Marijuana

Nosy Neighbors Tell Colorado to Stop Regulating Pot

Oklahoma and Nebraska say legal marijuana is like state-authorized pollution.

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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.

This article originally appeared at Forbes.com.

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  1. Just waiting for the people’s republic of cook county to use this argument against the state of Indiana with regards to guns.

    1. and cigarettes, gasoline, alcohol and fireworks

      1. the whole idea of federalism was designed in a time before cars, airplanes, even bicycles (im making that one up probably not) so of course we cant expect it to be able to deal with how small the world, much less the country, is now.

        1. Federalism was NOT designed in a time before barges, sailing ships, fast horses or horse drawn wagons. The steam engine and the bicycle came but a very brief time following “federalism.” Commerce that occurred more slowly, at the pace of earlier means of conveyance, was still interstate only when it crossed State lines, much as the drifting cloud of a smoke signal crosses State lines more slowly — but no less assuredly — than do the dots and dashes of Morse Code in a telegraph wire.

          The regulation of just about everything, under the interstate commerce clause has simply been a power grab by a central government wishing to extend its influence into every realm.

          1. “…and lo, the Top Men didst lay with their tired whore, the commerce clause, and begat with her all manner of regulation, and ‘Department of’s, and central authority. And they did muster their soldiers, and send them to every state extracting tribute…”

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  3. Dear Nebraska and Oklahoma:

    Go Fuck youselves.

    1. *yourselves.*

      1. I believe dropping the “r” is correct in OKKKlahoma.

    2. I do actually believe that was Colorado’s response to the lawsuit.

  4. Considering Kansas’s extreme hostility to the weed, I’m surprised they didn’t join the petition…

    I also didn’t realize Colorado bordered Oklahoma before this lawsuit was initiated.

    1. Don’t worry, Kansas just likes to make a more personal attack on Colorado marijuana users:

      Kansas holds children of Colorado veteran who uses medical marijuana
      http://www.denverpost.com/news…..es-medical

    2. Kansas and Oklahoma voted Republican. In fact, they voted the God’s Own Prohibitionist line even when George Holy War Bush was hammering his desk and screaming for the death sentence for marijuana kingpins (recorded in his official papers) on multiple occasions. Kansas’ economic growth looks like Dorothys and Totos must be leaving as fast as tornados can carry them outside its borders.

  5. The border states are doing everything they can to get a cut of the weed money, make no mistake. I don’t live in that region, but through my job I know people there…anyways, the border states send their police, state patrol, county mounties, etc. to nail as many folks coming out of Colorado as possible. I believe the racket is to fine the individuals (take their money) and then try to stick Colorado with the bill for the incarceration and such. Obviously these individuals see things first hand and tell the story better than I can, but for these border states to feign indignance is laughable.

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  7. Well, a couple more states and businesses that will get none of my business.
    Not that it’s any any great loss them, but it’s just as easy to fly over these states as to drive through them.

    Instead of gaining a windfall from Colorado tourists driving through their states, they target them. In 5 years, weed will likely be legal in most places, but many will still recall these actions, and how these guys lost their minds over something safer than skiing.

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  9. I am all for the lawsuit winning…..

    Why? because it is a Federal Law and States are not supposed to be able to opt out of a Federal Law…

    All these States are doing is to ask the Federal Government to enforce it’s own laws.

    We are either a nation of laws or not.

    Enforce the laws on the books or change them.

    For dope and all the other recreational drugs, I say legalize them all…

    1. DA DrUg LAws is Dog WahISTle RacisUM!

    2. But the federal government has no constitutional mandate for these laws in the first place. If you are for the rule of law you should be 4 ending the federal laws uniformly, not for extending their unconstitutional power uniformly.

      1. they do, however, have a mandate to not try and tell everyone what to do. prohibition I took a whole amendment, but i guess that opened up the possibility of govt being in charge of our body chemistry. they took that idea and ran with it

    3. “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.”

      Here’s the deal – the Supremacy Clause only counts when the Feds are acting lawfully.
      Marijuana Prohibition is unlawful, therefore the Supremacy Clause is void. The States can “op-out” any time they please.

  10. The federal government should probably legalize recreational type drugs and use 1/2 the difference from the drug war in treatment and counseling.

    If they played their cards right the could price illegal drugs out of the market while raising revenue. They could also treat stuff like weed like home brews. You can have some plants for self use but if you start selling without a license you face fines and penalties.

    In short, decriminalize the majority of drugs, and use good business practices to govern the market and not be a tax burden.

    1. On my phone and I have fat fingers. Don’t mind me losing the fight to autocorrect.

    2. “if you start selling without a license you face fines and penalties”

      Sorry, I must have taken a wrong turn somewhere, I thought this was a libertarian site

      1. If they played their cards right the could price illegal drugs out of the market

        Yes, this one’s lost alright.

    3. For this to happen you have to vote libertarian. Change never comes out of incumbent platforms. The GOP never had prohibition in its platform before the Herbert Hoover campaign, and to this day they are trying to get it back.

  11. what we’re starting to see are the wonders of federalism, where freedom can route around control.

    Yes it is extremely inconvenient for the control freaks when their neighbors are free. It just drives them in insane.

    1. A U.S. narc crossed the border and shot a Canadian citizen in the 1920s. Washington feds protected their killer from extradition. The Coast Guard sank the Canadian schooner I’m Alone in the center of the Gulf of Mexico in 1929. That murder was not so easily ignored. Oklahoma ought to send its State Militia in the way Hitler did Poland, and NORAD reply with nuclear countermeasures. That would light up their crosses. The whole point of building nuclear weapons at Los Alamos was to blow up Christian National Socialist fanaticism. The only reason These States didn’t is because Germany surrendered in May, before the bombs were ready.

  12. “‘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.'”

    One can hope.

    1. “One can ALWAYS hope, yeronner…”

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  14. A1 S8 C3
    Regulate, i.e. to make regular, aid quality and flow, to guide consistent function, to keep even (fair).
    This is counter to today’s association with the words: Inhibit, permission, prohibit, strangle, subject, destroy.
    The concept of bureaucratic-destroyer-thugs was not in the least way associated with the word “regulate” in 1787, though they WERE familiar with plenty of other state-destroyer-thugs.
    A1 S8 C1
    ~ Congress may screw with foreign trade via taxation, as they will, but cannot use this to screw any states over others.
    A1 S9 C6
    ~ Congress may not screw some states over others in any Regulation of Commerce…

    A1 S8 C1
    “The Congress shall have Power To … provide for the common Defence and general Welfare of the United States;…”
    Not, “General Welfare” or “general welfare”. Not, “… of the people of the United States;…” but, “of the United States”.

    “A Dictionary of the English Language”, Samuel Johnson, L.L.D., 1786:
    WELFARE: Happiness; success; prosperity.
    GENERAL: Not special; not particular. Not directed to any single object. Having relation to all. Extensive but not universal. Common; usual. — The noun is: “The whole; the totality; the main, without insisting on particulars.”

    1. That spinning thing on old steam engines, that regulated the pressure… James Watt named it a “governor.”

      1. Diesel trucks also have governors on their engines.

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  17. I can sympathise with the Reichfuehrer of Oklahoma. It must’ve been really irritating to Soviet Socialists and the Democratic People’s Republic of Germany alike to have scofflaws fleeing into West Berlin. The government solution was to build a Wall overseen by Todes-schutzen sniper guards ordered to dispatch families fleeing the rule of law into Western anarchism. Perhaps Oklahoma could institute something similar as a public works program for okies thrown out of work by the latest asset-forfeiture depression.

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  20. I would like to object to the often-used phrase, “Federal law trumps state law”. As per the document, the Constitution is superior to any state law or constitution,and as it further states, laws in accordance with the Constitution alone are supreme. We need to remove the idea that federal = constitutional.

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