The Corner

Reefer Federalism: Nebraska and Oklahama vs. Colorado

Over on the homepage, Nebraska attorney general Doug Peterson slams Colorado for legalizing marijuana and refusing to enforce federal marijuana laws. He argues that Colorado’s reefer madness is an affront to federalism and the Constitution, and (along with co-plaintiff Oklahoma) is asking the Supreme Court to command Colorado to enforce federal marijuana laws – in the hopes, apparently, of stemming the terrifying scourge of 18-year-olds listening to reggae while stoned in their states. 

With deepest respect to Mr. Peterson, and speaking as a fervent believer in the federal structure of our Constitution, Nebraska’s position is absolutely incorrect in every particular. Conservatives should be united in hoping that Nebraska and Oklahoma lose this case. In fact, the prospect of Nebraska and Oklahoma winning could set the conservative cause at the Supreme Court back many decades, by reviving the core progressive tenet that states are mere servants of the federal government. 

As I explained in an article for The Atlantic last year, the Supremacy Clause imposes an obligation on state courts to enforce federal law, but definitely not on state executives or legislatures. Were it otherwise, the states would be mere field offices of the federal government. But as the late Justice Antonin Scalia wrote, in his brilliant opinion in Printz v. United States (1997), states must remain “independent and autonomous within their proper sphere of authority.” State officials cannot be “dragooned” into federal service. 

Neither does the Supremacy Clause doctrine of preemption offer any help. Of course states cannot contradict federal law in ways that undermine it. But Colorado is not undermining the federal government’s enforcement of its own law. It is merely refusing to participate in a federal scheme in which the state’s participation is entirely voluntary. That the Controlled Substance Act will be undermined by a state’s refusal to participate voluntarily is merely a result of the fact that here – as in so many other areas — Congress had made the mistake of over-regulating and over-criminalizing, and of generally sticking its nose into too many things that are none of its business, and now has to hope that the states will do its work for it. Colorado has absolutely no obligation to help the feds out when they bite off more than they can chew on their own — something they do all the time

Conservatives should hail Colorado’s refusal to voluntarily enforce a law that the federal government can’t enforce on its own  – a law which, let’s not forget, would be unconstitutional to start with, if not for the awful Supreme Court decisions of the New Deal era, chiefly Wickard v. Filburn (1942). 

Colorado has exposed a major vulnerability in the feds’ nanny-state power-structure: Even with the largest budget in the galaxy so far as we know, the federal government can’t regulate everything under the sun. That’s a good thing. It’s a vulnerability that states should exploit much more often. In the meantime, don’t be fooled: Nebraska and Oklahoma have embraced a position that is absolutely contrary to conservative constitutional principles, and if they prevail, it be a major victory for progressives’ great consolidation of government power.  

Mario Loyola — Mr. Loyola is a research associate professor and the director of the Environmental Finance and Risk Management Program at Florida International University and a senior fellow at the Competitive Enterprise Institute. From 2017 to 2019 he was the associate director for regulatory reform at the White House Council on Environmental Quality.

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