The Volokh Conspiracy

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Dangerous implications of the Nebraska-Oklahoma lawsuit against marijuana legalization in Colorado


Co-blogger Jonathan Adler and Vanderbilt law professor Robert Mikos have pointed out some of the flaws in the lawsuit filed by Nebraska and Oklahoma urging a federal court to invalidate marijuana legalization in neighboring Colorado. In the unlikely event that the plaintiff states prevail, they will also have set a very dangerous precedent—one that conservatives are likely to rue in other areas.

Nebraska and Oklahoma argue that Colorado's decision to legalize marijuana under state law, in the face of continuing federal prohibition, harms neighboring states because it facilitates the flow of marijuana across their borders and may increase crime there. Liberal states with strict gun control laws raise exactly the same complaints about the flow of guns from neighboring conservative states with relatively permissive firearms laws. If Nebraska and Oklahoma can force Colorado to criminalize marijuana under state law because the federal government has done so under federal law, then Maryland can force Virginia to ban any gun sales that are restricted under federal law. Liberals have, in fact, advocated the enactment of stronger federal gun control laws for years. The same goes for conservative states that have less restrictive labor regulations or environmental regulations than neighboring states do.

Conservatives can argue that Colorado's marijuana laws inflict greater harm on Nebraska than, say, Virginia's gun laws inflict on Maryland. The claim that the possible benefits of drug prohibition outweigh the enormous costs of imprisoning large numbers of people and bolstering organized crime by creating black markets is itself dubious. But even if it is true, the proposition that marijuana legalization is more dangerous than gun legalization is unlikely to persuade liberal federal judges, or even many moderate ones.

As Jonathan points out, the Nebraska-Oklahoma lawsuit also risks validating and further expanding expanding one of the Supreme Court's worst federalism precedents: Gonzales v. Raich. By allowing Congress to use its power to regulate interstate commerce to ban the possession of marijuana that had never crossed state lines or been sold in any market, the Supreme Court allowed federal power to expand further than ever before and created a serious obstacle to efforts to enforce meaningful limits on congressional authority. The decision was also blatantly at odds with the text and original meaning of the Commerce Clause. By claiming that Raich not only validates sweeping federal power, but also requires states to ban marijuana under state law, the Nebraska-Oklahoma suit risks making this harmful precedent even worse than it already is.

In other situations, including the Obamacare case, Nebraska and Oklahoma have fought to strengthen enforcement of constitutional limits on federal power. But if their interest in that cause is genuine rather than a case of "fair weather federalism," they should be working to limit and eventually overrule Gonzales v. Raich instead of expanding its reach.

Like most other federalism scholars, I highly doubt that Nebraska and Oklahoma will win their case. But if they do somehow prevail, the biggest losers will be advocates of constitutional limits on federal power.