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. EJHill Podcaster
    EJHill
    @EJHill

    To add to Colorado’s legal malfeasance, let me also point out that under the law acceptable forms of ID include Department of Defense issued.

    Here the state is facilitating the purchase of a substance to a group of individuals who are clearly prohibited from using it.

    • #61
  2. user_280840 Inactive
    user_280840
    @FredCole

    Mendel: 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.

    Yeah.  I second this.  If Oklahoma and Nebraska want to cling to their prohibitions, let them do their own damn dirty work.

    • #62
  3. Jager Coolidge
    Jager
    @Jager

    Western Chauvinist: 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.

    Federalism does not take a hit based on States disagreeing with each other. States have argued over borders, pollution and water usage. That is why Article 3 gives the Supreme Court jurisdiction over disputes between the states.

    NE and OK are asking that the Court stop Colorado from imposing cost on their states. It would seem that Colorado could pass legislation that would better restrict the use of pot to Colorado, thus reducing or eliminating the costs to neighboring states.

    • #63
  4. ShellGamer Member
    ShellGamer
    @ShellGamer

    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 if something was initially legal in state X and Y, and state Y bans it, state X has to enact laws “to confine” that action to state X. Really? It seems to me if state Y wants to ban something, it’s up to state Y to enforce the ban. And state X certainty isn’t obligated to restrict the conduct of its citizens in order to facilitate state Y’s ban.

    To provide a concrete example, only state stores may sell wine and liquor in Pennsylvania. To enforce this monopoly, the state also prohibits anyone from bringing wine and liquor from other states for consumption in PA. If you’re pulled over in PA with a case of wine you bought in Ohio, you’ll be charged.

    Are you claiming that Ohio, New York, West Virginia, New Jersey and Maryland must all pass laws prohibiting the sale of wine and liquor to PA residents unless they drink it on the premises?  If an Ohio resident is stopped in Ohio, and admits that he’s bringing a case of wine to his friend in PA (which will be illegal once he crosses the PA boarder), must Ohio arrest and prosecute him?

    I hope these questions are rhetorical.

    • #64
  5. Mendel Inactive
    Mendel
    @Mendel

    Fred Cole:

    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.

    If you’re saying that process only matters when it comes to policies you disagree with, then you’re essentially saying that process doesn’t matter.

    • #65
  6. EJHill Podcaster
    EJHill
    @EJHill

    Fred Cole: 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?

    Again, you think self-determination is a one-way street.

    If the people of Nebraska and Oklahoma want to decriminalize weed within their borders that is THEIR choice. Not Colorado’s and not YOURS.

    • #66
  7. Mendel Inactive
    Mendel
    @Mendel

    EJHill:

    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.

    From a legal perspective: where is the Federal Government granted the power to regulate ingested substances? Citing the Commerce Clause is essentially accepting the argument that any activity can be arbitrarily labeled “interstate commerce” and thus be regulated by the Feds.

    And second, what’s so bad about the states regulating controlled substances? They certainly don’t lack competence, and since state law enforcement is usually the entity enforcing such laws, it would seem to make sense to have those laws enacted at the state level anyway.

    • #67
  8. user_280840 Inactive
    user_280840
    @FredCole

    EJHill: Again, you think self-determination is a one-way street. If the people of Nebraska and Oklahoma want to decriminalize weed within their borders that is THEIR choice. Not Colorado’s and not YOURS.

    And you presume that just because the political class wants something it means the people of a particular state want it.  Obviously of people from Nebraska and Oklahoma are going to Colorado, buying legal marijuana, and bringing it back across the border (again, how this is a “problem” is beyond me), clearly not everyone in those states is on board with prohibition.

    • #68
  9. user_280840 Inactive
    user_280840
    @FredCole

    Mendel:

    Fred Cole:

    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.

    If you’re saying that process only matters when it comes to policies you disagree with, then you’re essentially saying that process doesn’t matter.

    Actually, I don’t think there was a need to paraphrase what I said.

    • #69
  10. EJHill Podcaster
    EJHill
    @EJHill

    ShellGamer: To provide a concrete example, only state stores may sell wine and liquor in Pennsylvania

    It’s not a transferable argument. This is a tax problem, not a consumption problem. The booze is just as legal in the glass in PA as it is any neighboring state.

    • #70
  11. ShellGamer Member
    ShellGamer
    @ShellGamer

    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.

    So Nevada should not let out-of-state visitors gamble or go to the Chicken Ranch? When has anyone ever suggested that allowing vice to attract tourists should be unconstitutional?

    Just because I live in a state doesn’t mean that I have to follow that state’s laws when I’m outside the state. In fact, we always need to follow the laws of the state we’re in, not the one we normally live in.

    I also think the enforcement claim is a red herring. If people are making frequent trips to bring back pot from border towns, it should be easier to detect than people buying from street dealers.

    • #71
  12. Jager Coolidge
    Jager
    @Jager

    ShellGamer: So if something was initially legal in state X and Y, and state Y bans it, state X has to enact laws “to confine” that action to state X. Really? It seems to me if state Y wants to ban something, it’s up to state Y to enforce the ban. And state X certainty isn’t obligated to restrict the conduct of its citizens in order to facilitate state Y’s ban.

    This is a false/ backwards analogy. Pot was illegal in all the states and by federal law. Colorado changed it’s law to allow something that was previously banned. Why should other states incur costs because Colorado wants to change its law. Colorado wants to change the status quo and violate federal law then Colorado should bear any costs.

    • #72
  13. ShellGamer Member
    ShellGamer
    @ShellGamer

    EJHill:

    ShellGamer: To provide a concrete example, only state stores may sell wine and liquor in Pennsylvania

    It’s not a transferable argument. This is a tax problem, not a consumption problem. The booze is just as legal in the glass in PA as it is any neighboring state.

    This is not a tax problem–it’s not like people buying in NH to avoid MA taxes. PA doesn’t want anyone to consume wine or liquor in PA that did not come from a state store.

    And what if booze were illegal in PA? Would all the states have to ban the sale of liquor to PA residents? Even if it were consume in their state?

    • #73
  14. EJHill Podcaster
    EJHill
    @EJHill

    Fred Cole: …clearly not everyone in those states is on board with prohibition.

    So the law must now be unanimous?

    Not everyone is “on board” with prohibitions against a lot of things. That’s a specious argument.

    And as much as we chafe about the “political” class, I’m not sure you want to replace representative democracy with mob rule.

    • #74
  15. ShellGamer Member
    ShellGamer
    @ShellGamer

    Jager:

    ShellGamer: So if something was initially legal in state X and Y, and state Y bans it, state X has to enact laws “to confine” that action to state X. Really? It seems to me if state Y wants to ban something, it’s up to state Y to enforce the ban. And state X certainty isn’t obligated to restrict the conduct of its citizens in order to facilitate state Y’s ban.

    This is a false/ backwards analogy. Pot was illegal in all the states and by federal law. Colorado changed it’s law to allow something that was previously banned. Why should other states incur costs because Colorado wants to change its law. Colorado wants to change the status quo and violate federal law then Colorado should bear any costs.

    But there was a time before the CSA and similar laws when pot was legal everywhere. So when the first state banned pot, are you saying all the other states had to fall in line?

    • #75
  16. user_82762 Inactive
    user_82762
    @JamesGawron

    Shell,

    As I see it this has not a thing to do with Colorado. This is the Federal Government selectively enforcing Federal Law to such an absurd extent that everyone must conclude that this is no justice. The remedy is immaterial.

    This is just one more example of Faithless Execution.

    Regards,

    Jim

    • #76
  17. Jager Coolidge
    Jager
    @Jager

    Fred Cole: EJHill: Again, you think self-determination is a one-way street. If the people of Nebraska and Oklahoma want to decriminalize weed within their borders that is THEIR choice. Not Colorado’s and not YOURS. And you presume that just because the political class wants something it means the people of a particular state want it.

    Both Nebraska and Oklahoma are Initiative and Referendum States. This means that the citizens of the State may put something on the ballot and change the law with out the “political class”. If the people really wanted this or even cared about whether the law changes it would be changed.

    There was a push for an Initiative in Oklahoma that could not get enough signatures to get on the 2014 ballot.

    • #77
  18. ShellGamer Member
    ShellGamer
    @ShellGamer

    Mendel:

    Fred Cole:

    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.

    If you’re saying that process only matters when it comes to policies you disagree with, then you’re essentially saying that process doesn’t matter.

    I agree with Mendel. “We all agree on the problem, we know what the solution is, why should anything stop us” is the essence of the progressive impulse. The impulse is as repugnant in the services of libertarian causes as it is in the service of collectivist causes. Particularly as “we all” generally means “me and those who agree with me.” Those with other views are generally disparaged. See, What’s the Matter with Kansas, for example.

    • #78
  19. EJHill Podcaster
    EJHill
    @EJHill

    ShellGamer: So Nevada should not let out-of-state visitors gamble or go to the Chicken Ranch? When has anyone ever suggested that allowing vice to attract tourists should be unconstitutional?

    As I said earlier, those vices are restricted within the state.

    ShellGamer: And what if booze were illegal in PA? Would all the states have to ban the sale of liquor to PA residents? Even if it were consume in their state?

    It’s not any more burdensome than asking for an ID to prove that you can vote in a jurisdiction.

    • #79
  20. user_280840 Inactive
    user_280840
    @FredCole

    ShellGamer: I agree with Mendel. “We all agree on the problem, we know what the solution is, why should anything stop us” is the essence of the progressive impulse. The impulse is as repugnant in the services of libertarian causes as it is in the service of collectivist causes.

    Except the thing that you’re both missing, the thing that differentiates it from the progressive impulse, is that the progressive impulse is to limit freedom.  The progressive impulse is always a restriction on the natural rights of the individual.

    I have the right, whether the government of the day recognizes it or not, to do things so long as they don’t injure other people.  Generally speaking, I’d prefer governmental ills to be redressed through republican means (because, as a system, generally it means less bloodshed), but my freedom comes first, the minutia of how they make the sausage is secondary to me, especially considering the liars, whores, and thieves that populate the government have a million tricks up their sleeves to perpetuate their own power.

    If they do the right thing and write the laws so they conform to my natural liberties, great, wonderful, but if they don’t, then to hell with them, and I don’t give a damn about their petty squabbles about who gets to force who to do what.

    • #80
  21. Spin Coolidge
    Spin
    @Spin

    Sabrdance: Thus I side with Nebraska and Oklahoma.

    Clearly, I cannot drink the cup in front of you…

    • #81
  22. Spin Coolidge
    Spin
    @Spin

    EJHill: 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.

    Really?  How, pray tell, would State X do that thing?  Check points on the border?  Papers please?

    • #82
  23. Spin Coolidge
    Spin
    @Spin

    Fred Cole:

    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?

    Man, Fred’s way ahead of me.  I hate you, Fred.

    • #83
  24. EJHill Podcaster
    EJHill
    @EJHill

    Fred Cole: …the minutia of how they make the sausage is secondary to me…

    Which is why they get away with being the scalawags.

    Fred Cole: I have the right, whether the government of the day recognizes it or not, to do things so long as they don’t injure other people.

    Which would be great if we had a uniform definition of the term “injure.”

    • #84
  25. Spin Coolidge
    Spin
    @Spin

    EJHill:To add to Colorado’s legal malfeasance, let me also point out that under the law acceptable forms of ID include Department of Defense issued.

    Here the state is facilitating the purchase of a substance to a group of individuals who are clearly prohibited from using it.

    Refer to my post about bumper bowling…

    • #85
  26. Jager Coolidge
    Jager
    @Jager

    ShellGamer: But there was a time before the CSA and similar laws when pot was legal everywhere. So when the first state banned pot, are you saying all the other states had to fall in line?

    No, when it was just state regulations 100 years ago the other states did not have to fall in line. About 80 years ago when the Federal government first started regulating Pot, yes the states had to “fall in line”.  For the last 40 years of the CSA states are required to follow this law. I don’t care if CO wants to change its law, but I think NE and OK, should not be punished financially because CO wants to violate federal law.

    • #86
  27. EJHill Podcaster
    EJHill
    @EJHill

    Spin: Really? How, pray tell, would State X do that thing? Check points on the border? Papers please?

    AGAIN.

    If you want to legalize pot within your state borders, fine. Restrict sales to residents within that state. Why is that so hard?

    • #87
  28. Spin Coolidge
    Spin
    @Spin

    It seems that we have two things here:  the legal wranglings involved and the bigger picture moral / ethical issue.

    I don’t know anything about the machinations of lawyers and their mumbo-jumbu, so I’ll leave that to someone else.

    On the moral issue I have some thoughts.  And by moral issue, I don’t mean whether you should be able to smoke pot or not.  I mean whether one state should be able to take action against another in situations like this.  I want to try to insert another issue that is somewhat similar, and that is gun control.  In some states, you cannot own a hand gun.  We conservatives like to point out that in the areas with the most restrictive gun control laws there are the most gun related crimes.  We point out with our smugnaciousness that you can ban guns in your city or state, but the criminals will just go and get them in the next town or state.  Then we fold our arms in triumph!

    Why is this any different?  How would you feel if Washington began suing Idaho because Idaho, let’s say, allowed anyone to own a handgun with no background check, and that was creating a problem for Washington because our criminals go to Idaho to get their guns?  Would anyone call for Idaho to take measures to discourage “gun tourism”?  Would anyone stand up for Washington?  Probably the liberals would think it was great.  But would anyone on Ricochet do anything other than point out how silly Washington’s laws were?

    • #88
  29. Spin Coolidge
    Spin
    @Spin

    EJHill:

    Spin: Really? How, pray tell, would State X do that thing? Check points on the border? Papers please?

    AGAIN.

    If you want to legalize pot within your state borders, fine. Restrict sales to residents within that state. Why is that so hard?

    Why is it necessary?  I don’t care what you do, or do not, restrict in your state.  That’s YOUR BUSINESS!

    • #89
  30. ShellGamer Member
    ShellGamer
    @ShellGamer

    EJHill:

    ShellGamer: So Nevada should not let out-of-state visitors gamble or go to the Chicken Ranch? When has anyone ever suggested that allowing vice to attract tourists should be unconstitutional?

    As I said earlier, those vices are restricted within the state.

    ShellGamer: And what if booze were illegal in PA? Would all the states have to ban the sale of liquor to PA residents? Even if it were consume in their state?

    It’s not any more burdensome than asking for an ID to prove that you can vote in a jurisdiction.

    Smoking pot in Colorado is restricted within the state. (Unless it leads to an out of body experience.) Your either backing away from or conflating your points.

    Are you saying that:

    • It’s OK for a visitor to a state to engage in activities that would be illegal in his state of residence but are legal in the state he’s visiting, but
    • It’s not OK for a visitor to lawfully purchase a substance that he might or might not take back to his state of residence, if the possession of the substance would be illegal in his state of residence?

    Assuming no federal prohibition of the substance, on what would you base this assertion?

    • #90
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