If Colorado were Mexico, Gov. John Hickenlooper and the Legislature might get locked up. Here’s how attorneys general for Nebraska and Oklahoma explained it, in a case filed directly with the Supreme Court of the United States:
“The State of Colorado authorizes, oversees, protects and profits from a sprawling $100-million-per-month marijuana growing, processing and retailing organization that exported thousands of pounds of marijuana to some 36 states in 2014. If this entity were based south of our border, the federal government would prosecute it as a drug cartel.”
The court declined Monday to hear the case, which comes as no surprise. The pot conflict involves federal laws and governing philosophies fundamentally at odds. It is a mess to avoid, through sustained procrastination.
Conservatives, who may be inclined to oppose Big Marijuana, have fought to protect and expand federalism since the Civil War. They invoke “states rights” to justify state restrictions on abortion. They argue state governments have rights to define marriage as a union between one man and one woman. Southern federalists claim states rights should prevail in disputes about Confederate flag displays.
States rights advocates lean on the 10th Amendment, which seems clear and concise: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
The Constitution, they argue, does not delegate abortion, marriage or flag regulation to federal authorities.
Liberals — tending to favor same-sex marriage and abortion rights — counter 10th Amendment arguments by invoking the Constitution’s Interstate Commerce Clause. It authorizes the federal government to “regulate Commerce with foreign Nations, and among the several States…” They use almost anything — a woman traveling for an abortion or a same-sex couple crossing state lines — to invoke interstate commerce. They also emphasize the Constitution’s Supremacy Clause, which establishes the Constitution and other federal laws as “the supreme Law of the Land,” as a hedge against federalism.
Conservatives do an about-face on states rights when local and state jurisdictions impose gun control. Some applauded the Supreme Court decisions in Heller v. District of Columbia and McDonald v. Chicago, which negated state and local gun laws. Likewise, liberals tend to abandon their embrace of federal supremacy and interstate commerce when anyone advocates enforcement of federal laws against pot.
The Supreme Court’s decision in Gonzales v. Raich only aggravates confusion. The 2005 ruling cited the Commerce Clause as justification for the federal government’s criminalization, production and use of home-grown marijuana in states that approve the drug for medical applications. Blurring that decision are Obama administration proclamations that federal officials won’t interfere with state legalization of marijuana in states that adequately regulate.
Hunter Thompson on acid could not have conjured a weirder morass. The court would rather untangle Slinkies coated with tar.
From the conflicting rulings, principles and laws has emerged a states rights win for drug use. At least for now.
Freedom from federal intrusion requires a vigilant sense of responsibility. Abuses have long threatened even our most basic rights, including those spelled out in the First and Second Amendments. If we yell “fire” in a crowd, in absence of a fire, we misuse free speech and justify regulation. If Colorado burdens other states with pot, it invites interference.
Soon, we will have a different president and at least one new Supreme Court justice. As such, Colorado’s careless pot market could implode for lack of meaningful controls. Those who value legal pot should insist on regulations that make Colorado less like a foreign cartel. To preserve states rights, prove our system won’t continue to burden neighboring states. Nebraska and Oklahoma lost a battle this week. They won’t likely concede the war.
THE GAZETTE EDITORIAL BOARD
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