt these towns are catering to pot users from the neighboring states where pot remains illegal (and seeing massive revenue increases as a result), causing huge increases in enforcement costs across the border. This makes me sympathetic to NE and OK.

    However, I’m in agreement  with Shellgamer that the proper course of action would be for NE and OK to demand that the feds enforce federal law. Barring that, they had best prepare for the feds to change the status of marijuana from a schedule-1 drug. Or, as seems standard-operating-procedure for this administration, they should expect to to go along as we have been with arbitrary enforcement based only on the prevailing opinion of the Obama administration. For now.

    If they win their suit, federalism takes a hit. I don’t see how that’s arguable.

    • #55
  26. EJHill Podcaster
    EJHill
    @EJHill

    Fred Cole: So … border check points?

    That would be unconstitutional.

    But currently, Colorado’s law allows anyone to buy up to one quarter ounce of the drug with any valid ID. (Only state residents may purchase a full ounce.) Still, there is no structure in place that would prevent you from buying more than the allowable limit one shop at a time.

    The first thing they could do is limit all sales to state residents only. That would cut back on drug tourism.

    (And BTW, from what I understand through Google – and not personal experience – is that one quarter ounce is enough for 15 joints.)

    • #56
  27. Mendel Inactive
    Mendel
    @Mendel

    Fred Cole:

    Or leave it be. Everything was fine until nanny state meddlers decided they couldn’t stand legal pot across the state border. It’s not as if the republic would fall from the current arrangement.

    Fred, from this and many of your other comments, it is clear that you don’t think process matters – if the outcome is good, everything is fine.

    That mentality works as long as a vast majority of your co-citizens agree with your policy. But as you should know better than anyone else, that is not the case.

    Paying a lot of attention to how policy gets enacted, and not which policies get enacted, is a very important safeguard to ensuring that your preferred policies do not get completely trampled.

    • #57
  28. user_280840 Inactive
    user_280840
    @FredCole

    EJHill: The first thing they could do is limit all sales to state residents only.

    What’s the point again?

    Look, if the border towns are booming, there’s clearly a market for this stuff.  The public wants pot legalization.  The political class (including in Colorado) has to be dragged kicking and screaming to end pot prohibition.  It’s been the public that’s lead the way on this.

    So rather than accept that (1) pot prohibition has been an utter and unmitigated failure as public policy and (2) the public wants legal pot, you’d have the federal government step in?

    That’s federalism to you?  That’s limited government?

    • #58
  29. Mendel Inactive
    Mendel
    @Mendel

    EJHill:

    Fred Cole: The will of some of the people in those neighboring states to … mind everyone else’s business?

    You can’t have a one-way street on self determination.

    If state X wants to legalize something and bordering state Y wants to ban it, X has the duty to confine that action within its own jurisdiction.

    This isn’t the case with fireworks or other items which are legal in one state but not another.

    We don’t expect states which sell fireworks to prevent them from being taken out of the state, we expect the other states to prosecute their own prohibitions.

    • #59
  30. user_280840 Inactive
    user_280840
    @FredCole

    Mendel: Paying a lot of attention to how policy gets enacted, and not which policies get enacted, is a very important safeguard to ensuring that your preferred policies do not get completely trampled.

    The process matters when it prevents government action and works to safeguard liberty.  When it’s working the other way, I could give a damn about the process.

    • #60
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