Nebraska and Oklahoma are misreading Raich

I want to second Jonathan's take on the lawsuit brought by Oklahoma and Nebraska to enjoin the operation of Colorado's marijuana regulations. Much as I respect Oklahoma's Attorney General Scott Pruitt, I think this suit lacks merit. Among other vices, it seriously misreads the Supreme Court's decision in Gonzales v. Raich, which I litigated on behalf of Angel Raich and Diane Monson from the filing of the complaint to the oral argument in the Supreme Court.

The Court in Raich ruled that Congress had the power to criminalize the noncommercial and wholly intrastate cultivation, possession and transfer of marijuana notwithstanding that it was legal to cultivate, possess and transfer under California state law. The majority did so, in part, because it deemed such possession to be "economic activity" based on a 1966 Webster's dictionary definition of "economic" that included the production of goods. In this way, it found that the Controlled Substances Act (CSA)—as applied to my clients' activities—was consistent with the Supreme Court's decisions in U.S. v. Lopez and U.S. v. Morrison.

In Lopez and Morrison, the Court had held that the power of Congress to reach wholly intrastate activity, because that activity had a substantial effect on interstate commerce, was limited to the regulation of intrastate economic activity. In Raich, the majority also rested its ruling on the fact that this regulation was an essential part of a broader regulation of interstate commerce. Indeed, Justice Scalia based his concurring opinion in Raich solely on the ground that Congress can reach even noneconomic activity when Congress deemed it essential to a broader scheme to regulate interstate commerce.

But this was all that the Court ruled in Raich. In no way did it say or even imply that Congress had the power to compel state legislatures to exercise their police power to criminalize the possession of marijuana, or to maintain their previous legislation criminalizing such behavior. It certainly never hinted in its ruling that a congressional power to prohibit intrastate activity somehow required states to criminalize such behavior or "preempted" states from ceasing to prohibit it.

Such a "preemption" theory is in direct conflict with the Supreme Court's holdings in New York v. United States and Printz v. United States that Congress may not use its commerce or other powers to "commandeer" the sovereign power of state legislatures to enact laws, or to commandeer state executive branch officials to enforce federal law. Indeed, Congress cannot even mandate that states enact speed limits on federally-funded interstate highways, but is confined to using its spending power to bribe the states to do so by threatening to withhold a portion of federal funding—provided that such conditions on federal spending does not coerce the states. That Congress may not use even its spending power to coerce or commandeer states was also expressly affirmed in NFIB v. Sebelius.

Now Oklahoma and Nebraska also offer the only somewhat more plausible claim that the Colorado's marijuana regulatory scheme amounts to actively "aiding and abetting" the violation of the CSA. For this reason, they claim that state regulations facilitating marijuana transactions that are illegal under federal law are preempted by Congress's flat prohibition on such activity. But that is not the only, or in my view the best, way to look at what is happening here.

If I am right that Congress has no power to compel states to prohibit the cultivation, possession and transfer of marijuana, then, in the absence of such state prohibition, all such activities are completely legal under state law, notwithstanding that they are illegal under federal law. Therefore, what Colorado's regulatory scheme is doing here is limiting or restricting the cultivation, possession and transfer of marijuana to those activities that comport with its regulations. As such, these regulations are more consistent with the federal ban than the complete lack of any regulation would be.

In short, under the Colorado regulatory scheme, some marijuana transactions remain illegal: the transactions that do not conform to its regulations. So if states cannot be compelled to prohibit entirely these activities, they cannot be "preempted" from partially prohibiting some subset of these activities while permitting others.

In the end, I am afraid that I see no other way to interpret Nebraska and Oklahoma's lawsuits than as an example of "fair weather federalism." Indeed, their suit provides the Supreme Court with a marvelous opportunity to reinforce its federalism jurisprudence and make clear the limits of Raich.