On January 6, two days before Mexican authorities recaptured Joaquín Guzmán Loera, a.k.a. El Chapo, Oklahoma Attorney General Scott Pruitt pointed to another drug lord, this one hiding in plain sight: John Hickenlooper, a.k.a. the governor of Colorado. “The State of Colorado authorizes, oversees, protects, and profits from a sprawling $100-million-per-month marijuana growing, processing, and retailing organization that exported thousands of pounds of marijuana to some 36 States in 2014,” Pruitt writes in a Supreme Court brief joined by Nebraska Attorney General Douglas Peterson. “If this entity were based south of our border, the federal government would prosecute it as a drug cartel.”
Hickenlooper actually was a drug dealer of sorts before he got into politics, having cofounded Wynkoop Brewing Company, a Denver brewpub, in 1988. But he ended up running the drug trafficking organization described in Pruitt’s brief by accident. He was elected governor two years before Colorado voters decided, against his advice, to legalize marijuana. Pruitt and Peterson are trying to overturn that result, claiming that it hurt Oklahoma and Nebraska by encouraging an influx of Colorado cannabis. Their argument shows how readily some conservative Republicans let their anti-pot prejudices override their federalist principles.
Last month Solicitor General Donald Verrilli urged the Supreme Court not to hear Oklahoma and Nebraska’s challenge to marijuana legalization in Colorado. “Entertaining the type of dispute at issue here—essentially that one state’s laws make it more likely that third parties will violate federal and state law in another state—would represent a substantial and unwarranted expansion of this court’s original jurisdiction,” Verrilli writes. Federal law gives the Supreme Court “original and exclusive jurisdiction of all controversies between two or more States.” Verrilli rejects Oklahoma and Nebraska’s contention that the illegal smuggling of Colorado cannabis creates an interstate controversy:
Where the plaintiff State does not allege that the defendant State has “confirmed or authorized” the injury-inflicting action, there does not exist a “controversy” between the States appropriate for initial resolution under this Court’s exclusive original jurisdiction….This case does not satisfy the direct-injury requirement. Nebraska and Oklahoma essentially contend that Colorado’s authorization of licensed intrastate marijuana production and distribution increases the likelihood that third parties will commit criminal offenses in Nebraska and Oklahoma by bringing marijuana purchased from licensed entities in Colorado into those states. But they do not allege that Colorado has directed or authorized any individual to transport marijuana into their territories in violation of their laws. Nor would any such allegation be plausible.
In last week’s brief, Pruitt disagrees, likening marijuana produced and sold by Colorado-licensed businesses to air pollution that ineluctably wafts across the borders of other states. “Nebraska and Oklahoma can no more prevent Colorado’s marijuana from crossing its borders than it can prevent its winds from blowing and rivers from flowing,” he writes. Even while conceding the futility of prohibition, Oklahoma and Nebraska demand more of it, arguing that Colorado should be forced to assist their vain effort to prevent people from getting high by changing its laws.
Since it is beyond dispute that states have no obligation to punish every act that Congress decides to treat as a crime, Oklahoma and Nebraska are not asking Colorado to recriminalize production, possession, and distribution of marijuana. But they argue that licensing, regulating, and taxing marijuana businesses violates the Controlled Substances Act (CSA) and therefore the Constitution’s Supremacy Clause, which makes congressional legislation “the supreme law of the land.” The upshot is that a victory by Oklahoma and Nebraska could exacerbate the problem they perceive.
“If plaintiffs were to prevail,” Verrilli writes, “the result might be that Colorado’s regulatory regime would be enjoined but the sale and possession of marijuana would still be lawful under Colorado’s laws. Plaintiffs’ standing argument therefore appears to rest on the premise that Colorado’s scheme, by assertedly ‘condoning the intrastate manufacture, distribution, and possession of an illegal drug,’ gives rise to greater harms than would a regime of legalization with no regulation.”
The prospect of a decriminalized and unregulated marijuana industry is one of the reasons the Justice Department itself declined to challenge legalization in Colorado. But since it reserves the right to do so if things go horribly wrong, Verrilli has to be careful about questioning Oklahoma and Nebraska’s argument that state marijuana regulation creates a “positive conflict” with the CSA, meaning that “the two cannot consistently stand together.” Instead he says the existence of such a conflict might hinge on “the practical efficacy of Colorado’s regulatory system in preventing or deterring interstate marijuana trafficking.” As Pruitt notes, “DOJ has threatened that, if legalizing States’ ‘enforcement efforts are not sufficiently robust to protect against [such] harms’ it ‘may seek to challenge the regulatory structure itself’—presumably contending, as Nebraska and Oklahoma do here, that the CSA preempts contrary state regulation.”
The Justice Department clearly agrees with Pruitt on at least one point. “There is no dispute about the United States’ authority to enforce the CSA,” Verrilli says. But that’s not quite true. The Supreme Court did say, in the 2005 case Gonzales v. Raich, that the U.S. government has constitutional authority to enforce its ban on marijuana even in states that decide to legalize it for medical use. But that decision, which rejected a challenge brought by two medical marijuana patients in California, was based on a reading of the power to “regulate commerce…among the several states” so broad that it accommodates pretty much anything Congress wants to do. According to the Court, the Commerce Clause covers a plant in a cancer patient’s closet or a bag of homegrown buds in her nightstand. “If Congress can regulate this under the Commerce Clause,” observed dissenting Justice Clarence Thomas, “then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers.”
The Commerce Clause has been the most important excuse for expanding the federal government since the New Deal, and Raich stretched it further than ever before. It is precisely the sort of decision that an avowed federalist like Pruitt, who has resisted Obamacare as an unconstitutional extension of federal power, should condemn. Instead he is relying on it to force his policy preferences on a neighboring state.
This month Texas Gov. Greg Abbott showed what a more consistent federalism looks like. Abbott proposed nine constitutional amendments aimed at restoring the balance of power between the states and the federal government. Number one on his list was an amendment that would “prohibit Congress from regulating activity that occurs wholly within one State,” in line with the original understanding of the Commerce Clause. In a position paper that draws on the work of libertarian law professor Randy Barnett, who represented the plaintiffs in Raich, Abbott argues that the power to regulate interstate commerce is limited to activities that are both interstate and commerce (meaning the trade or exchange of goods). He criticizes Raich at length, asking, “What constitutional provision conceivably could allow federal agents to raid a home and destroy plants that were planted, grown, and consumed inside the borders of one State and in accordance with that State’s law?”
Although Abbott does not say so explicitly, the implication of his argument is that federal prohibition—not just of marijuana but of cocaine, heroin, LSD, lawn darts, “assault weapons,” or “partial birth” abortion—is unconstitutional insofar as it extends to purely intrastate activity. In other words, even if Oklahoma and Nebraska were right that Colorado’s regulation of the marijuana industry violates the CSA, it should not matter, because the CSA itself is unconstitutional. When it comes to the Constitution, not all conservatives suffer from marijuana-related memory loss.
Jacob Sullum is a senior editor at Reason magazine. This article originally appeared at Forbes.com.
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