State versus State on marjiuana reforms

As Doug blogged, the states of Nebraska and Oklahoma just filed a suit in the United States Supreme Court (under its original jurisdiction) against Colorado. In a nutshell, they are seeking a declaration that Colorado’s Amendment 64 is preempted by federal law.

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.

To be sure, I sympathize somewhat with the plight of Nebraska and Oklahoma. They suspect that marijuana produced by private Colorado residents is finding its way into their states, and they want Colorado to do more to stop the flow. But under current constitutional doctrine, they cannot simply force Colorado join their fight (and neither can Congress).