Pubdate: Mon, 12 Jan 2015
Source: Wall Street Journal (US)
Copyright: 2015 Roger Pilon
Author: Roger Pilon, George W. Liebmann


How exactly is Colorado undermining federal law? Nothing requires a
state to make marijuana illegal.

David B. Rivkin and Elizabeth Price Foley have risen to the defense of
the attorneys general of Nebraska and Oklahoma, who complain about
spillover enforcement costs from Colorado's law legalizing marijuana
and hence are asking the Supreme Court to declare that law
unconstitutional ("oeFederal Antidrug Law Goes Up in Smoke,"  op-ed,
Dec. 29). Along the way they respond to conservative charges of
"oefair-weather federalism"  by pointing to President Obama's
failure to enforce federal drug law in Colorado as the real problem.
Yet the gravamen of their legal argument is that, under the
Constitution's Supremacy Clause, federal law trumps conflicting
state law, so even when the president won't enforce that law, states
"oemay not pursue policies that undermine federal law,"  as policies
in Colorado and three other states allegedly now do.

Do they? How exactly is Colorado undermining federal law? Mr. Rivkin
and Ms. Foley cite Colorado's attorney general as saying that "oehis
state is "'becoming a major exporter of marijuana.'"  He was
doubtless speaking loosely there. After all, the state isn't
exporting marijuana. In essence, what the state has done is legalize
the sale and use of marijuana""as if it had never made it illegal to
begin with. Nothing requires a state to make marijuana illegal. Nor is
the state doing anything to prohibit federal enforcement of federal
prohibitions. It's doubtful, therefore, that there is any conflict
here for the Supreme Court to notice.

Roger Pilon

Cato Institute


Maryland, under Gov. Albert Ritchie, steadfastly refused to prohibit
alcohol sales throughout Prohibition, and Al Smith's New York
repealed its prohibition laws in 1926 notwithstanding the reference in
the 18th Amendment to concurrent enforcement.

The fact that Colorado burdens marijuana sales through regulation and
taxation instead of simply repealing its laws scarcely creates a
greater conflict with federal policy, let alone one about which other
states can complain.

The Controlled Substances Act does not permanently "oelist marijuana
as a Schedule I drug, and thus illegal."  The Schedule is required to
be updated annually and in its present form is the work of President
Obama's administrators, not of Congress. Rationally, marijuana
should be classified like Valium; its users would then receive the
cautionary advice of doctors, standardization and quality control, and
liberation from the underworld.

In his lectures on the Supreme Court published in 1955, Supreme Court
Justice Robert H. Jackson observed: "oeI cannot say that our country
could have no central police without becoming totalitarian, but I can
say with great conviction that it cannot become totalitarian without a
centralized national police. . . . All that is necessary is to have a
centralized national police competent to investigate all manner of
offenses and then, in the parlance of the street, it will have enough
on enough people, even if it does not elect to prosecute them, so that
it will find no opposition to its policies. Even those who are
supposed to supervise it are likely to fear it. I believe that the
safeguard of our liberty lies in limiting any policing or
investigative organization, first of all to a small number of strictly
federal offenses and secondly to nonpolitical ones."

George W. Liebmann

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