The Volokh Conspiracy
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Writing in the Wall Street Journal (paywall), David Rivkin and Elizabeth Price Foley offer their defense of the lawsuit brought by Nebraska and Oklahoma seeking to enjoin the operation of Colorado's new legalization of recreational marijuana. Ilya Somin, Jonathan Adler and I have been highly skeptical of the merits of this lawsuit under existing doctrine. Although Rivkin and Price Foley's column is lengthy and impassioned, I remain unconvinced. Let me explain why. They write:
Many conservatives have criticized Nebraska and Oklahoma for being "fair-weather federalists" because their claims hinge, in part, on Gonzales v. Raich, a 2005 Supreme Court decision, upholding the broad reach of Congress's power to regulate commerce.
No, I criticized the lawsuit for misreading the Raich case far more broadly than what it actually held. Raich held that California's medical marijuana laws did not immunize citizens from federal prosecution for violating the federal Controlled Substances Act. It said not one word about the Controlled Substances Act preempting California's medical marijuana regulations, which remain in effect and operating to this day. Rivkin and Price Foley accurately summarize the Court's decision in Raich this way (my emphasis):
The Raich majority refused to create a CSA "exemption" for medicinal marijuana, reasoning that "a nationwide exemption for the vast quantity of marijuana . . . locally cultivated for personal use . . . may have a substantial impact on the interstate market for this extraordinarily popular substance." It concluded that the CSA was a valid exercise of the congressional power to regulate interstate commerce and that "marijuana possession and cultivation 'in accordance with state law' cannot serve to place respondents' activities beyond congressional reach."
Yes, for better or worse, this is what Raich held. Nothing in this summary addresses the question of whether California's regulatory scheme was thereby preempted by the CSA and there is good reason to doubt such a claim.
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.
That such state decriminalization would be contrary to federal policy as expressed in the CSA is wholly immaterial. Raich says that Colorado's action in no way restricts the power of Congress, which may make such intrastate activity in Colorado criminal. And the federal government is free to enforce their prohibition within the state of Colorado. But Congress cannot make Colorado pass a law criminalizing marijuana possession and use, even if Colorado's failure to do so "affects" other states. Period. The only constitutional remedy for this interstate effect is a federal law like the CSA that will be enforced by the federal government.
But look what Colorado has actually done here. Rather than legalize all marijuana possession and sale, Colorado used its police power to regulate that activity, which means legalizing activity that conforms with its regulation. Marijuana possession and sale that does not conform to the regulation remains illegal and criminal. Whatever effect completely unregulated regulation may have on other states is diminished rather than increased by Colorado's intrastate regulation and restriction of the marijuana trade.
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.
Perhaps Rivkin and Price Foley have in mind on some version of the Dormant Commerce Clause, which empowers the courts to invalidate state laws that interfere with interstate commerce where Congress has not spoken. Only here they are taking the further step of claiming that the courts may invalidate state laws that interfere, not with interstate commerce, but with Congress's prohibition of interstate commerce. But they assert no such theory, and neither does Nebraska or Oklahoma, perhaps because they fear that Justices Scalia and Thomas would be unreceptive to such a claim.
Be this as it may, if states cannot be commandeered to make marijuana illegal, then their failure to do so this may well have a substantial effect on other states. That a state then chooses to regulate rather than freely permit the distribution of marijuana should also be permissible. At any rate, the only constitutional remedy for such interstate effects is a federal law and federal prosecution, provided that Congress is exercising an enumerated power.
Rivkin and Price Foley write:
Conservatives' ire instead should be directed at the Obama administration's decision to suspend enforcement of the federal law prohibiting marijuana-a decision so warping the rule of law that the complaining states' reliance on Raich is justified and necessary.
This is half right. 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.