Marijuana Legalization in Colorado: Can Oklahoma and Nebraska Get It Reversed?

The collapse of pot prohibition divides Republicans and exposes fair-weather federalists.


At the end of last month, seven Republican members of Oklahoma's legislature, including five of the most conservative, publicly criticized that state's Republican attorney general, Scott Pruitt, for trying to reverse marijuana legalization in Colorado. "Oklahoma has been a pioneer and a leader in standing up to federal usurpations of power on everything from gun control to Obamacare," they wrote in a letter to Pruitt, who last month joined Nebraska Attorney General Jon Bruning in asking the U.S. Supreme Court to stop Colorado from regulating marijuana businesses. "We believe this lawsuit against our sister state has the potential, if it were to be successful at the Supreme Court, to undermine all of those efforts to protect our own state's right to govern itself under the Tenth Amendment to the U.S. Constitution."

The letter, spearheaded by state Rep. Mike Ritze (R-Broken Arrow), was a striking illustration of the split that the ongoing collapse of marijuana prohibition has created among Republicans, pitting their anti-pot prejudices against their avowed devotion to federalism. For Ritze, the choice was clear. "This is not about marijuana at its core," he said in a press release. "It is about the U.S. Constitution, the Tenth Amendment, and the right of states to govern themselves as they see fit. If the Supreme Court can force Colorado to criminalize a substance or activity and commandeer state resources to enforce extra-constitutional federal statutes and UN agreements, then it can essentially do anything, and states become mere administrative units for Washington, D.C….If the people of Colorado want to end prohibition of marijuana, while I may personally disagree with the decision, constitutionally speaking, they are entitled to do so."

Pruitt and Bruning, by contrast, elevated their antipathy to marijuana above their fealty to the Constitution. "It is curious—and disappointing—to see a suit like this filed by two states that have taken the lead in defending state prerogatives in other policy areas," writes Case Western University law professor Jonathan Adler at The Volokh Conspiracy. "It is as if their arguments about federalism and state autonomy were not arguments of principle but rather an opportunistic effort to challenge federal policies they don't like on other grounds.  It makes Oklahoma and Nebraska look like fair-weather federalists."

In their lawsuit, Pruitt and Bruning complain that Colorado marijuana ends up in neighboring Oklahoma and Nebraska, causing "the diversion of limited manpower and resources to arrest and process suspected and convicted felons involved in the increased illegal marijuana trafficking or transportation." Some might argue that Oklahoma and Nebraska's determination to stop people from getting high is the real cause of this strain on their law enforcement resources. But according to Pruitt and Bruning, "Colorado's actions amount to what would be casus belli if the states were fully sovereign nations." That is like saying Iran would be justified in waging war on Iraq or Turkey because the governments of those neighboring countries refuse to ban alcoholic beverages.

Oklahoma and Nebraska argue that the Supreme Court should overturn Amendment 64, the legalization measure that Colorado voters approved in 2012, because it "directly conflicts with federal law," which the Constitution makes "the supreme law of the land." Specifically, they maintain that Amendment 64 and the regulatory system it created are preempted by the Controlled Substances Act (CSA), which bans marijuana. Yet as the lawsuit concedes, the CSA itself expressly limits preemption to situations where there is "a positive conflict" between state and federal law "so that the two cannot consistently stand together."

In a 2012 Cato Institute paper, Vanderbilt University law professor Robert Mikos explains that "a positive conflict would seem to arise anytime a state engages in, or requires others to engage in, conduct or inaction that violates the CSA." If state officials grew medical marijuana or distributed it to patients, for example, they would be violating the CSA, and the law establishing that program would be preempted. But specifying the criteria for exemption from state penalties, which is essentially what the regulations mandated by Amendment 64 do, does not require anyone to violate the CSA. Mikos concludes that Congress "has left [states] free to regulate marijuana, so long as their regulations do not positively conflict with the CSA."

Oklahoma and Nebraska are asking the Supreme Court to overturn the provisions of Amendment 64 that authorize the state to regulate marijuana businesses, which would leave in place the provisions eliminating state penalties for possession, sharing, and home cultivation. The two states argue that Colorado's regulations "embed state and local government actors with private actors in a state-sanctioned and state-supervised industry which is intended to, and does, cultivate, package, and distribute marijuana for commercial and private possession and use in violation of the CSA." Yet with the possible exception of tax collection, which might be construed as money laundering, none of the actions that Amendment 64 requires state and local officials to perform violates federal law. They are instead focused on making sure that producers and retailers meet the conditions for avoiding prosecution under state law, an area where the Constitution leaves Colorado a lot of leeway.

Under our federal system, states have no obligation to punish every activity that Congress decides to treat as a crime. Colorado therefore could repeal all marijuana-related penalties, leaving people free to grow, possess, buy, and sell marijuana without restriction and without fear of prosecution under state law. Yet Oklahoma and Nebraska argue that a lesser step, repealing penalties with conditions, somehow violates the Constitution.

The states' lawsuit leans heavily on Gonzales v. Raich, the 2005 case in which the Supreme Court said the Commerce Clause gives the federal government the authority to prosecute people for growing and possessing marijuana, even if it is for their own medical use and they are permitted to do so under state law. According to Raich, the federal government's power to "regulate commerce…among the several states" encompasses the tiniest speck of marijuana in a cancer patient's bedstand, even if she grew it at home and it never left her property, let alone the state. As Justice Clarence Thomas noted in his dissent, "If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers."

Even so, Raich cannot do the work that Pruitt and Bruning want it to do, as Randy Barnett, the Georgetown law professor who litigated the case, points out. To say that the federal government can enforce its own ban on marijuana even in states that have legalized it for medical or recreational use is not the same as saying the federal government can compel states to assist that effort. In fact, as Ritze and his colleagues note in their letter to Pruitt, the Supreme Court made it clear in the 1997 case Printz v. United States that Congress may not "commandeer" state and local officials to enforce its laws. The issue in Printz was a federal law requiring police chiefs to run background checks on gun buyers, a minor mandate compared to conscripting state officials in a war on marijuana they have rejected.

In light of Raich, Pruitt and Bruning claim, federal law clearly preempts Amendment 64, since "there is no doubt that Congress intended the CSA to serve the purpose of making all manufacture, sale, and possession of regulated drugs illegal, except to the extent explicitly authorized by the CSA." By legalizing marijuana, they argue, Colorado frustrates that intent. But regardless of what Congress may have wanted to do, it does not have the constitutional authority to make Colorado ban marijuana, and Raich does not change that fact.

Pruitt and Bruning's reliance on Raich, which was the Obama administration's chief crutch in defending the requirement that every American obtain government-approved medical coverage, dismayed many conservatives who admired their resistance to the Patient Protection and Affordable Care Act. Raich epitomizes the Court's willingness to find justification for nearly any congressional whim in the Commerce Clause, a tendency conservatives usually bemoan.

That complaint is reflected in the letter that Ritze and his colleagues sent to Pruitt. They not only defend the anti-commandeering doctrine enunciated in Printz but join Justice Thomas in questioning the super-elastic Commerce Clause described in Raich.

The legislators argue that the power to "regulate commerce…among the several states," properly understood, does not apply to purely intrastate activity. "For the same reason that alcohol prohibition required a constitutional amendment," they say, "we believe a strong argument can be made that criminalizing and prosecuting drug crimes must be decided at the state level, absent a properly ratified constitutional amendment. If the commerce clause could be interpreted so broadly, there is virtually nothing the federal government could not regulate or control under the guise of 'commerce.'" That is what consistent constitutionalists, as opposed to faux federalists like Pruitt and Bruning, sound like.

This article originally appeared at

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  1. Hairpiece or bad dye job?

    1. Why not both?

      1. It’s a hair system.

        1. Are the half-eyebrows paht of ze dahnce, I mean, part of the hair system?

        2. And a flammable looking one at that.

  2. To say that the federal government can enforce its own ban on marijuana even in states that have legalized it for medical or recreational use is not the same as saying the federal government can compel states to assist that effort.

    There’s case law on point. It’s been held that even without the protections of the Tenth Amendment, Congress may not force the D.C. Council to enact laws that, concededly, Congress has the power to enact on its own.

  3. What is this constitution of which you speak?

  4. To the conservatives out there that will read this here me out. Y want state’s right more then anything. you want to stop the pointless spending that goes on in government. You want fair law and taxes for everyone. You want new ways to make new tax revenue. You want police and law enforcement to catch rapist, thieves, and murders more often. You want the unemployment rate to go down and job creation to go up. You want patients to get the best medicine and health for all. You want cops to stop killing people for not violent crimes. But then you want the one biggest thing that stops all of that from happening. A that is the pointless, wasteful, costly, FAILED prohibition against marijuana. Stop the foolishness and legalize marijuana.

    1. Be honest; it doen’t help that most of the vocal proponents of legalization are visibly the Conservatives’ social enemies, AND spout pernicious “pot/hemp can solve all our problems” bullshit.

      1. Well it cures cancer. Look up:

        Cannabis Cancer NIH

    2. If you’re going to put boilerplate out there, suggest you throw this into a text file, fix the misspelling and grammar errors, and break it into paragraphs for readability.

      Then you can paste it into comment threads to your heart’s content, and perhaps be marginally more effective.

      MFM Delenda Est!

    3. “You want police and law enforcement to catch rapists, thieves, and murderers and hippies more often.”

      1. Hey us hippies are now in our 60’s. stupid twits.

    4. Here here. I totally agree with this.

  5. “It Is as if their arguments about federalism and state autonomy were not arguments of principle but rather an opportunistic effort”

    Gee, ya think?

    Why all this space about the 95% of Republican conservatives who want the government to continue to kick down people’s doors because Johnny has a pot plant in his closet? The only thing that matters to me as a libertarian is tax rates on rich people, Climategate, Benghaaaazi, and gunz. Please, Jacob, enough with these sideshow issues.

    1. 95%…are you out of your fucking mind?

      Also the warmers have not predicted one thing correctly, not one. Extreme weather (e.g. hurricanes), polar amplification, tropospheric hot spot, CO2 doubling sensitivity, the current pause, ocean heat content/acidity…they have been wrong on all of those areas.

      Climategate did indeed expose the “team’s” ability and desire to skew results, suppress any other POV. That much is trivially true. You are full of shit

    2. Can you EVER add to the conversation/debate or do you have to do this whole team thing in every post you make?

      Libertarians are not right wingers. Most libertarians just think that left wingers are a bigger threat to our freedoms.

      Please grow up.

  6. Mike Ritze seems to be an enlightened legislator.

    This is a bootleggers and Baptists kinda thing. Cops want to maintain the funding/jobs that WoD provides, the other side wants to make money on the black market.

  7. my buddy’s sister-in-law makes $67 an hour on the internet . She has been without a job for 6 months but last month her paycheck was $12455 just working on the internet for a few hours. website link……….

    1. Your buddy’s sister-in-law has sex with donkeys on camera for money.

  8. “If the people of Colorado want to end prohibition of marijuana, while I may personally disagree with the decision, constitutionally speaking, they are entitled to do so.”


    prohibition has been a violation of the 1st and 4th amendments since they were established, no matter if it was for alcohol or drugs.

    freedom of association isnt exclusive for interpersonal relationships with other people, it’s also for association with “products” for lack of a better word.

    the mob has no right telling the minority that they cannot associate w/ someone/something they dont like, period.

    srsly, how fucking hard is this? it’s like you assholes w/ degrees never learned how to comprehend what you were reading.


    1. to clarify, im stating that the act of the people “allowing or disallowing something” is where my beef is. the people cannot ban or lift a ban, especially if the original ban was illegal.

      sorry for the confusion.


  9. “their anti-pothippie prejudices”
    (simplified expression)

  10. My best friend’s mother-in-law makes $85 /hour on the internet . She has been out of work for 5 months but last month her pay was $16453 just working on the internet for a few hours.
    Visit this website ?????

  11. The one thing about the “War on Drugs” that has been a “success” is its imbedding of this “Irrational Fear of Marijuana” so deeply into the consciousness of so many people.

  12. my neighbor’s step-aunt makes $80 an hour on the internet . She has been laid off for five months but last month her payment was $12901 just working on the internet for a few hours.
    website here……..

  13. my roomate’s half-sister makes $69 hourly on the laptop . She has been without a job for 10 months but last month her check was $15722 just working on the laptop for a few hours. why not look here………..

  14. Yesterday I picked up a brand new Lotus Esprit after making $6059 this ? 4 weeks past an would you believe $10 thousand this past-month; this is actually the most-comfortable work I’ve had . I actually started 10-months ago and pretty much immediately got minimum $80 per-hr . Get More Info @

    ……….. http://WWW.WORK4HOUR.COM

  15. Do any legal eagles know if, were A-64 to be overturned, would Colorado not have a state-level recreational law at all, or would it revert back to the previous statutes?

  16. Nebraska and Oklahoma are foolish. They should instead legalize Pot usage for at least medical use. That way they can tax it and become part of the cure of cancer, and other illnesses. Instead they would rather put people in Jail, spend Tax dollars feeding them, taking care of them medically, etc. There is NO true proof that Pot is harmful to any one. Booze is far more deadly and dangerous than pot ever was or will be yet its legal, why? I am not a pot smoker, but I am an ex-cop who feels this law needs to change. Legalize it, tax it, and reap the benefits of it health wise.

  17. I’ve heard that the police forces favor prohibition because it gives them one more reason to question or arrest suspected criminals. So the flow of weed into your state would actually make it easier to catch these ‘criminals’
    …which makes this statement: “the diversion of limited manpower and resources to arrest and process suspected and convicted felons involved in the increased illegal marijuana trafficking or transportation”… BULL

  18. Marijuana Legalization in some states can reveal many questions

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