Dangerous implications of the Nebraska-Oklahoma lawsuit against marijuana legalization in Colorado

Co-blogger Jonathan Adler and Vanderbilt law professor Robert Mikos have pointed out some of the flaws in the lawsuit filed by Nebraska and Oklahoma urging a federal court to invalidate marijuana legalization in neighboring Colorado. In the unlikely event that the plaintiff states prevail, they will also have set a very dangerous precedent – one that conservatives are likely to rue in other areas.

Nebraska and Oklahoma argue that Colorado’s decision to legalize marijuana under state law, in the face of continuing federal prohibition, harms neighboring states because it facilitates the flow of marijuana across their borders and may increase crime there. Liberal states with strict gun control laws raise exactly the same complaints about the flow of guns from neighboring conservative states with relatively permissive firearms laws. If Nebraska and Oklahoma can force Colorado to criminalize marijuana under state law because the federal government has done so under federal law, then Maryland can force Virginia to ban any gun sales that are restricted under federal law. Liberals have, in fact, advocated the enactment of stronger federal gun control laws for years. The same goes for conservative states that have less restrictive labor regulations or environmental regulations than neighboring states do.

"I'm asking how he can defend the unconstitutional exercise of federal power under the expansive Commerce Clause, which trashes the Tenth Amendment.'

Well, it doesn't trash the Tenth Amendment if it's a constitutional federal law, given that the Tenth amendment reserves power to the states only if the power was not ceded to the federal government. Which, in the case of regulating commerce, it was.

Secondly, the U.S. Supreme Court did rule that the federal law was constitutional, so I guess I don't understand your claim that it isn't.

Third, the Controlled Substances Act contains Congressional "findings and declarations" stating that:

4) Local distribution and possession of controlled substances contribute to swelling the interstate traffic in such substances.

(5) Controlled substances manufactured and distributed intrastate cannot be differentiated from controlled substances manufactured and distributed interstate. Thus, it is not feasible to distinguish, in terms of controls, between controlled substances manufactured and distributed interstate and controlled substances manufactured and distributed intrastate.

(6) Federal control of the intrastate incidents of the traffic in controlled substances is essential to the effective control of the interstate incidents of such traffic.

So it appears as though Congress would be unable to regulate the interstate commerce of illegal drugs unless they also regulated the intrastate commerce of illegal drugs. Why would the Founding Fathers give Congress a power that the states could easily negate -- as evidenced by the above lawsuit?

Fourth, you keep referring to the "expansive" Commerce Clause. Perhaps Congress didn't always exercise this power, but it was there. Although you are correct that Congress cannot regulate intrastate commerce, they can if that commerce affects other states -- going all the way back to 1824:

"It is not intended to say that these words comprehend that commerce, which is completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect other States.
-- GIBBONS v. OGDEN, 22 U.S. 1

Lastly, there is a historical reason. Prior to Prohibition, our country attempted to regulate alcohol on a state-by-state basis. It didn't work then, and it won't work today with drugs.

Secondly, the U.S. Supreme Court did rule that the federal law was constitutional, so I guess I don't understand your claim that it isn't.

The U.S. Supreme Court did rule that there is a constitutional right to abortion - does that make it true?

True or not, their ruling makes abortion legal.

That was never under dispute. But I think you do in fact understand the claims that Roe v Wade, or the Controlled Substances Act, are unconstitutional - that's what comes under the "true or not" you refer to.

Congressional "findings and declarations

Those are 'evidence' only of Congress' desire for power.

Then your job is easy. Refute their findings and the law comes crashing down.

There is no obligation to refute that which has been merely asserted with no supporting evidence. However:

"(5) Controlled substances manufactured and distributed intrastate cannot be differentiated from controlled substances manufactured and distributed interstate."

Clearly false - any goods interdicted during a transfer across a state border have thereby been proven to be distributed interstate.

"(6) Federal control of the intrastate incidents of the traffic in controlled substances is essential to the effective control of the interstate incidents of such traffic."

Purely speculative, as no attempt had been made before or since to control interstate traffic without instrastate control.

The power to enact Prohibition was granted by a constitutional amendment - there is none such regarding other drugs.

True. But it wasn't required.

So it was on a lark that they underwent the process of ratification by three-quarters of the states?

"But I think you do in fact understand the claims that Roe v Wade, or the Controlled Substances Act, are unconstitutional - that's what comes under the "true or not" you refer to."

Yes. It is true that people have "claimed" the CSA to be unconstitutional. People have also "claimed" that there is man-made global warming, too.

"Clearly false - any goods interdicted during a transfer across a state border have thereby been proven to be distributed interstate."

Correct. But only during the instant of the transfer. Goods on either side of the state border would be legal as there is no way to identify the origin of those goods. Which was the point of the finding.

"Purely speculative, as no attempt had been made before or since to control interstate traffic without instrastate control."

It was attempted with alcohol. The 1913 Webb-Kenyon Act made it a violation of federal law to ship an intoxicating beverage interstate. It failed. Miserably.

"So it was on a lark that they underwent the process of ratification by three-quarters of the states?"

A lark? Awww. I think you're funnin' with me.

No. The Anti-Saloon League insisted on a constitutional amendment, believing it would be harder to overturn by a weak-willed populace having second thoughts. Keep in mind, Jefferson banned the sale of alcohol to the Indian tribes without an amendment.

But I think you do in fact understand the claims that Roe v Wade, or the Controlled Substances Act, are unconstitutional - that's what comes under the "true or not" you refer to.

Yes. It is true that people have "claimed" the CSA to be unconstitutional. People have also "claimed" that there is man-made global warming, too.

Is the unconstitutionality of Roe v Wade - or Obamacare - also merely a "claim"?

Clearly false - any goods interdicted during a transfer across a state border have thereby been proven to be distributed interstate.

Patent nonsense - find a vehicle full of pot with CO plates and registered in CO being driven by a CO resident in a neighboring state and you have plenty of ways to identify the origin of that pot.

Purely speculative, as no attempt had been made before or since to control interstate traffic without instrastate control.

It was attempted with alcohol. The 1913 Webb-Kenyon Act made it a violation of federal law to ship an intoxicating beverage interstate. It failed. Miserably.

According to President Nixon's National Commission on Marihuana and Drug Abuse, "The lack of federal enforcement rendered the statute [the Webb-Kenyon Act] virtually meaningless."

Make that: no substantive attempt had been made before or since to control interstate traffic without instrastate control.

So it was on a lark that they underwent the process of ratification by three-quarters of the states?

No. The Anti-Saloon League insisted on a constitutional amendment, believing it would be harder to overturn by a weak-willed populace having second thoughts.

Do you have any evidence that this was their reason? I've looked and can't find any.

Keep in mind, Jefferson banned the sale of alcohol to the Indian tribes without an amendment.

No help for you there - regulating commerce with the Indian tribes is a federal power explicitly granted by Article I Section 8.

That’s up to you. Your argument, which you made repeatedly, was that the lawyer in the article is wrong because he is pro-abortion and pro-drug.

I’m pointing out that by the same logic, you should agree with Patrick Kennedy on abortion (he loveloveloves it!) since you spout Kennedy’s line on marijuana.

Your argument is that one has to agree with everything or nothing a person says. Own your argument.

You’re the one in total agreement with Patrick Kennedy, an admitted druggie, a drunk driver and regular old drunk, on the issue of drugs.

Because if Patrick Kennedy can’t manage his life, and he really can’t, it makes sense to him (and using your own argument, you) to have the government manage it for him and everyone else.

Or maybe, just maybe, someone can be wrong about one thing (abortion) and right about others (the WOD not helping people quit drugs.

I don’t do drugs.

I don’t drink.

I’m just sick to death of our now militarized police force, and cops using flash-bang grenades which burn off baby faces.

See, I love babies before and after they are born and am tired of the collateral “oopsies” that kill children and their families in the WOD. The same WOD that has yet to stop anyone any where from doing drugs.

I do not know what the answer is. I just know that it isn’t a further erosion of our rights with no results.

"Is the unconstitutionality of Roe v Wade - or Obamacare - also merely a "claim"?"

Given that the U.S. Supreme Court has ruled both constitutional, yes.

"Patent nonsense - find a vehicle full of pot with CO plates and registered in CO being driven by a CO resident in a neighboring state and you have plenty of ways to identify the origin of that pot."

None that would hold up in court under your definition of the law. Unless the vehicle was observed crossing the state line, there is no crime.

"Make that: no substantive attempt had been made before or since to control interstate traffic without instrastate control."

A substantive attempt. Which would mean federal agents patrolling the state borders of all 50 states. When they can't even protect our southern border.

Well, I suppose we could do it your way. I don't think you'd like it, though.

"Do you have any evidence that this was their reason? I've looked and can't find any."

"An amendment to the Constitution obviously appealed to temperance reformers more than a federal statute banning liquor. A simple congressional majority could adopt a statute but, with the shift of a relatively few votes, could likewise topple one. Drys feared that an ordinary law would be in constant danger of being overturned owing to pressure from liquor industry interests or the growing population of liquor-using immigrants. A constitutional amendment, on the other hand, though more difficult to achieve, would be impervious to change. Their reform would not only have been adopted, the Anti-Saloon League reasoned, but would be protected from future human weakness and backsliding."
-- http://www.druglibrary.org/schaffer/history/rnp/RNP1.html

Your turn. Do you have any evidence that a constitutional amendment was required? I've looked and can't find any.

"No help for you there - regulating commerce with the Indian tribes is a federal power explicitly granted by Article I Section 8."

Yes. But the same clause gives the same power to regulate commerce with foreign nations and among the states.

It is true that people have "claimed" the CSA to be unconstitutional. People have also "claimed" that there is man-made global warming, too.

Is the unconstitutionality of Roe v Wade - or Obamacare - also merely a "claim"?

Given that the U.S. Supreme Court has ruled both constitutional, yes.

We'll have to agree to disagree - I maintain that part of the genius of the Founding Fathers was to compose a Constitution that could be understood by any well-read citizen, so we have no need to rely on lawyers, legal scholars, or even justices to tell us what is and is not in accord with the Constitution.

I'll also note, without claiming it proves anything, that many (I suspect most) FReepers would vigorously disagree with the claim that the unconstitutionality of Roe v Wade or Obamacare are merely "claims" on par with the claim that there is man-made global warming.

Patent nonsense - find a vehicle full of pot with CO plates and registered in CO being driven by a CO resident in a neighboring state and you have plenty of ways to identify the origin of that pot.

None that would hold up in court under your definition of the law. Unless the vehicle was observed crossing the state line, there is no crime.

Clearly wrong - while usually sufficient, eyewitness testimony to the moment of commission of a criminal act has never been necessary to establish guilt beyond reasonable doubt; many criiminal convictions have been obtained without such testimony.

Make that: no substantive attempt had been made before or since to control interstate traffic without instrastate control.

A substantive attempt. Which would mean federal agents patrolling the state borders of all 50 states. When they can't even protect our southern border.

Well, I suppose we could do it your way. I don't think you'd like it, though.

Not my way but the Constitution's way - why wouldn't I like that?

"An amendment to the Constitution obviously appealed to temperance reformers more than a federal statute banning liquor. A simple congressional majority could adopt a statute but, with the shift of a relatively few votes, could likewise topple one. Drys feared that an ordinary law would be in constant danger of being overturned owing to pressure from liquor industry interests or the growing population of liquor-using immigrants. A constitutional amendment, on the other hand, though more difficult to achieve, would be impervious to change. Their reform would not only have been adopted, the Anti-Saloon League reasoned, but would be protected from future human weakness and backsliding."
-- http://www.druglibrary.org/schaffer/history/rnp/RNP1.html

It seems they did think a statute was permissible - but in evaluating the correctness of this belief, one should keep in mind that your link goes on to say that Prohibition sprang from a Progessive mindset, which is one not known for its regard for constitutional limits on social engineering.

Your turn. Do you have any evidence that a constitutional amendment was required? I've looked and can't find any.

You need look no further than the Commerce Clause's pointed exclusion of intrastate commerce, and the Tenth Amendment.

No help for you there - regulating commerce with the Indian tribes is a federal power explicitly granted by Article I Section 8.

Yes. But the same clause gives the same power to regulate commerce with foreign nations and among the states.

Strikingly absent is the power to regulate commerce within individual states.

"FReepers would vigorously disagree with the claim that the unconstitutionality of Roe v Wade or Obamacare are merely "claims" on par with the claim that there is man-made global warming."

Which is why I would prefer to stay on topic and limit the discussion to the legalization of marijuana at the state level.

"Clearly wrong - while usually sufficient, eyewitness testimony to the moment of commission of a criminal act has never been necessary to establish guilt beyond reasonable doubt;"

Fine. So we have a car with Colorado plates parked in Oklahoma, with a trunk full of marijuana. What law, under your scenario, have they broken?

"Not my way but the Constitution's way - why wouldn't I like that?"

Well then, my bad. I thought you might object to living in a police state.

"You need look no further than the Commerce Clause's pointed exclusion of intrastate commerce, and the Tenth Amendment."

Intrastate commerce is excluded, unless it has an affect on the interstate commerce that Congress is constitutionally regulating. Certainly you wouldn't exclude intrastate flights from FAA control?

"Strikingly absent is the power to regulate commerce within individual states."

Irrelevant. My point was that Congress did not need a constitutional amendment to prohibit the sale of alcohol to the Indians.

the U.S. Supreme Court did rule that the federal law [regarding "the cultivation, sale and use of whacky tobacco"] was constitutional, so I guess I don't understand your claim that it isn't.

The U.S. Supreme Court did rule that there is a constitutional right to abortion - does that make it true?

True or not, their ruling makes abortion legal.

I think you do in fact understand the claims that Roe v Wade, or the Controlled Substances Act, are unconstitutional - that's what comes under the "true or not" you refer to.

It is true that people have "claimed" the CSA to be unconstitutional. People have also "claimed" that there is man-made global warming, too.

Is the unconstitutionality of Roe v Wade - or Obamacare - also merely a "claim"?

Given that the U.S. Supreme Court has ruled both constitutional, yes.

Which is why I would prefer to stay on topic and limit the discussion to the legalization of marijuana at the state level.

You implied that it was nonsensical to call unconstitutional that which the Supremes have ruled constitutional, and that implication makes the subsequent exchange on-topic. If you can't take the heat don't open the door to the kitchen.

Clearly wrong - while usually sufficient, eyewitness testimony to the moment of commission of a criminal act has never been necessary to establish guilt beyond reasonable doubt;

Fine. So we have a car with Colorado plates parked in Oklahoma, with a trunk full of marijuana. What law, under your scenario, have they broken?

Oklahoma law, for starters - and they've established probable cause to retrace their steps and determine what legal Colorado seller sold them the pot - which is possible because legal regulated sellers of any good keep the standard sorts of records (in addition to any pot-specific requirements of CO law).

I thought you might object to living in a police state.

LOL! The current state of affairs, with federal agents patrolling the interiors of all 50 states, is much more of a police state than federal agents patrolling the state borders of all 50 states (from which I doubt they're absent today).

You need look no further than the Commerce Clause's pointed exclusion of intrastate commerce, and the Tenth Amendment.

Intrastate commerce is excluded, unless it has an affect

There is no such exception in the text of the Constitution - that's a fabrication of the FDR courts and later.

on the interstate commerce that Congress is constitutionally regulating. Certainly you wouldn't exclude intrastate flights from FAA control?

I thought you would prefer to stay on topic. But since you ask, I believe I would so exclude.

Jefferson banned the sale of alcohol to the Indian tribes without an amendment.

No help for you there - regulating commerce with the Indian tribes is a federal power explicitly granted by Article I Section 8.

Yes. But the same clause gives the same power to regulate commerce with foreign nations and among the states.

Strikingly absent is the power to regulate commerce within individual states.

Irrelevant. My point was that Congress did not need a constitutional amendment to prohibit the sale of alcohol to the Indians.

I thought you would prefer to stay on topic. Your point was already shown to give no support to your claim of constitutionality for a statute banning alcohol - you're arguing in circles (irrelevant ones, to boot).

"You implied that it was nonsensical to call unconstitutional that which the Supremes have ruled constitutional"

Once the U.S. Supreme Court has ruled, yes it is nonsensical. How is it otherwise?

"and that implication makes the subsequent exchange on-topic."

Not if the debate is about the Commerce Clause. Roe v Wade involved the right to privacy, and Obamacare was Congress' power to tax.

I'm happy to discuss those topics on another thread. This one is getting long enough.

"Oklahoma law, for starters - and they've established probable cause to retrace their steps and determine what legal Colorado seller sold them the pot - which is possible because legal regulated sellers of any good keep the standard sorts of records (in addition to any pot-specific requirements of CO law)."

Who sold what to who? A car with Colorado plates is sitting in Arkansas with a trunkload of pot. Your law states that it's only illegal when marijuana crosses state lines.

Certainly there is reasonable suspicion that a crime has been, or is about to be, committed. An investigation is legally warranted. But an arrest? I don't understand what law has been broken.

"sellers of any good keep the standard sorts of records

For illegal activity? I'm understandably reluctant to depend on good record-keeping by the smugglers to enforce our drug laws.

"There is no such exception in the text of the Constitution"

I believe you're the one making an exception. The text reads "among the several states", not "between the several states".

We can go back to 1824 (in Gibbons v Ogden) where Founding Father and Chief Justice Marshall ruled that Congress could not regulate intrastate commerce that had no effect on other states.

"I thought you would prefer to stay on topic. But since you ask, I believe I would so exclude."

"On-topic" being the Commerce Clause applied to intrastate commerce.

You would exclude intrastate flights from FAA control? Wow. I guess a few mid-air collisions are the price we pay for freedom.

"I thought you would prefer to stay on topic."

The topic was the Commerce Clause and drugs. My point was that Congress could use the power of the Commerce Clause to ban alcohol, and that an amendment was not necessary. In support of my statement, I pointed out that Congress did use that power to ban -- by statute -- alcohol sales to the Indian tribes. That same Commerce Clause power can also be used "among the several sates" and "with foreign nations", since all are included under the power to regulate.

You implied that it was nonsensical to call unconstitutional that which the Supremes have ruled constitutional

Once the U.S. Supreme Court has ruled, yes it is nonsensical. How is it otherwise?

Already answered: "I maintain that part of the genius of the Founding Fathers was to compose a Constitution that could be understood by any well-read citizen, so we have no need to rely on lawyers, legal scholars, or even justices to tell us what is and is not in accord with the Constitution."

and that implication makes the subsequent exchange on-topic.

Not if the debate is about the Commerce Clause. Roe v Wade involved the right to privacy, and Obamacare was Congress' power to tax.

Your claim that "Once the U.S. Supreme Court has ruled, yes it is nonsensical [to call a ruling unconstitutional]" applies with equal force to the Commerce Clause, the right to privacy, and Congress' power to tax - so all are equally relevant to your claim.

Who sold what to who? A car with Colorado plates is sitting in Arkansas with a trunkload of pot. Your law states that it's only illegal when marijuana crosses state lines.

Certainly there is reasonable suspicion that a crime has been, or is about to be, committed. An investigation is legally warranted. But an arrest? I don't understand what law has been broken.

This is the first you've said about an arrest. The feds have grounds to get warrants for further investigation - and if they can't hold the pot pending the outcome of their investigation, Arkansas will have it in their evidence locker for the violation of Arkansas law.

sellers of any good keep the standard sorts of records

For illegal activity? I'm understandably reluctant to depend on good record-keeping by the smugglers to enforce our drug laws.

If you're going to distort my statement to construct a straw man, have at least the low animal cunning to not quote my full text a few lines previously: "legal regulated sellers of any good keep the standard sorts of records".

There is no such exception in the text of the Constitution

I believe you're the one making an exception. The text reads "among the several states", not "between the several states".

No help for you there - commerce within a state that affects another state is not commerce "among the several states."

We can go back to 1824 (in Gibbons v Ogden) where Founding Father and Chief Justice Marshall ruled that Congress could not regulate intrastate commerce that had no effect on other states.

No help for you there - that ruling doesn't imply that Congress CAN regulate intrastate commerce that DOES have an effect on other states. In fact, the reason for noting this nonexhaustive example of restriction on federal power was to illustrate that even this narrow example would be effectively nullified by Ogden's argument that the state of New York had "a concurrent power to regulate commerce": "To sustain the interference of the State, in a high concern of maritime commerce, the argument adopts a principle which acknowledges the right of Congress, over a vast scope of internal legislation, which no one has heretofore supposed to be within its powers. But this is not all; for it is admitted, that when Congress and the States have power to legislate over the same subject, the power of Congress, when exercised, controls or extinguishes the State power; and, therefore, the consequence would seem to follow, from the argument, that all State legislation, over such subjects as have been mentioned, is, at all times, liable to the superior power of Congress; a consequence, which no one would admit for a moment." (emphasis added)

You would exclude intrastate flights from FAA control? Wow. I guess a few mid-air collisions are the price we pay for freedom.

So it's federal regulation or a free-for-all? Your bootlicking is noted and mocked.

My point was that Congress could use the power of the Commerce Clause to ban alcohol, and that an amendment was not necessary. In support of my statement, I pointed out that Congress did use that power to ban -- by statute -- alcohol sales to the Indian tribes. That same Commerce Clause power can also be used "among the several sates" and "with foreign nations", since all are included under the power to regulate.

That doesn't support your statement, since the actions you cite are explcitly authorized by the Constitution, which a general alcohol ban is not.

Merry Christmas, offwhite!

"Already answered: "I maintain that part of the genius of the Founding Fathers was to compose a Constitution that could be understood by any well-read citizen, so we have no need to rely on lawyers, legal scholars, or even justices to tell us what is and is not in accord with the Constitution."

Marbury v Madison assigned the final word to the U.S. Supreme Court. Someone has to make a decision as to what is and what is not constitutional.

You say it should be the citizens? How would that work?

"The feds have grounds to get warrants for further investigation"

They'd need probable cause for that. Which they don't have. You're simply proposing the use of harassment as a substitute for good law.

"legal regulated sellers of any good keep the standard sorts of records".

First, illegal sales would obviously be "off the books". Second, just how detailed are these "records" -- would you insist on the names and addresses of all the buyers so the feds could track the sales? Third, you're the one with the strawman, setting up "legally regulated sellers" as the only ones selling marijuana across state lines.

"that ruling doesn't imply that Congress CAN regulate intrastate commerce that DOES have an effect on other states"

Then there would have been no need to even mention it. But it was mentioned. Why?

Gibbons v Ogden was brought up simply because it was the earliest reference to "an effect on other states" that I could find. The Shreveport Rate Cases (1914 -- decades before FDR) was much more definitive:

"Wherever the interstate and intrastate transactions of carriers are so related that the government of the one involves the control of the other, it is Congress, and not the state, that is entitled to prescribe the final and dominant rule, for otherwise Congress would be denied the exercise of its constitutional authority, and the state, and not the nation, would be supreme within the national field."

"Your bootlicking is noted and mocked."

Now, now. Just because I pointed out the utter unthinking foolishness and inanity of your remark is no reason to start hurling insults.

"That doesn't support your statement, since the actions you cite are explcitly authorized by the Constitution, which a general alcohol ban is not."

The Commerce Clause gives Congress the power to regulate commerce "with foreign Nations, and among the several States, and with the Indian tribes."

Are you saying that Congress can regulate (ban) commerce (sales of alcohol) with the Indian tribes but not among the several states? Does "regulate" have different meanings, depending on the target?

I don't understand your point.

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