By DAVID B. RIVKIN JR. And ELIZABETH PRICE FOLEY
Dec. 28, 2014 6:52 p.m. ET
The attorneys general of Nebraska and Oklahoma have asked the Supreme Court to declare unconstitutional Colorado’s law legalizing marijuana. The lawsuit states that, “The Constitution and the federal anti-drug laws do not permit the development of a patchwork of state and local pro-drug policies and licensed-distribution schemes throughout the country which conflict with federal laws.”
Many conservatives have criticized Nebraska and Oklahoma for being “fair-weather federalists” because their claims hinge, in part, on Gonzales v. Raich, a 2005 Supreme Court decision, upholding the broad reach of Congress’s power to regulate commerce.
Conservatives’ ire instead should be directed at the Obama administration’s decision to suspend enforcement of the federal law prohibiting marijuana—a decision so warping the rule of law that the complaining states’ reliance on Raich is justified and necessary.
In 1970 Congress passed the Controlled Substances Act, or CSA, listing marijuana as a Schedule I drug, and thus illegal to manufacture, distribute or possess. Nonetheless, in August 2013 the Obama administration employed its now-signature response to disfavored laws, issuing a memo directing U.S. law enforcement to refrain from using “limited investigative and prosecutorial resources” to pursue marijuana-related violations of the CSA in states that chose to regulate marijuana businesses. The new law-by-memo told states they are free to ignore the federal ban.
The Controlled Substances Act is an exercise of Congress’s express power to regulate interstate commerce. The law declares that a “major portion of the traffic in controlled substances flows through interstate and foreign commerce” and that even locally grown and sold drugs have a substantial impact on interstate commerce. Drugs manufactured, distributed or consumed within a single state cannot be tolerated because they undermine Congress’s desire to stop interstate drug trafficking.
State laws legalizing and regulating marijuana—in Colorado, Alaska, Oregon and Washington—conflict with the CSA and cripple its effectiveness. States cannot be required to enforce federal law. But as the Supreme Court held in A rizona v. United States (2012), when the federal government doesn’t enforce its own laws, states still “may not pursue policies that undermine federal law.” Colorado’s decision to legalize and regulate the sale of marijuana undermines the Controlled Substances Act, giving a major boost to all segments of that business. Indeed, in an interview this month Colorado’s attorney general, John Suthers, acknowledged that his state is “becoming a major exporter of marijuana.”
Neighboring states such as Nebraska and Oklahoma have seen a significant influx of high-potency marijuana purchased in and directed toward Colorado markets, increasing those states’ law-enforcement costs. If the CSA is a valid federal statute, the U.S. Constitution’s supremacy clause (Article VI, paragraph 2) instructs that conflicting state laws cannot be allowed to stand. This is where Raich comes in.
In Raich, individuals who used marijuana pursuant to California’s “compassionate use” law asserted that the CSA was unconstitutional as it applied to them, because Congress’s power to regulate interstate commerce couldn’t reach state-sanctioned intrastate marijuana use. The Raich majority refused to create a CSA “exemption” for medicinal marijuana, reasoning that “a nationwide exemption for the vast quantity of marijuana . . . locally cultivated for personal use . . . may have a substantial impact on the interstate market for this extraordinarily popular substance.” It concluded that the CSA was a valid exercise of the congressional power to regulate interstate commerce and that “marijuana possession and cultivation ‘in accordance with state law’ cannot serve to place respondents’ activities beyond congressional reach.”
Even the pro-federalism dissent by Justice Sandra Day O’Connor —which asserted that state compassionate-use laws could peacefully coexist with the CSA—acknowledged that medical marijuana was qualitatively distinct from recreational marijuana. More specifically, Justice O’Connor believed that the relatively small population of medical marijuana users didn’t have a “substantial effect” on the interstate market for recreational marijuana—the market Congress intended to extinguish in the Controlled Substances Act.
Whatever one thinks about Raich, it is still binding precedent. Colorado’s law is not about a limited, medical-need exemption for marijuana use. It is a full-scale defiance of the CSA. There is no federalism defense to Colorado’s law, unless one believes that Congress’s power to regulate interstate commerce doesn’t include the power to regulate the buying and selling of marijuana, a commercial market that involves interstate transportation, lures sellers and consumers from other states, and now generates more than $7 million in tax revenue for Colorado every month.
The Controlled Substances Act can be amended or repealed. Congress has taken a step in this direction by providing in its recent omnibus spending bill that the Justice Department cannot use appropriated funds to prevent states from implementing “laws that authorize the use, distribution or cultivation of medicinal marijuana.”
This development may lead the Supreme Court to take another look at the CSA’s constitutionality, something that could occur in the context of the Oklahoma and Nebraska lawsuit against Colorado. Alternatively, Attorney General Eric Holdercould use his authority under the Controlled Substances Act to remove marijuana from Schedule I. But Coloradans—or the citizens of any other state—lack the power in our constitutional regime to enact a law that conflicts with the CSA.
When federal power has been legitimately invoked, states may not go rogue. When they do, sister states that can demonstrate concrete injury are entitled to obtain a court declaration that state laws in conflict with federal law are unconstitutional. Normally such lawsuits wouldn’t be necessary because the federal government would enforce its superior law against rogue states. But these aren’t ordinary constitutional times, and it isn’t “fair-weather federalism” to defend these core constitutional principles.
Mr. Rivkin, a constitutional litigator, served in the Justice Department and White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Ms. Foley is a professor of constitutional law at Florida International University College of Law.