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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.
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Then they should set up enforcement checkpoints at the border. California has stops when you enter for agricultural products. Do the same.
Ever drive to California?
Agricultural Checkpoints. ” Sir do you have any agricultural products in your vehicle?” Meanwhile Rover is walking next to your car nose in the air. Perfectly legal.
Stupid, but legal.
Please show me where the Constitution prohibits the smoking of marijuana.
“The powers not delegated to the United States by the Constitution,
nor prohibited by it to the States, are reserved to the States respectively,
or to the people.”
If you read what the prohibitionists said back in the day, they based their arguments for prohibition on coarse racist stereotypes.
If I may quote Harry J. Anslinger:
“Most marijuana smokers are Negroes, Hispanics, jazz musicians, and entertainers. Their satanic music is driven by marijuana, and marijuana smoking by white women makes them want to seek sexual relations with Negroes, entertainers, and others.”
As legal as the federal income taxes on Al Capone for his bootlegging?
Yeah and I’ve seen Reefer Madness…
Woops! Thanks! Fixed.
Those were the days.
So the states have absolutely no recourse if the Congress passes a law that’s unconstitutional? They signed all their rights away?
“The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;–to all cases affecting ambassadors, other public ministers and consuls;–to all cases of admiralty and maritime jurisdiction;–to controversies to which the United States shall be a party;–to controversies between two or more states;–between a state and citizens of another state;–between citizens of different states;–between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.”
Disputes between the states and the Federal Goverment over Constitutional matters are not included in that list…
They gave up their trump card when they gave away the Senate. All they have left is the Convention.
If the neighboring state decides to be a sanctuary for illegal aliens can the same argument apply?
If California allows illegals doesn’t that force Arizona to patrol their western border along with their southern border?
Except the Justice department, and the courts won’t allow Arizona to enforce those federal laws.
Fair point, but the Constitution was a document of ceded powers. They didn’t cede the power to ban these substances, and they didn’t cede the power to decide which acts are Constitutional as far as concerns states versus the Feds.
So the unconstitutional actor here is Congress and the Executive, for passing the CSA in the first place, not Colorado for passing a law that’s their’s to pass under the Constitution.
We’re not going to take the country back by sitting around and waiting for five Justices to give us permission.
Don’t forget, the Constitution is not a suicide pact.
The Supreme Court could easily apply the principle of economic externalities in a case like this. If Nebraska and Kansas can show a direct link between Colorado’s law and increased law enforcement and health care costs for its neighbors, then the court can re-apply those costs back to Colorado. It’s the same principle used to compel factories, etc. producing waste that damages surrounding communities and the environment to pay the costs of reparations and cleanup.
The one regarding Constitutionality with Prohibition as the example and to which you ascribed institutional racism as the reason for each.
Not helpful and therefor your answer to Kozak doesn’t count.
Sorry about that EJ – my point was that according to her own accounts, she does travel for her work, although the monies are paid in Nevada.
It was a rebuttal of your comment (#40) “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.” <emphasis added>
I pointed out the same thing to my co-worker. I had never heard of internal border control until I was 23 and on my way to California to learn to fly the B-52. I thought these things only existed in the Soviet Union.
Retirees use a DOD ID and are not enjoined from using marijuana – apart from the injunction regarding possession on military installations.
This is definitely not correct. The Federal government by the constitution is a limited government, and may only pass laws within its allowed sphere. In a similar fashion, states may not pass laws affecting the areas they ceded to the Federal government by the constitution. Thus if one considers the set of all allowable Federal Laws, and the set of all allowable State laws, we see areas reserved to each and not both and a zone of overlap, where the Supremacy clause applies. Where Federal law is unconstitutional, the Supremacy clause has no effect, and state laws may exist. This case is interesting in that under the original understanding of the commerce clause, the CSA could have banned importation or export of selected substances from the US, and forbidden interstate commerce in those substances, but it could NOT have banned intrastate commerce in the same substances. We owe much of the growth in the Federal Government, and the difficulties in resolving this case, due to what was one of the worst supreme court mistakes in history, in my limited opinion, Wickard v Filburn, where a Farmer was held in violation of Federal Law, because intrastate behavior might have impact on interstate behavior.
Wickard v Filburn should be overturned but trillions of dollars of Federal and private economic activity would be impacted, so I am not holding my breath. However as a result, the likely outcome here will either construct yet more rickety strange justifications, or will grow the unjustified power of the Federal behemoth yet more.
Absent Wickard, the Feds could ban interstate commerce in substances, but intrastate, they would be subject to state law only. Feds would be limited to catching users who carry or ship controlled substances across state lines , and the states responsible for behavior intrastate. This is a much saner approach, and the reason, alcohol ban required constitutional amendment in early 1900s, vs just a Federal Statute. Wickard didn’t happen until 1942.
I agree with you. I was talking in terms of morality rather than Constitutionality. I have a nasty habit of being unclear which I am using.
Great comment, and the same point I was trying to get to in a more round-about fashion.
I think the notion that we must obey the Supreme Court even in its errors is one of the most harmful ideas possible.
“When his great rival, Stephen Douglas, criticized him for refusing to accept the Court’s word as final on this question, Lincoln replied that each branch of the government has a right to its own interpretation of its own powers. He made this argument as a public man who was clearly aspiring to elected office. In other words, Lincoln’s critique of the Dred Scott decision was intended to signal that if he were elected to the Senate, he would vote for the restoration of the Missouri Compromise, regardless of what the Supreme Court had said about its constitutionality.
“If Lincoln were to follow the script written by today’s Republican leaders, he would have expressed his disappointment, conceded that Congress had no authority over slavery in the federal territories, and then observed that the fight over slavery would now go on in the territorial legislatures. He would have, in other words, accepted the Court’s claim that the people of the United States and their representatives had no authority over the slavery question. This he did not do.
“Conversely, if today’s Republicans were to follow Lincoln’s example, they would mount a sustained critique of the Court’s intrusion on Congress’s authority and would commit themselves to enacting new legislation in defense of marriage, regardless of the Court’s effort to invent hitherto unheard-of constitutional meanings to forbid them from doing so.”
I think that what Colorado is doing is well within the example described above.
This is a great point that I was pondering last night. NE/OK are seeking an injunction, not money damages. This is another reason for thinking the suit is about making CO change its laws, using the purported enforcement costs as a pretext. (The enforcement problems are simply alleged in the brief and the complaint; the states won’t be required to submit evidence until the Court decides to take the case.) When else have we seen politicians pass up an opportunity to raise revenue from people who can’t vote in their elections.
Monetary compensation would be a more efficient answer to the purported enforcement costs. It is possible that CO could make more money selling pot to people from NE and OK than the cost to those states of detecting and apprehending those smuggling pot back into those states.
This approach would also give CO an incentive to adopt some of the preventive measures suggested by EJHill. Requiring out-of-state buyers to consume on the premises would reduce demand for pot, but the sales taxes on pizza and munchies might offset the loss in pot taxes.
Just as a point of emphasis, the Farmer’s intrafarm behavior was held to be subject to the Commerce Clause. The wheat was raise for personal consumption. Which is why the CSA even applies to growing your own pot and smoking it yourself.
Which is why I included Congress in my initial list of constitutional miscreants. I don’t see how a constitution can work if the courts are the only check on unconstitutional behavior. Every branch–the legislative, the executive and (in a federal system) the states–must take their constitutional responsibilities and limits seriously. Devising libertarian exceptions to this principle (qua Mr. Cole) does more potential harm to personal liberty than good.
Agreed, we’ve tried that experiment, and it failed. The courts are barely a speed-bump, and mostly reluctant to even be that.
“Rivkin and Price Foley make a telling concession in a single important sentence: “States cannot be required to enforce federal law.” This is the key. States cannot be compelled by Congress to use their legislative powers to outlaw activity. Such “commandeering” was ruled unconstitutional in New York v. United States even where Congress is exercising its Commerce Clause powers. What Rivkin and Price Foley are implicitly conceding is that states are entirely free to “legalize” or decriminalize all drug offences entirely. Put another way, they cannot be compelled to criminalize and prosecute such activity under state law….”
“… Nebraska and Oklahoma’s beef is with the Obama administration for failing to enforce the CSA, which may be a breach of the President’s duty to take care that the laws be faithfully executed. But this failure does not create a remedy against a sister state. And Gonzales v. Raich says nothing of the kind.”
Read the whole thing.
Shellgamer: you constantly claim that one of the big problems here is the Obama administration’s unwillingness to enforce the CSA.
But why does that make a difference regarding the legal status of Colorado’s marijuana legalization? Doesn’t the Supremacy Clause apply to all Federal laws on the books, not just the ones currently being enforced?
In other words, if there is a Federal law banning the use of marijuana, wouldn’t that law preempt state law merely by its existence?
See my comment above. I think it answers this question.
I read the comment, but don’t see how it applies to my question.
Edit: The article mentions that the existence of the CSA does not compel Colorado to ban marijuana. Fine.
But there is a difference between not banning a substance and passing a law actively condoning the use of the same substance, is there not? And it seems to me that this latter step would be automatically nullified by the CSA through the Supremacy Clause regardless of whether the CSA was actively being enforced or not.
That’s specifically the point that the post linked to above addresses:
“As I acknowledged in my previous post, Nebraska and Oklahoma’s most plausible claim is that, by employing such regulation, Colorado is actively “aiding and abetting” the violation of federal law under the CSA, rather than merely passively permitting such violations. That perhaps while Congress may not mandate that states criminalize marijuana, it could still prohibit or bar states from regulating and thereby “facilitating” marijuana possession, use, and sale.
“This claim assumes, however, that the aiding and abetting section of the CSA applies to states. But the Supreme Court in Gregory v. Ashcroft said that any such interference with state police powers requires a “clear statement” in federal law, which the CSA lacks. Indeed, the CSA insists it does not preclude local regulation.”
So Colorado—Constitutional issues around the CSA aside—is following the letter of the law of the CSA. The Feds are free to go into CO and arrest people smoking pot, and the Colorado police are free not to.