JURIST Guest Columnist W. David Ball of Santa Clara Law, discusses the legal framework behind the Nebraska and Oklahoma law suit against Colorado to invalidate Colorado’s marijuana law…

In December 2014, Oklahoma and Nebraska took the unusual step of filing a complaint [PDF] in the US Supreme Court asking for a declaratory judgment that Amendment 64, which legalized adult use of marijuana, was unconstitutional and unenforceable because it is preempted by the Controlled Substances Act (CSA). States very rarely sue each other, but when they do, the issues usually involve things like “the location of interstate boundaries and the allocation of interstate waters.” (Just this past February, the US Supreme Court issued an opinion in an interstate water dispute, Kansas v. Nebraska et. al. [PDF]). There are many interesting questions raised by the Oklahoma and Nebraska suit—such as whether Oklahoma and Nebraska have standing—that I will not cover in this article. I will focus instead on whether Colorado’s marijuana regulations are preempted by the CSA—or alternatively whether the relief sought by Oklahoma and Nebraska (to enjoin all application and implementation of its marijuana regulations) would violate the anti-commandeering principle. I will be using the framework laid out by Professor Robert Mikos in his article “Preemption Under the Controlled Substances Act” as modified slightly by my student Reed Wagner. (Reed is one of the many students doing great work on the class blog for my Drug Policy Practicum class).

Because federal law is the supreme law of the land, any time federal and state laws contradict, federal laws preempt state ones. There are three basic types of preemption: field, direct and obstacle. Congress can make these findings expressly in the language of a statute, for example explicitly declaring itself to have occupied the field. This would prohibit any state legislative action and make the federal government the sole source of statutory authority. The CSA declined express preemption in § 903, stating “No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates”. (Absent an express pronouncement, Congress can regulate so extensively that it will be deemed to have occupied the field, again making it the sole source of statutory authority.)

Direct preemption involves a command to do something that would be inconsistent with federal law. Mikos suggests a clarification of this doctrine: that direct preemption be used to describe any state law that requires someone to violate federal law. Because pot smoking, growing and distribution is not mandatory under any extant state law, under the Mikos framework, direct preemption is not an issue. That leaves the final category, obstacle preemption. Obstacle preemption occurs when a state does something that conflicts not with the letter of the law, but with Congressional objectives. It is hard to determine Congressional objectives, of course, since they are frequently subject to interpretation, but we might try to discern what the policy goals of the CSA were and whether the Colorado regulations advance or hinder these goals. This is where the action is in the current suit.

Hand in hand with preemption is the prohibition against the federal government commandeering the states, based in federalist principles and expressed in the 1997 opinion Printz v. United States. If the federal government wants to enforce the CSA, it has to do so itself. It cannot make the states enforce it, nor can it force the states make marijuana illegal.

As Reed Wagner points out though, moving away from prohibition can take a multitude of forms, each of which has different implications for preemption. He identifies three different kinds of regulation: total decriminalization, state participation and state regulation. At one end of the spectrum is total decriminalization, the simplest form of which would be to remove all references to marijuana and/or cannabis from the state penal code. This is arguably the policy Washington, DC is left with after Congressional interference and what is being proposed in Texas. A total deregulation regime would have no regulations, no market, no state legislation at all. The extent of state policy would be simply to remove statutory language concerning marijuana—not creating new statutes, regulations, or enforcement mechanisms. At the other extreme is state participation in the market—the Uruguay plan—where the state is itself a grower, a seller or both. In between is some form of state regulation, which is the Colorado model and hence of most interest for the present discussion. In a state regulation regime, the state is not itself a market participant, but it does license, inspect and tax market participants, which in some sense sanctions some third party participants and excludes others.

These general categories map nicely onto Mikos’s framework. It is clear that a totally decriminalized market would pose no preemption problems—or, perhaps more accurately, that the anti-commandeering principle would trump any potential problems. If a state chooses not to make something illegal, the federal government cannot force it to change its mind or its statutes.

It is equally clear that state provision would be directly preempted. The state would be actively flaunting the CSA itself by growing and selling marijuana. (Though I note that there is a new suit filed by sheriffs in Colorado, Kansas and Nebraska claiming that they are directly preempted because they have to choose between enforcing federal and state law.)

Colorado however has a market with state regulations, which maps onto obstacle preemption. The state is not providing marijuana itself, but it is also doing something between the clear-cut cases of state participation (direct preemption) and state decriminalization (which cannot be commandeered otherwise). This is where we get to difficult questions about what the CSA’s underlying policies are and whether Colorado’s market helps or hinders those goals.

One view sympathetic to Colorado would be that the goal of the CSA is to regulate the substances and control who has access to them. This was the losing argument that California made in defense of its medical marijuana system in Gonzalez v. Raich. However since Raich, Deputy Attorney General James Cole’s memo [PDF] of August 2013 implicitly endorsed California’s position. The Cole memo stated eight enforcement priorities of the federal government: preventing marijuana distribution to minors, the enrichment of criminal cartels, diversion to other states, the distribution of other drugs, violence associated with drug distribution, drugged driving, growing on public land and use on federal property. The guidance was that enforcement efforts should focus on programs that failed to prevent one or more of the eight priorities (though this was just non-binding guidance, as evidenced by US Attorney Melinda Haag’s continuing battles against one California dispensary). The Cole memo is not necessarily relevant evidence to discern the meaning of the CSA, but it does represent the current administration’s conceptions of a good policy consistent with federal enforcement priorities (albeit in a medical context). Colorado’s recreational policy certainly meets seven of these criteria. The remaining issue is diversion, which is what Nebraska and Oklahoma allege in paragraphs 55-64 (and elsewhere) in their complaint.

In addition to disputing the facts, Nebraska and Oklahoma also have a different view of the goals of the CSA. In their view, among the goals of the CSA are to “prohibit entirely the possession or use of marijuana, as one of the controlled substances listed in Schedule I, anywhere in the US, except as a part of a strictly controlled research project.” (Paragraph 44 (emphasis in original).) Any possession of marijuana outside such a project runs counter to the goals of the CSA and is prohibited. It is unclear whether this claim about the CSA’s goal requires proof that, absent a legal market, marijuana is actually unavailable to people—perhaps the CSA’s goal is mere wishful thinking. When it comes to availability, the facts are on Colorado’s side, with adults already having access to medical marijuana in 21 states (and recreational marijuana in four) and teens reporting that pot is easier to buy than beer.

One irony of the position of Nebraska and Oklahoma is that a totally decriminalized—but completely unregulated—market would certainly be immune to federal commandeering and result in much, much more diversion to their states. Unless the plaintiffs think they can roll back any loosening of prohibition, a win for them might leave them pining for the days of Colorado’s regulated market.

In the end, it is unclear where this suit is going. Several Oklahoma conservatives signed a letter opposing the Oklahoma attorney general’s suit because they feared the anti-federalist precedent it might set. It is also unclear what the state of the law is. The complaint quotes Gonzalez v. Raich’s expansive notion of the Commerce Clause (in paragraph 9), but the Obamacare opinion [PDF] of 2011 narrowed the Commerce power considerably. Is the passage of the CSA even constitutional under current commerce power jurisprudence?

On a more basic level there are questions of equity and federalism, and it is difficult to figure out who the wronged party is here. Is Colorado imposing its marijuana policies on Oklahoma and Nebraska, or are Oklahoma and Nebraska imposing their policies on Colorado? Part of the problem is that there is no “there” there—drug crimes are exclusively creatures of statute, and what’s legal and illegal in terms of substances has always varied across time and place (just consider the fact that cocaine in soda came about as the result of a local nineteenth century alcohol prohibition, for example). This makes it different from something like pollution traveling from one state to another—one state could not argues that, say, Nitrogen Oxides are not pollutants. But that is exactly the case here. One state’s scourge is another state’s economic benefit, and the facts are based on differences of opinion, not conditions in the world. (Though a former student of mine has argued that this suit fits into traditional nuisance theory.)

The ultimate solution might not lie in either a court decision or a new set of statutes. The ultimate solution might be for the US to start enforcing the CSA itself. After all, it is illegal to transport marijuana across state lines, and avoiding diversion is one of the eight criteria in the Cole memo. But if the US wants to do that, it needs to do it itself. That would be the most direct solution, and one that would not run afoul of the commandeering principle. If the federal government fails to enforce its laws, that should be where the finger is pointed. This is why one of the states that borders Colorado—Wyoming, home of some very stringent anti-marijuana laws—refused to join the suit, with the governor suggesting he would prefer to sue the federal government directly.

W. David Ball is Professor at Santa Clara Law, where he teaches criminal law, criminal procedure, sentencing and corrections. He is a Co-Chair of the Corrections Committee of the American Bar Association’s Criminal Justice Section, Chair of the Public Safety Working Group for Lt. Gov. Gavin Newsom’s Blue Ribbon Commission on Marijuana Law and Policy and a member of the Advisory Board of the Bill of Rights Defense Committee.

Suggested citation: W. David Ball, Categorizing Nebraska suit to invalidate Colorado marijuana law, JURIST – Academic Commentary, Mar. 17, 2015, http://jurist.org/academic/2015/03/david-ball-marijuana-law.php.