Nebraska & Oklahoma v. Colorado: Not a Strong Claim, But Not Ridiculous

Pro-marijuana forces are naturally upset about the lawsuit brought by Nebraska and Oklahoma seeking to overturn parts of Colorado's legalized marijuana system.  The best recap of what's going on is the Denver Post's. 

I don't share the anger.  The two states are facing a real (if probably overstated) problem.  They don't want marijuana, and now they're fighting not only drug cartels but a neighboring state that's not only supplying pot, but whose Colorado-licensed sellers -- unlike criminal gangs -- probably can't be prosecuted in Nebraska and Colorado.  Going to court is what people do when they don't like particular social outcomes. 

That said, I agree that the suit probably won't succeed.  But it's important to realize that the two states have not yet put forth any evidence, and have not actually made their legal argument.  They've merely filed a complaint, which at this point needs only to show that it isn't completely frivolous.

Over at Marijuana Law, Policy, and Reform, Rob Mikos opines that the suit is a loser:

    Not surprisingly, I think the suit lacks merit. As I’ve explained before, Congress can’t force states to criminalize marijuana. It follows that Congress also can’t stop states from legalizing marijuana; after all, legalization is just repeal of criminalization. It would be odd to say Congress can’t force a state to criminalize marijuana in the first instance, but it could force a state to keep a criminal prohibition on its books if it had already passed one. There are, of course, limits to this anti-commandeering principle. For example, Colorado probably couldn't open a state-run marijuana store. But nothing in the lawsuit remotely suggests that Colorado has yet exceeded those limits and done something that is preemptable.

Nobody knows more about this stuff that Professor Mikos, but I'm not sure I agree.  That's because I read the complaint differently, I think.  The main gripe isn't that Colorado has effectively decriminalized marijuana.  The claim seems to be that Colorado has enacted a system that deliberately encourages and profits by violating the federal Controlled Substances Act.

Professor Mikos relies on the anti-commandeering doctrine, the rule that says Congress can't compel states to do things.  Thus, while Congress can prohibit marijuana, it can't compel the individual states to prohibit it.  He lays that argument out, by the way, in his important article, On the Limits of Supremacy: Medical Marijuana and the States' Overlooked Power to Legalize Federal Crime.  I wholeheartedly agree that he's right on that point.  Neither Congress nor any other state can make the State of Colorado do something it doesn't want to do. 

But what's going on here isn't simple decriminalization.  It is (so Nebraska and Oklahoma would argue) active participation in the sale and distribution of marijuana that it knows will travel across state lines.   And while the anti-commandeering doctrine prohibits telling the states things that they must do, there's no constitutional bar to telling states what they can't do.

To illustrate the problem, take this hypo:  Suppose state X were to decide that increasing jobs was more important than clean air.  It passes a detailed state scheme authorizing construction of power plants in the state that expressly violate federal environmental statutes.  It sets hefty fees for these licenses and makes a tidy profit as power companies flock to the state to avoid federal regulation.  A substantial amount of the pollution, however, from those plants enter states Y and Z.  Now assume that an anti-environmentalist President and EPA issue “guidance” to state X that the feds won’t interfere with these noncompliant polluters so long as they’re legal under state law.

Note that all of the conduct involved occurs in X, and X receives all of the economic benefit, so we could say that this is simply a state issue.  But the actions harm Y and Z because of the influx of pollution.  Y and Z are trying to be good federal citizens, their voters prefer clean air, and they suffer the costs and economic hit involved in vigorously cracking down on polluters.  They can stop the polluters within their borders, but those just across the border in X are immune.  Y’s and Z’s efforts to get clean air are undercut by X’s actions.

If there were no federal clean air standards, Y and Z would probably be stuck.  But if X is directly aiding and abetting violations of the clean air standards, Y and Z presumably would sue.  That seems to me to be the case here.

Now, those opposed to environmental laws would argue that Y and Z should loosen up; just ignore the pollution, or even license polluting facilities in their own territories.  But that simply means that instead of Y and Z imposing on X, X gets to impose on Y and Z.

Thus, although I'm a fan of federalism, I can't go along with Volokh Conspiracy's Jonathan Adler in calling the two states hypocritical for trying to interfere in Colorado's internal affairs.  They're not trying to get Colorado to outlaw marijuana; they're trying to get Colorado to stop encouraging it and sending it out into interstate commerce.

Personally, I see any number of legal difficulties that lie in the path of the suit, and I hope very much that it loses.  I understand that much of the immediate response from the legalization community is designed to whip up support from the base.  I'm reminded of the pro-Obamacare people who keep explaining how every challenge to the bill is "without merit," and keep getting surprised when they lose.  If you read the Nebraska/Oklahoma brief, you'll realize it was written by very good lawyers who know what they're doing.

In my view, it's going to be a tougher fight than some of the commentary would suggest.  I would, of course, be very happy to be wrong on this point.