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.

Published in General
Like this post? Want to comment? Join Ricochet’s community of conservatives and be part of the conversation. Join Ricochet for Free.

There are 175 comments.

Become a member to join the conversation. Or sign in if you're already a member.
  1. Spin Inactive
    Spin
    @Spin

    EJHill: Restrict sales to residents within that state.

    It strikes me that if one state has a ban on doing some thing, and the job of enforcing the doing of that thing is the job of that state.  Not the job of other states who do not ban the doing of that thing.

    • #91
  2. Jager Coolidge
    Jager
    @Jager

    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.”

    We do not even have a uniform definition of the term “right”. To hear some people talk we have a “right” to health care, good houses, and free birth control.

    If the “government of the day” does not recognize your right, for practical not theoretical purposes, does that right exist? You have the ” right”  to do what ever you want with your property. If the government does not recognize this right you will be fined, forced to change your behavior or have your property seized. That is why the sausage making is important.

    • #92
  3. ShellGamer Member
    ShellGamer
    @ShellGamer

    Fred Cole:

    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.

    But you’re missing the point that liberty is not self-effectuating. I agree that liberty arises from natural law (or rights, to use your term). But some government is necessary to secure our liberties. Allowing “furtherance of personal liberty” to trump the constitution of a government will eventually lead to its entire subversion, insofar as some person’s liberty can always be found as a pre-text for an exception.

    Exceptions to the Constitution, on any basis, will ultimately facilitate the playing of tricks by “the liars, whores, and thieves.” (Although you surely don’t favor prohibition of prostitution, so “whores” could not have been intended pejoratively.)

    • #93
  4. Sabrdance Member
    Sabrdance
    @Sabrdance

    Several people have asked variants of the question: “on what grounds does Congress regulate Marijuana.”

    The (comparatively) short answer is as follows (argument cribbed from the Wickard, Raich, Antonin Scalia’s comments on Raich, Michael Greve’s Upside Down Constitution, and various other sources).

    Congress may not tell an individual how to do his job or run his business -that isn’t interstate commerce.  However, if an individual wants to engage in interstate commerce, Congress can establish the grounds on which that commerce can be engaged (to prevent the states from trying to harm each other, or to reconcile disputes about where goods can be shipped and services delivered).  So, for example, if you want to carry goods on a train, Congress can require that you follow Common Carrier rules.

    If Congress can establish the grounds on which you can engage in Interstate Commerce, that means that Congress can establish quotas as a part of those grounds.  If Congress may establish a quota, that quota may be set to zero.

    If the quota that may be traded is zero, then it is reasonably necessary and proper for Congress to ban the manufacture and production of the good.

    You may attack various parts of that logic -Clarence Thomas attacked the last step, that a ban is a proper power of Congress to enforce a quota of zero, for example.

    • #94
  5. ShellGamer Member
    ShellGamer
    @ShellGamer

    Finally caught up to Spin’s comments, and it reminded me of an example of an early comment. Colorado bans the use of magazines that hold more than 15 bullets by its residents. Are EJHill and Jaeger saying that other states must now pass laws prohibiting the sale of such magazines to Colorado residents, and perhaps requiring proof of non-residency?

    If I travel to Wyoming, buy a 30 bullet magazine and bring it back to Colorado, I’ve violated the law. But I don’t see how Wyoming has violated the Constitution.

    • #95
  6. EJHill Podcaster
    EJHill
    @EJHill

    Spin: It strikes me that if one state has a ban on doing some thing, and the job of enforcing the doing of that thing is the job of that state. Not the job of other states who do not ban the doing of that thing.

    I would say that if it posed an undue burden I would agree with you. However, in this case 100% of sales already require an ID. All you would be doing here is redefining what is and what is not an acceptable form of identification.

    Your arguments are based not on burdens of enforcement but on the ease in which you favor allowing one state to undermine the laws of another which you disagree with.

    • #96
  7. Sabrdance Member
    Sabrdance
    @Sabrdance

    Spin: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?

    People keep invoking this argument.  I saw it at the Volokh Conspiracy.  It doesn’t seem very good.  Protection of the right to bear arms is actually in the Constitution.  Smoking Marijuana is not.

    To stick perfectly within Article I, this argument is roughly equivalent to “Federalism requires that the states have the right to tax shipping entering their ports.”  Well, yeah, except that there’s a clause in Article I that specifically says otherwise.

    • #97
  8. Sabrdance Member
    Sabrdance
    @Sabrdance

    Spin:

    Sabrdance: Thus I side with Nebraska and Oklahoma.

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

    I did say I am conflicted on the point.

    • #98
  9. EJHill Podcaster
    EJHill
    @EJHill

    ShellGamer: If I travel to Wyoming, buy a 30 bullet magazine and bring it back to Colorado, I’ve violated the law. But I don’t see how Wyoming has violated the Constitution.

    Except, unlike the law we’re arguing here, there are no federal restrictions on the size of LCMs.

    • #99
  10. ShellGamer Member
    ShellGamer
    @ShellGamer

    Sabrdance:

    Spin: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?

    People keep invoking this argument. I saw it at the Volokh Conspiracy. It doesn’t seem very good. Protection of the right to bear arms is actually in the Constitution. Smoking Marijuana is not.

    To stick perfectly within Article I, this argument is roughly equivalent to “Federalism requires that the states have the right to tax shipping entering their ports.” Well, yeah, except that there’s a clause in Article I that specifically says otherwise.

    You seem to be shifting the grounds of your point, by assuming that gun control is an independent violation of the Second Amendment. If you assume that Washington’s gun control restriction is constitutional, would you then assert that Idaho must take measures to aid its enforcement?

    I would distinguish your case, because the clause you cite regulates conduct by states, whereas the CSA regulates individual conduct. There is no Federal law requiring states to ban marijuana, so Colorado has not violated any Federal law. Individual who manufacture, distribute and possess pot in compliance with Colorado’s laws are those who violate the CSA.

    • #100
  11. 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.

    Funny, I don’t see any reference to Federal laws is this statement. The point of Federal laws is to make state X and Y’s laws superfluous. But that only works if the Feds enforces its laws, which was my original point.

    • #101
  12. Sabrdance Member
    Sabrdance
    @Sabrdance

    ShellGamer:

    Sabrdance:

    Spin: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?

    People keep invoking this argument. I saw it at the Volokh Conspiracy. It doesn’t seem very good. Protection of the right to bear arms is actually in the Constitution. Smoking Marijuana is not.

    To stick perfectly within Article I, this argument is roughly equivalent to “Federalism requires that the states have the right to tax shipping entering their ports.” Well, yeah, except that there’s a clause in Article I that specifically says otherwise.

    You seem to be shifting the grounds of your point, by assuming that gun control is an independent violation of the Second Amendment. If you assume that Washington’s gun control restriction is constitutional, would you then assert that Idaho must take measures to aid its enforcement?

    I would distinguish your case, because the clause you cite regulates conduct by states, whereas the CSA regulates individual conduct. There is no Federal law requiring states to ban marijuana, so Colorado has not violated any Federal law. Individual who manufacture, distribute and possess pot in compliance with Colorado’s laws are those who violate the CSA.

    Well, obviously if you assume the conclusion…

    As I said, I have no firm view on the point.  Colorado, however, is doing far more than just not enforcing Federal Law.  They are actively aiding the behavior in question.  Without meaning any moral equivalence, they are practically acting like the Northern States in the run-up to the Civil War who not only didn’t enforce the Fugitive Slave Act, but actively hindered it.

    • #102
  13. EJHill Podcaster
    EJHill
    @EJHill

    Sabrdance: Colorado, however, is doing far more than just not enforcing Federal Law. They are actively aiding the behavior in question

    And since they are taxing those transactions how legal is that revenue?

    • #103
  14. Jager Coolidge
    Jager
    @Jager

    ShellGamer:Finally caught up to Spin’s comments, and it reminded me of an example of an early comment. Colorado bans the use of magazines that hold more than 15 bullets by its residents. Are EJHill and Jaeger saying that other states must now pass laws prohibiting the sale of such magazines to Colorado residents, and perhaps requiring proof of non-residency?

    If I travel to Wyoming, buy a 30 bullet magazine and bring it back to Colorado, I’ve violated the law. But I don’t see how Wyoming has violated the Constitution.

    IF this were only state regulations then no states do not have to pass laws requiring proof of non-residency or prohibiting the sale. If Federal law limits magazines to 15 bullets and Wyoming sold 30 bullet magazines, then this would be a problem, particularly if this Wyoming law created new costs for Colorado.

    • #104
  15. Spin Inactive
    Spin
    @Spin

    EJHill: Your arguments are based not on burdens of enforcement but on the ease in which you favor allowing one state to undermine the laws of another which you disagree with.

    No.  My argument is based on the fact that I don’t think one state has the responsibility to enforce another states laws.  They certainly can do so, if they want.  But I don’t see it as a requirement.

    I’d like to know how much of a problem pot smoking really is for Oklahoma and Nebraska.  Is it just enforcing the ban on pot smoking?  Or are the pot heads causing actual trouble?

    • #105
  16. Western Chauvinist Member
    Western Chauvinist
    @WesternChauvinist

    Jager: 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.

    I think we agree. Then either the law should change to resolve the problem in favor of Colorado’s state right to enact laws regulating its pot industry (putting the onus on NE and OK to enforce their own more restrictive pot laws), or the federal government should enforce the existing law in Colorado. Right?

    • #106
  17. Tuck Inactive
    Tuck
    @Tuck

    ShellGamer: this strikes me as a good example of how the failure to respect one part of the Constitution results in subversion of other parts.

    Given that prohibition of marijuana at the Federal level is itself arguably unconstitutional, I agree.  But this is where letting judges and Congress make up laws without Constitutional authority gets you…

    • #107
  18. Jager Coolidge
    Jager
    @Jager

    ShellGamer: There is no Federal law requiring states to ban marijuana, so Colorado has not violated any Federal law.

    Colorado can have no obligation to ban marijuana and still violate/contradict Federal Law. As  I noted before Colorado did not just eliminate a ban and have no marijuana law. (this would be perfectly legal). Colorado told people they could have marijuana, grow marijuana and sell marijuana in State regulated stores.

    • #108
  19. ShellGamer Member
    ShellGamer
    @ShellGamer

    Sabrdance:

    As I said, I have no firm view on the point. Colorado, however, is doing far more than just not enforcing Federal Law. They are actively aiding the behavior in question. Without meaning any moral equivalence, they are practically acting like the Northern States in the run-up to the Civil War who not only didn’t enforce the Fugitive Slave Act, but actively hindered it.

    It’s the Feds responsibility to enforce the Federal law, and they’ve chosen not to do so. Does this amount to “actively aiding the behavior?” If so, why should CO’s assistance be subject to greater Supreme Court scrutiny than the Fed’s?

    • #109
  20. ShellGamer Member
    ShellGamer
    @ShellGamer

    Jager:

    ShellGamer: There is no Federal law requiring states to ban marijuana, so Colorado has not violated any Federal law.

    Colorado can have no obligation to ban marijuana and still violate/contradict Federal Law. As I noted before Colorado did not just eliminate a ban and have no marijuana law. (this would be perfectly legal). Colorado told people they could have marijuana, grow marijuana and sell marijuana in State regulated stores.

    I think this illustrates my point regarding the requested remedy. If CO repeals it regulation of the pot industry and stops taxing transactions, without making it illegal to use pot, how will this make it easier for NE and OK to enforce their pot bans? Or is the unstated assumption that the complete deregulation of pot in CO would prompt the administration to change course and start enforcing the CSA?

    • #110
  21. Jager Coolidge
    Jager
    @Jager

    Western Chauvinist:

    Jager: 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.

    I think we agree. Then either the law should change to resolve the problem in favor of Colorado’s state right to enact laws regulating its pot industry (putting the onus on NE and OK to enforce their own more restrictive pot laws), or the federal government should enforce the existing law in Colorado. Right?

    Yes the Federal government could/should enforce the existing laws in Colorado, the Federal drug laws could be changed to “allow” more flexibility to the states, or as a less tenable solution Colorado could tailor its law in a manner that still lets it “legalize” pot but reduces the costs to neighboring states. Ideally federal laws should be followed and/or changed to get a policy outcome but I could understand accepting modification of Colorado’s law so that there is no/less harm to other states.

    The only thing I am arguing against is the current situation. Pot is illegal by federal law, Colorado has legalized  and this is increasing costs in neighboring states who still follow the federal laws.

    • #111
  22. Western Chauvinist Member
    Western Chauvinist
    @WesternChauvinist

    EJHill: And since they are taxing those transactions how legal is that revenue?

    Oh, all kinds of legal gymnastics are being played out because of Colorado’s pot laws, including finding ways for pot producers and sellers to deposit their “ill-gotten” revenues in the bank without violating federal laws.

    The point is, [to the tune of the William Tell Overture] it’s the Feds, it’s the Feds, it’s the Feds, Feds, Feds…

    The Feds are arbitrarily enforcing the law!

    This will not end well.

    • #112
  23. Jager Coolidge
    Jager
    @Jager

    ShellGamer: If CO repeals it regulation of the pot industry and stops taxing transactions, without making it illegal to use pot, how will this make it easier for NE and OK to enforce their pot bans? Or is the unstated assumption that the complete deregulation of pot in CO would prompt the administration to change course and start enforcing the CSA?

    Yes. I have no citation but anecdotally it is my understanding that the Federal government still has an interest in enforcing the pot laws against “illegal” distributors and dealers, they have only shied away from enforcement against state regulated dealers. The Federal administration still enforces the CSA in other states. Further it is one thing to travel to Denver and try to find a random dealer and hope that this is not a DEA agent or that you are not about to be ripped off, to buy your pot. It is another, easier, thing to go to a state regulated store an complete a “legal” transaction.

    • #113
  24. EJHill Podcaster
    EJHill
    @EJHill

    Tuck: Given that prohibition of marijuana at the Federal level is itself arguably unconstitutional…

    An argument that no court has found valid. Until the Supremes give five votes on that it’s all wishful thinking.

    • #114
  25. Spin Inactive
    Spin
    @Spin

    Western Chauvinist: The Feds are arbitrarily enforcing the law!

    It’s not arbitrary at all.  The guys running the executive branch of the federal government don’t agree with a ban on the smoking of the mary jane, so they are choosing to turn a blind eye.  In the grand scheme of things, I’m not sure its that big a deal.

    • #115
  26. EJHill Podcaster
    EJHill
    @EJHill

    Spin: It’s not arbitrary at all.

    Anything that’s not codified is arbitrary.

    • #116
  27. Sabrdance Member
    Sabrdance
    @Sabrdance

    Western Chauvinist:

    EJHill: And since they are taxing those transactions how legal is that revenue?

    Oh, all kinds of legal gymnastics are being played out because of Colorado’s pot laws, including finding ways for pot producers and sellers to deposit their “ill-gotten” revenues in the bank without violating federal laws.

    The point is, [to the tune of the 1812 Overture] it’s the Feds, it’s the Feds, it’s the Feds, Feds, Feds…

    The Feds are arbitrarily enforcing the law!

    This will not end well.

    “William Tell Overture.”

    “1812 Overture” is “I march in Phantom ’cause I can’t play jazz.”

    • #117
  28. Spin Inactive
    Spin
    @Spin

    EJHill:

    Spin: It’s not arbitrary at all.

    Anything that’s not codified is arbitrary.

    I always thought arbitrary meant sort of “willy nilly”, as in, with no rhyme or reason.  But it does not in  fact mean that.  Just because it’s arbitrary doesn’t mean there isn’t rationale.  So I learned something today.

    But the point remains:  just because it’s arbitrary, doesn’t mean it’s a horribly bad thing.  That’s not me defending the Obama Administration.  It’s me pointing out that if they were arbitrarily not prosecuting people for doing something we all thought was ok, we wouldn’t be so chicken little about it.

    • #118
  29. Kozak Member
    Kozak
    @Kozak

    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.

    The marijuana is locally grown and used. Not interstate commerce.

    Also, since it’s a Federal law let the Feds police it.  The local authorities can just remove all local statutes and be done with it.  They are under no local obligation to enforce Federal statutes.  Hell the courts have ruled on Immigration that local authorities have no STANDING to enforce those laws.

    • #119
  30. Kozak Member
    Kozak
    @Kozak

    Fred Cole:

    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?

    Your “only Blacks “comment didn’t help here. LOL.

    • #120
Become a member to join the conversation. Or sign in if you're already a member.