Are Nebraska and Oklahoma just fair-weather federalists?

Let me add a few observations about the lawsuit filed by Nebraska and Oklahoma against the state of Colorado to those made by Eugene Volokh below.

The underlying legal claim is that Colorado's Amendment 64, which provides for state regulation of a legal marijuana industry, is preempted by the federal Controlled Substances Act (CSA). This is a serious argument - the most serious part of the brief Nebraska and Oklahoma filed. The argument is that Colorado law, by affirmatively providing for a legal marijuana industry, is in conflict with the blanket prohibition on marijuana sale and possession imposed by the CSA. I am unpersuaded on this point - see, for instance, this paper by Robert Mikos of Vanderbilt - but it is a serious argument.

An interesting wrinkle in the preemption argument, as put forward by the complaining states, is that it expressly relies upon the rationale of Gonzales v. Raich, in which the Supreme Court upheld the application of the CSA to the intrastate possession of marijuana for medical purposes authorized by state law. Raich remains good law, but I am nonetheless surprised to see states such as Oklahoma and Nebraska embrace it so enthusiastically. Most of those who seek to constrain federal power, and expand the reach of state autonomy, see Raich as an obstacle, a decision to be distinguished and narrowed, not a precedent to be expanded.

Interestingly enough, when Raich was argued, not a single state filed a brief in support of the federal government's position, but multiple states filed briefs in opposition, including some states (such as Alabama) that were vehemently against marijuana legalization. At the time, Alabama argued that legalization of medical marijuana in California and other states posed no risk to Alabama that Alabama law enforcement could not handle. Oklahoma and Nebraska are now singing a different tune.

The substantive problem with the suit is less the preemption argument than the basis upon which Nebraska and Oklahoma are seeking to get into federal court. As Eugene notes, they are essentially arguing that Colorado's authorization of a legal marijuana use creates an interstate nuisance. The harm of which they complain is that more marijuana comes into their states because of Colorado. This is pretty weak gruel as far as nuisance claims go, and seems to be a particularly weak basis upon which to demonstrate standing.

Accept for the argument that Colorado's legalization of marijuana understate law imposes costs on Nebraska and Oklahoma that are tantamount to an interstate nuisance. Now think about what happens if the plaintiff states are successful. If Colorado's laws regulating marijuana are preempted, marijuana will remain legal in Colorado - federal law cannot force Colorado to implement federal preferences on marijuana policy - and Colorado law enforcement will still have no obligation to enforce federal law. So marijuana sale, use, and possession would become less regulated and subject to less control in Colorado. This will make it more difficult for federal officials to police interstate trafficking, and the nuisance about which Oklahoma and Nebraska are complaining would likely get worse.

Perhaps Nebraska and Oklahoma would argue that Colorado has an affirmative duty to control marijuana within its state. This would be an astounding argument for these states to make, particularly given the positions they have take against commandeering of state officials in other areas. One could perhaps argue that the anti-commandeering rule only applies to Congress, and does not prohibit courts from ordering affirmative relief, but any such argument made here still boils down to the claim that Colorado has an affirmative obligation to regulate a product because the federal government and neighboring states have chosen to make it illegal.

Indeed, given the efforts by Nebraska and Oklahoma to resist federal environmental initiatives - where similar nuisance arguments and prayers for relief in court could be made - a victory here (however unlikely) would dramatically increase federal regulatory authority. Were Nebraska and Oklahoma able to convince the Supreme Court that Colorado has an affirmative duty to control marijuana use within the state, it won't be long before New York, Connecticut and other northeastern states are in federal court arguing that Oklahoma, Nebraska, and other states have an affirmative obligation to control greenhouse gas emissions and other pollutants. Is that really what the plaintiff states are trying to accomplish? (Note that the two scenarios can't be distinguished on displacement grounds, as if the CAA displaces such claims over emissions, the CSA must displace those involving marijuana.)

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. 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.

Principled arguments for state autonomy necessarily allow for one state to make policy choices that those in other states may not like. Policy makers in Oklahoma and Nebraska may think that Colorado's (and Washington's, Oregon's, etc.) decision to legalize marijuana was a bad decision. They may even be right. The genius of our federal system is that different states have the opportunity to try different policies.

If Oklahoma and Nebraska are concerned about the potential effects of Colorado's decision to legalize marijuana, they would be better served by reforms of federal marijuana policy that would emphasize limitations on interstate trafficking and largely ignore intrastate markets. This is what the federal government did with alcohol in the wake of prohibition, and it represents a better way to respect and protect state autonomy for prohibitionist and non-prohibitionist states alike. But that's not the approach Nebraska and Oklahoma have sought to pursue here.

UPDATE: SCOTUSBlog reports on the litigation here. Robert Mikos comments here.

SECOND UPDATE: For more on the federalism issues related to state marijuana reforms, see this Federalist Society luncheon and this conference held at Case Western Reserve University School of Law. Both programs were sponsored by CWRU's Center for Business Law and Regulation.