Colorado's law to legalize marijuana is a "full-scale defiance" of the federal Controlled Substance Act, and the attorneys general of neighboring states, Nebraska and Oklahoma, are entitled to sue to have the law declared unconstitutional, two legal experts write in an opinion piece for
The Wall Street Journal.
"When federal power has been legitimately invoked, states may not go rogue," said David Rivkin, a constitutional litigator who served in the Justice Department and White House Counsel’s Office under Presidents Ronald Reagan and George H.W. Bush, and Elizabeth Price Foley, a professor of constitutional law at Florida International University College of Law, in the Monday article.
"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," Rivkin and Foley write.
Nebraska and Oklahoma want the Supreme Court to make a declaration on
Colorado's law, claiming that the Constitution and federal anti-drug laws do not permit "a patchwork" of state and local drug policies that conflict with federal laws.
"Normally such lawsuits wouldn’t be necessary because the federal government would enforce its superior law against rogue states," write Rivkin and Foley. "But these aren’t ordinary constitutional times, and it isn’t 'fair-weather federalism' to defend these core constitutional principles."
The federalism charge has come up, they write, as many conservatives are criticizing Nebraska and Oklahoma for using the 2005 Supreme Court decision of Gonzales v. Raich that upholds Congress' power on regulating commerce when it comes to the sale of marijuana.
But conservatives should instead be angry at the Obama administration and its decision to not enforce the federal law.
Drug sales in one state should not be tolerated, say Rivkin and Foley, because that undermines the Controlled Substances Act and Congress' wish to stop interstate trafficking.
"State laws legalizing and regulating marijuana — in Colorado, Alaska, Oregon and Washington — conflict with the CSA and cripple its effectiveness," they write.
And while states can't be required to enforce federal law, the Supreme Court has found that when the federal government fails to enforce its own laws, states "may not pursue policies that undermine federal law."
Further, Nebraska and Oklahoma have seen an "influx of high-potency marijuana" because of the Colorado markets, and have seen their own law-enforcement costs climb as a result.
The Raich case is binding precedent, say Rivkin and Foley, and the Colorado law is not about a limited medical-marijuana exemption.
Meanwhile, the Controlled Substances Act can still be amended or repealed, and Congress has included language in its recent omnibus bill that says the Justice Department can't use funds to prevent states from implementing medical marijuana laws.
"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," said the two experts.
"Alternatively, Attorney General Eric Holder could 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."