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. ShellGamer Member
    ShellGamer
    @ShellGamer

    Mendel:

    Tuck:

    Mendel: Shellgamer: you constantly claim that one of the big problems here is the Obama administration’s unwillingness to enforce the CSA.

    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.

    I tried to address this in #54, but let me approach this by asking you to reflect on what “preempt” or “nullify” would mean in this context.

    CO has passed laws regulating the manufacture and distribution of pot within the state. If these laws are nullified (or their implementation is enjoined by the Supreme Court, as requested by NE/OK), then CO would not have any limitations on the manufacture and distribution of pot. How would this remedy NE/OK’s purported enforcement problems?

    This seem to be a point made in Tuck’s link. (Although you have to think twice when Georgetown law professors start agreeing with you.) The brief concedes that the CSA does not require CO to prohibit pot use. So how are these states more injured by a regulated pot industry in CO than by a completely unregulated one?

    The unstated premise underlying the suit is that, if CO cannot have a regulated (and taxed) pot industry, either (a) CO will revert to banning pot or (b) the administration will start enforcing the CSA in CO. Outcome (a) would undermine federalism by impairing the independent sovereignty of CO. Outcome (b) would use CO as a pawn in the battle against the administration’s abrogation of its duty to execute the laws of the U.S.

    BTW, thank you Tuck for the link. It confirms I’m not misconstruing the brief.

    • #151
  2. Tom Meyer Contributor
    Tom Meyer
    @tommeyer

    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.

    I’m just catching up on the comments, but — while I agree that Fed law trumps state constitutional amendments — isn’t there also an enforcement issue? As in, if pot is legal under Colorado law, then shouldn’t drug enforcement within Colorado be the responsibility of the Feds (not that I would want that)?

    I realize that Colorado’s creation of a licensing/tax system for pot rather clouds the issue.

    • #152
  3. Mendel Inactive
    Mendel
    @Mendel

    I think I understand your points, but I guess I am trying to figure out what the difference is between “decriminalization” and “legalization.”

    I understand that Colorado would be well within its rights to remain neutral on marijuana, to allow its sale and use within its borders, and dare the Federal government to enforce the CSA itself (and that this would actually make the situation worse for NE and OK).

    But Colorado has legalized marijuana to the extent that certain forms of its sale and use are not only not prosecuted, but are licensed and taxed. And it seems to me that licensing distributors and collecting taxes on the sale of a substance enshrines its legality to a much further extent than simple “decriminalization,” and that this step would bring CO into conflict with the CSA.

    Or to put it another way, if this is not a clear example of a conflict between state and federal law which would fall under the Supremacy Clause, what is?

    • #153
  4. Tuck Inactive
    Tuck
    @Tuck

    ShellGamer: Although you have to think twice when Georgetown law professors start agreeing with you.

    LOL.  You’re in good company—this time.

    • #154
  5. Tom Meyer Contributor
    Tom Meyer
    @tommeyer

    Mendel: But Colorado has legalized marijuana to the extent that certain forms of its sale and use are not only not prosecuted but are licensed and taxed. And it seems to me that licensing distributors of and collecting taxes on the sale of a substance enshrines its legality to a much further extent than simple “decriminalization,” and that this step would bring CO into conflict with the CSA. Or to put it another way, if this is not a clear example of a conflict between state and federal law which would fall under the Supremacy Clause, what is?

    And I agree on that.

    I wonder if CO could get around it by removing the laws that specifically target marijuana for taxation and regulation (i.e., if they treated its manufacture like that of any other crop).

    • #155
  6. Tom Meyer Contributor
    Tom Meyer
    @tommeyer

    Also, seconding others in wondering whether the CSA is constitutional to begin with.

    • #156
  7. Tuck Inactive
    Tuck
    @Tuck

    Mendel: Or to put it another way, if this is not a clear example of a conflict between state and federal law which would fall under the Supremacy Clause, what is?

    It would be a clear example if Colorado passed a law banning people from driving into other states while having pot in their possession.

    Regulating inter-state commerce is clearly a Federal prerogative, explicitly granted:

    “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

    This is my biggest problem with gun regulation: some states do not recognize each other’s permits, and ban travel.  Both are violations of the Constitution.  Imagine if cars were regulated in the same way guns are…  Yet the courts and the Feds let them get away with it.

    • #157
  8. Tuck Inactive
    Tuck
    @Tuck

    Tom Meyer, Ed.: Also, seconding others in wondering whether the CSA is constitutional to begin with.

    Damn libertarian! ;)

    • #158
  9. EJHill Podcaster
    EJHill
    @EJHill

    Mendel – It’s not true legalization. It regulates what you can get away with.

    Colorado citizens may have more than out of state folks and don’t take anything on Federal land where the CSA will be enforced to the hilt.

    • #159
  10. Mendel Inactive
    Mendel
    @Mendel

    Tuck:

    Mendel: Or to put it another way, if this is not a clear example of a conflict between state and federal law which would fall under the Supremacy Clause, what is?

    It would be a clear example if Colorado passed a law banning people from driving into other states while having pot in their possession.

    That doesn’t seem like a Supremacy Clause issue as much as an issue of a state exceeding its Constitutional authority.

    I had always understood (from high school history class, mind you) the Supremacy Clause to pertain to a situation in which both a state law and a federal law were both constitutional on their own, but happened to conflict with each other.

    But a Colorado law prohibiting interstate trafficking of pot would be unconstitutional due to infringing into the Federal government’s jurisdiction, and thus the Supremacy Clause would not even need to be invoked.

    • #160
  11. Mark Coolidge
    Mark
    @GumbyMark

    Mendel:But Colorado has legalized marijuana to the extent that certain forms of its sale and use are not only not prosecuted, but are licensed and taxed. And it seems to me that licensing distributors and collecting taxes on the sale of a substance enshrines its legality to a much further extent than simple “decriminalization,” and that this step would bring CO into conflict with the CSA.

    Or to put it another way, if this is not a clear example of a conflict between state and federal law which would fall under the Supremacy Clause, what is?

    In Raich v Gonzalez the Supreme Court faced a situation where the plaintiff lived in California which had passed a law allowing the use of medical marijuana in certain limited circumstances.  The Court upheld the ability of the DEA under the CSA to prosecute those who used marijuana in compliance with California law but it did not rule that the law itself violated the Supremacy Clause.  Both laws can exist at the same time.

    • #161
  12. Mendel Inactive
    Mendel
    @Mendel

    EJHill:Mendel – It’s not true legalization. It regulates what you can get away with.

    This is exactly my question: how is licensing and taxing the selling of a substance not “true” legalization?

    And if pot is not truly legal in CO and WA, then what is true legalization? Is it actually legal to drive a car, or is it just something the state lets us get away with?

    I am not the brightest when it comes to legal matters, so I would be glad to learn about the vagaries of legalization vs. decriminalization vs. criminalization.

    • #162
  13. Mendel Inactive
    Mendel
    @Mendel

    Mark:

    Mendel:

    Or to put it another way, if this is not a clear example of a conflict between state and federal law which would fall under the Supremacy Clause, what is?

    The Court upheld the ability of the DEA under the CSA to prosecute those who used marijuana in compliance with California law but it did not rule that the law itself violated the Supremacy Clause. Both laws can exist at the same time.

    So is there any theoretical law a state could pass which would conflict with the CSA? Could a state pass a law selling marijuana from state stores (like state liquor stores, just for pot) and still not have it nullified under the Supremacy Clause?

    • #163
  14. Tuck Inactive
    Tuck
    @Tuck

    Mendel: That doesn’t seem like a Supremacy Clause issue as much as an issue of a state exceeding its Constitutional authority.

    See the Wikipedia page, it’s got some good examples.  One of the examples they list is:

    “In Pennsylvania v. Nelson, 350 U.S. 497 (1956) the Supreme Court struck down the Pennsylvania Sedition Act, which made advocating the forceful overthrow of the federal government a crime under Pennsylvania state law. The Supreme Court held that when federal interest in an area of law is sufficiently dominant, federal law must be assumed to preclude enforcement of state laws on the same subject; and a state law is not to be declared a help when state law goes farther than Congress has seen fit to go.”

    IANAL, but I think my example’s consistent with that.

    Of course, “The supremacy of federal law over state law only applies if Congress is acting in pursuance of its constitutionally authorized powers.”

    • #164
  15. Mark Coolidge
    Mark
    @GumbyMark

    Mendel:

    Mark:

    Mendel:

    Or to put it another way, if this is not a clear example of a conflict between state and federal law which would fall under the Supremacy Clause, what is?

    The Court upheld the ability of the DEA under the CSA to prosecute those who used marijuana in compliance with California law but it did not rule that the law itself violated the Supremacy Clause. Both laws can exist at the same time.

    So is there any theoretical law a state could pass which would conflict with the CSA? Could a state pass a law selling marijuana from state stores (like state liquor stores, just for pot) and still not have it nullified under the Supremacy Clause?

    The question is (and this also goes to Tuck’s last comment) is whether Federal law in an area preempts a State law in which case the State law will be struck down.  Federal Courts will find preemption either if it is express; that is Congress explicitly states in the law that it intends to preempt state law or implied which involves a more complicated analysis.  The CSA apparently contains no express preemption.

    • #165
  16. EJHill Podcaster
    EJHill
    @EJHill

    To me, legalization would mean unlimited sale and possession of unlimited amounts. Decriminalization is more of a crack in the door. OK, you have an ounce or less, we understand its a controlled substance BUT…

    • #166
  17. ShellGamer Member
    ShellGamer
    @ShellGamer

    Black’s Law Dictionary defines legalize as “To make legal or lawful; to confirm or validate what was before void or unlawful; to add the sanction and authority of law to that which before was without or against law.” Under the first clause, simply repealing a ban on pot would be legalizing it. Under the other definitions, CO would seem to have to do something more.

    Decriminalize is not defined. As used in articles I’ve read, it involves reducing the sanctions for violating pot ordinances. For example, possession of small amounts for personal use is treated as a misdemeanor, with small fines and no risk  of imprisonment. It treats marijuana possession (and possibly distribution) like a traffic violation.

    A policy of lax enforcement might also be viewed as decriminalization.

    I’m not sure that the distinction makes a difference in this case, although decriminalization would probably lead to the same enforcement problems identified in the complaint. But those aren’t the facts; CO “legalized” pot within any accepted definition. And the brief makes your point that CO has done more than simply allowed people to use pot in its jurisdiction.

    Again, I would invite you to ponder what “nullify” means. Let’s go back to the Supremacy Clause itself:

    This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

    The clause doesn’t say that conflicting state laws are “null and void.” It says that state judges are bound by federal law, even if it conflicts with their state constitution or laws. Congress did not authorize state authorities to enforce the CSA, so our state judges shouldn’t have to deal with such conflicts, at least in criminal cases.

    To reiterate: everyone in CO who manufactures, distributes and possesses pot violates the CSA, because the CSA is the “supreme law of the land.” But Congress invested the attorney general, not the states, with the exclusive power to enforce the CSA. CO has determined to regulate, rather than proscribe, these activities, and the AG has decided not to enforce the CSA in CO. But this doesn’t change the CSA’s status as the supreme law of the land.

    • #167
  18. Mendel Inactive
    Mendel
    @Mendel

    Mark:

    Mendel:

    So is there any theoretical law a state could pass which would conflict with the CSA?

    Federal Courts will find preemption either if it is express; that is Congress explicitly states in the law that it intends to preempt state law or implied which involves a more complicated analysis.

    And to my mind, a state law which says that all marijuana sold in licensed stores will be taxed at $x/oz would be implicitly preempted by a federal law which says that marijuana may not be sold at all.

    But I am a legal imbecile, so I’ll stop my protesting here and just accept that I’m missing something.

    • #168
  19. Tuck Inactive
    Tuck
    @Tuck

    Mendel: But I am a legal imbecile, so I’ll stop my protesting here and just accept that I’m missing something.

    LOL.  You’re not the one with a problem!

    ““If the law supposes that,” said Mr. Bumble,… “the law is a ass—a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience—by experience.””

    I recall when I was pre-law (a path I did not pursue) and it was explained to me that studying law would teach me how to think logically.

    Learning programming did that.

    And I’ve realized since that learning the law is primarily a matter of memorizing ridiculous and often contradictory “principles” in laws that would never compile if one attempted to code them in the manner in which a programmer understands—in accordance with actual rules of logic.

    My friend the attorney was quite upset when he told me that going to law school teaches you how to think, and I laughed at him.  It may teach you how to think like a lawyer, but that’s not what I consider to be thinking…

    And now I spend most of my time attempting to write laws and regulations into computer code… So I guess the Law had the last laugh. :<

    • #169
  20. Mendel Inactive
    Mendel
    @Mendel

    ShellGamer:Again, I would invite you to ponder what “nullify” means. Let’s go back to the Supremacy Clause itself:

    The clause doesn’t say that conflicting state laws are “null and void.” It says that state judges are bound by federal law, even if it conflicts with their state constitution or laws.

    I suppose this is where I was getting confused.

    I had assumed that in case of a conflict between federal and state law, the issue would eventually go to court and the state law would be declared null/void/kablooie.

    I’ll admit that the thought of a Colorado taxman standing at the back of the pot store collecting taxes, while at the same time a DEA agent stands outside the front of the same store apprehending customers as they walk out, strikes me as fairly absurd. But then again – as Tuck commented – this is the law we’re talking about.

    • #170
  21. ShellGamer Member
    ShellGamer
    @ShellGamer

    Mendel:

    ShellGamer:Again, I would invite you to ponder what “nullify” means. Let’s go back to the Supremacy Clause itself:

    The clause doesn’t say that conflicting state laws are “null and void.” It says that state judges are bound by federal law, even if it conflicts with their state constitution or laws.

    I suppose this is where I was getting confused.

    I had assumed that in case of a conflict between federal and state law, the issue would eventually go to court and the state law would be declared null/void/kablooie.

    I’ll admit that the thought of a Colorado taxman standing at the back of the pot store collecting taxes, while at the same time a DEA agent stands outside the front of the same store apprehending customers as they walk out, strikes me as fairly absurd. But then again – as Tuck commented – this is the law we’re talking about.

    You thought correctly, and it is fairly absurd. As Professor Scalia once said to me, “Your beginning to think like a lawyer.” He meant it as a complement.

    • #171
  22. Mark Coolidge
    Mark
    @GumbyMark

    Mendel:

    Mark:

    Mendel:

    So is there any theoretical law a state could pass which would conflict with the CSA?

    Federal Courts will find preemption either if it is express; that is Congress explicitly states in the law that it intends to preempt state law or implied which involves a more complicated analysis.

    And to my mind, a state law which says that all marijuana sold in licensed stores will be taxed at $x/oz would be implicitly preempted by a federal law which says that marijuana may not be sold at all.

    But I am a legal imbecile, so I’ll stop my protesting here and just accept that I’m missing something.

    I’m not sure I understand either!  I’m just trying to figure out and explain what the law is in this area, which is not necessarily what I think it should be.

    • #172
  23. Tuck Inactive
    Tuck
    @Tuck

    Mendel: I had assumed that in case of a conflict between federal and state law, the issue would eventually go to court and the state law would be declared null/void/kablooie.

    Well, in a logical world, the case would go to the Court, which would say: You had to amend the Constitution to prohibit alcohol, you didn’t do that for marijuana, therefore Drug Prohibition is unconstitutional, and Colorado, like every other state, has jurisdiction.  Since they didn’t cede it to the Federal Government.

    But that’s thinking like a libertarian. Or a programmer. :)

    P.S. Alternatively, of course, they would have amended the Constitution to prohibit drugs, and we wouldn’t be having this debate.

    I’d still think it’s a bad idea, but at least it would be a legal bad idea.  Two very different notions.

    • #173
  24. user_280840 Inactive
    user_280840
    @FredCole

    Unmentioned is that legalization also violates international treaties that the US is a party to.

    • #174
  25. Tuck Inactive
    Tuck
    @Tuck

    Fred Cole: Unmentioned is that legalization also violates international treaties that the US is a party to.

    Huh, now that’s interesting…

    New marijuana laws in U.S. violate international treaties

    “Like many treaties, there isn’t a way to enforce violations.”

    • #175
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