“Did the Framers of the Constitution really intend for unelected bureaucrats to have the power to allow states to circumvent federal law?”

February 24, 2016

The question in the title of this post is drawn from an interesting line in the midst of this notable new National Review commentary authored by Doug Peterson, the attorney general of Nebraska. The piece is headlined “Colorado’s Marijuana Regime Is an Affront to Federalism and the Rule of Law,” and here are excerpts:

In 1970, the Controlled Substances Act (the CSA) was passed with overwhelming majorities in Congress. Its enactment represented, for the first time, the creation of an integrated, comprehensive national drug policy. For nearly half a century, the CSA has stood as the law of the land, marking a consistent and collective recognition that the inherently interstate problem of drug trafficking can only effectively be addressed on a national scale.

The dismantling of this national legal framework by those charged with upholding it began in October of 2009, when President Obama’s deputy attorney general issued memoranda instructing U.S. attorneys to ostensibly ignore enforcement of marijuana laws. The Justice Department’s deliberate inaction unlocked the door for state-sanctioned facilitation of the production, distribution, and retail sale of this illegal substance on a truly industrial scale.

Colorado has since incentivized the growth of a billion-dollar impairment industry that has proven efficient in producing a ubiquitous variety of marijuana products of a potency level that is globally without parallel…. Whatever may be said of the economic success of Colorado’s impairment industry, it is not a success for the rule of law. Nor has it been anything but harmful and expensive for Colorado’s neighbors, like Nebraska, who continue to interdict illegal marijuana consistent with their own laws and, lest we forget, the CSA.

Colorado’s regulatory scheme, coupled with federal inaction, effectively renders the CSA a nullity when it comes to marijuana. How can Colorado’s state-facilitated billion-dollar marijuana industry not conflict with Congress’s nationwide prohibition on marijuana when it has been shown (by federal drug-trafficking reports) that Colorado marijuana reaches a substantial majority of states? It can’t. How can Colorado’s regulations even be said to implicate only purely intra-state activities when they have almost no protections against sales to non-Colorado buyers? They don’t. Did the Framers of the Constitution really intend for unelected bureaucrats to have the power to allow states to circumvent federal law? No chance.

This is why Nebraska, joined by Oklahoma, is seeking a declaration from the United States Supreme Court that Colorado’s marijuana scheme violates the Constitution. Our lawsuit, brought as an original action given its state-versus-state nature, tests whether individual states can effectively nullify federal law. Resolution is needed in the Supreme Court, particularly since the administration — consistent with its actions in so many other areas ranging from environmental regulation to illegal immigration — has abdicated its obligations under the law.

To be sure, I am a fervent believer in the principles of federalism and recognize the Constitution’s reservation of power to the states. I also believe that passage of the CSA was an appropriate exercise of Congress’s authority under the Constitution’s interstate commerce clause. Ironically the Department of Justice also supported this same exercise of federal authority when it strenuously and successfully argued to the Supreme Court in Gonzales v. Raich in 2005 that the CSA’s prohibition on marijuana was a valid exercise of congressional power. In light of these settled principles, Colorado’s actions must yield to another provision of the Constitution: the supremacy clause….

By bureaucratic memo, this administration has allowed the piecemeal nullification of Congress’s clear intent in enacting the CSA. It is now time for the Court to state “what the law is” regarding marijuana and the mandates given by Congress in the CSA. Should the Court decline to hear our case, Big Marijuana and the states with which it cooperates will take it as a sign that federal drug laws do not matter and that the supremacy clause can be selectively applied. Such signals undermine not only the integrity of the rule of law, but also the sovereignty of states like Nebraska who recognize their obligation to refrain from deliberately obstructing Congress’s goal of protecting America and its children against the myriad societal ills posed by illicit drugs.

Perhaps unsurprisingly, the comments to this piece suggest that many readers of the National Review are not especially convinced by what Attorney General Peterson has to say. Notably, the first stated conviction for the Nation Review listed here includes the assertion that the “growth of government (the dominant social feature of this century) must be fought relentlessly.” When it comes to growth of marijuana, however, it seem Nebraska’s Attorney General supports the growth of the federal government to relentlessly fight against individuals and states that are disinclined to see marijuana in the same light as the feds.

Though this commentary reveals Peterson to be a fair-weather federalist, it does an effective job at highlighting the arguments being made by Oklahoma and Nebraska concerning why the Supreme Court needs to consider ASAP its challenge to Colorado’s marijuana reforms. Especially after Justice Scalia’s death and with a big national election now less than eight months away, I think it remains somewhat unlikely that the Justices will be eager to take up this state-on-state dispute now. But, as I have long known about the actions of the Supreme Court, you never really know what the Justices will decide to do.

Some prior related posts:

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Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms and Who decides