Pubdate: Mon, 29 Dec 2014
Source: Wall Street Journal (US)
Copyright: 2014 Dow Jones & Company, Inc.
Contact:  http://www.wsj.com/
Details: http://www.mapinc.org/media/487
Author: David B. Rivkin Jr. And Elizabeth Price Foley

FEDERAL ANTI-DRUG LAW GOES UP IN SMOKE

Irate about harmful spillover from Colorado's marijuana legalization, 
two neighboring states sue to overturn it. The attorneys general of 
Nebraska and Oklahoma have asked the Supreme Court to declare 
unconstitutional Colorado's law legalizing marijuana. The lawsuit states 
that, "The Constitution and the federal anti-drug laws do
not permit the development of a patchwork of state and local
pro-drug policies and licensed-distribution schemes throughout the
country which conflict with federal laws."

Many conservatives have criticized Nebraska and Oklahoma for being
"fair-weather federalists" because their claims hinge, in part, on
Gonzales v. Raich, a 2005 Supreme Court decision, upholding the broad
reach of Congress's power to regulate commerce.

Conservativesa'? ire instead should be directed at the Obama
administration's decision to suspend enforcement of the federal law
prohibiting marijuana - a decision so warping the rule of law that the
complaining states' reliance on Raich is justified and necessary.

In 1970 Congress passed the Controlled Substances Act, or CSA, listing
marijuana as a Schedule I drug, and thus illegal to manufacture,
distribute or possess. Nonetheless, in August 2013 the Obama
administration employed its now-signature response to disfavored laws,
issuing a memo directing U.S. law enforcement to refrain from using
"limited investigative and prosecutorial resources" to pursue
marijuana-related violations of the CSA in states that chose to
regulate marijuana businesses. The new law-by-memo told states they
are free to ignore the federal ban.

The Controlled Substances Act is an exercise of Congress's express
power to regulate interstate commerce. The law declares that a
"major portion of the traffic in controlled substances flows through
interstate and foreign commerce" and that even locally grown and
sold drugs have a substantial impact on interstate commerce. Drugs
manufactured, distributed or consumed within a single state cannot be
tolerated because they undermine Congress's desire to stop
interstate drug trafficking.

State laws legalizing and regulating marijuana - in Colorado, Alaska,
Oregon and Washington - conflict with the CSA and cripple its
effectiveness. States cannot be required to enforce federal law. But
as the Supreme Court held in Arizona v. United States (2012), when
the federal government doesn't enforce its own laws, states still
"may not pursue policies that undermine federal law." Colorado's
decision to legalize and regulate the sale of marijuana undermines the
Controlled Substances Act, giving a major boost to all segments of
that business. Indeed, in an interview this month Colorado's
attorney general, John Suthers, acknowledged that his state is
"becoming a major exporter of marijuana."

Neighboring states such as Nebraska and Oklahoma have seen a
significant influx of high-potency marijuana purchased in and directed
toward Colorado markets, increasing those states' law-enforcement
costs. If the CSA is a valid federal statute, the U.S.
Constitution's supremacy clause (Article VI, paragraph 2) instructs
that conflicting state laws cannot be allowed to stand. This is where
Raich comes in.

In Raich, individuals who used marijuana pursuant to California's
"compassionate use" law asserted that the CSA was unconstitutional
as it applied to them, because Congress's power to regulate
interstate commerce couldn't reach state-sanctioned intrastate
marijuana use. The Raich majority refused to create a CSA
"exemption" for medicinal marijuana, reasoning that "a
nationwide exemption for the vast quantity of marijuana ... locally
cultivated for personal use ... may have a substantial impact on the
interstate market for this extraordinarily popular substance." It
concluded that the CSA was a valid exercise of the congressional power
to regulate interstate commerce and that amarijuana possession and
cultivation "in accordance with state law cannot serve to place
respondent'a activities beyond congressional reach."

Even the pro-federalism dissent by Justice Sandra Day O'Connor
- - which asserted that state compassionate-use laws could peacefully
coexist with the CSA - acknowledged that medical marijuana was
qualitatively distinct from recreational marijuana. More specifically,
Justice O'Connor believed that the relatively small population of
medical marijuana users didn't have a "substantial effect" on
the interstate market for recreational marijuana - the market Congress
intended to extinguish in the Controlled Substances Act.

Whatever one thinks about Raich, it is still binding precedent.
Colorado's law is not about a limited, medical-need exemption for
marijuana use. It is a full-scale defiance of the CSA. There is no
federalism defense to Colorado's law, unless one believes that
Congress's power to regulate interstate commerce doesn't include
the power to regulate the buying and selling of marijuana, a
commercial market that involves interstate transportation, lures
sellers and consumers from other states, and now generates more than
$7 million in tax revenue for Colorado every month.

The Controlled Substances Act can be amended or repealed. Congress has
taken a step in this direction by providing in its recent omnibus
spending bill that the Justice Department cannot use appropriated
funds to prevent states from implementing "laws that authorize the
use, distribution or cultivation of medicinal marijuana."

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.
Alternatively, Attorney General Eric Holdercould 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.

When federal power has been legitimately invoked, states may not go
rogue. 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. Normally such lawsuits
wouldn't be necessary because the federal government would enforce
its superior law against rogue states. But these aren't ordinary
constitutional times, and it isn't "fair-weather federalism" to
defend these core constitutional principles.

Mr. Rivkin, a constitutional litigator, served in the Justice
Department and White House Counsel's Office in the Reagan and George
H.W. Bush administrations. Ms. Foley is a professor of constitutional
law at Florida International University College of Law.
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