Last month, Scott Pruitt and Jon Bruning, respective attorneys general of Oklahoma and Nebraska, filed a lawsuit against Colorado because of that state’s legalization of marijuana in 2012. Their claim is that the legalization creates a public nuisance in that it has a spillover effect on bordering states. For example, bordering states are having to spend more on their law enforcement to keep marijuana out.
As a legal matter, the attorneys general are relying primarily on the Controlled Substance Act (CSA) and the Supremacy Clause. The CSA regulates or bans a wide variety of substances. In marijuana’s case, the federal government has completely banned it in almost all circumstances. The Supremacy Clause of the Constitution provides that federal laws “made in pursuance” of the Constitution trump all state laws and constitutions.
The two states are asking the Supreme Court to do two things, broadly speaking. First, they’d like the provisions of the Colorado constitution and laws that are meant to enable the operation of marijuana-related businesses to be stricken down since it conflicts with federal law. Secondly, they seek compensation for their increased costs.
The latter of these ideas isn’t absurd. Before Congress began to regulate pollution, state lawsuits against one another for environmental damage weren’t uncommon. One hundred years ago, the Supreme Court limited copper production in Tennessee at the request of Georgia. Payment is a lighter hand than an injunction and might be appropriate in this case.
However, the request to strike down Colorado laws is both imprudent as a policy and an affront on federalism. If Oklahoma and Nebraska succeed, only the parts of Colorado law that regulate and determine how marijuana-related businesses are to operate would be struck down. Personal use of marijuana would still be decriminalized under Colorado law. Such a situation would result in marijuana being less controlled than it is now.
Worse yet, the constitutionality of the CSA itself is based on the 2005 case “Gonzales v. Raich,” which in turn has its roots in an overly expansive view of the commerce clause that has been too common since “Wickard v. Filburn” in 1942.
After “Wickard,” courts have recognized that Congress, since it has the power “to regulate Commerce…among the several States,” must also have the power to regulate actions that are neither commercial nor involving more than one state, so long as the action has a direct impact, no matter how insignificant, on interstate commerce. Since “Wickard,” Congress’s commerce power has only been checked a handful of times.
“Gonzales” relies on this view of the commerce clause. It upheld the federal ban on marijuana despite California’s allowance of it for medicinal purposes.
Attorneys General Pruitt and Bruning are not advocates for expansive federal power. Both filed lawsuits against the federal government because they believed the Affordable Care Act was beyond congressional authority. Those who care about federalism ought to work to see “Gonzales” overturned, not use it or laws it allows as a legal justification.
None of this is to say anything about the wisdom in decriminalizing marijuana at the state level. It’s just to say that those who care about federalism shouldn’t rely on a federal power that didn’t exist before nine men created it in 1942. The federal government can ban the sale of marijuana across state lines, but stopping Colorado from implementing its own policy within its borders would be an overstep of federal power.