(Seth McConnell, Denver Post file)

Opinion: Why fair-weather federalists Nebraska, Oklahoma are dangerous

The conservative Republican attorneys general of Nebraska and Oklahoma recently filed a lawsuit urging the Supreme Court to invalidate marijuana legalization in neighboring Colorado. The Nebraska-Oklahoma case is based on dubious reasoning. In the unlikely event that the plaintiff states prevail, they will also have set a very dangerous precedent.

The Nebraska-Oklahoma complaint claims that Colorado’s legalization and regulation of marijuana sales under state law is unconstitutional because it goes against the federal Controlled Substances Act, which bans all marijuana possession. But the Constitution does not require states to forbid, under state law, anything that is banned by federal law. The federal government remains free to enforce the federal ban on marijuana in Colorado. But Colorado state officials have no obligation to help them do so. Indeed, as the Supreme Court has repeatedly ruled it is unconstitutional for the federal government to commandeer state officials to enforce federal law.


Colorado legalization lawsuit:
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The two states rely heavily on Gonzales v. Raich, a 2005 Supreme Court decision that ruled that Congress can use its power to regulate interstate commerce to ban possession of medical marijuana, even in cases where the marijuana in question had never crossed state lines or been part of any commercial transaction. But Raich only concluded that Congress can ban marijuana possession under federal law, not that state governments are thereby required to ban it under state law.

Nebraska and Oklahoma also argue that Colorado’s decision to legalize marijuana under state law, harms neighboring states because it facilitates the flow of marijuana across their borders and may increase crime there. Tellingly, the lawsuit simply ignores the many benefits of marijuana legalization, including weakening of organized crime, and avoiding the costs of arresting and imprisoning large numbers of people. If this one-sided reasoning prevails, it will set a dangerous precedent that conservatives, among others, are likely to regret.

Liberal states with strict gun control laws raise exactly the same complaints about the flow of guns from neighboring conservative states with relatively permissive 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 liberal states can force conservative ones to ban any gun sales that are restricted under federal law. The same goes for conservative states that have less restrictive economic or environmental regulations than neighboring states do. Especially if potential benefits are ignored, it is easy to argue that such laws harm neighboring states. Both conservative and liberal states are likely to suffer if their neighbors can use lawsuits to block policy innovations that involve legalizing some activity that they or the federal government prefer to forbid.

The two states are also misguided in seeking to expand the reach of Raich, a dubious ruling that allowed federal power to expand further than ever before, and blatantly goes against the text and original meaning of the Constitution. In other cases, including the Obamacare litigation, Nebraska and Oklahoma have fought to shore up constitutional limits on federal power. But if their interest in that cause is more than just convenient “fair-weather federalism,” they should be working to limit and eventually overrule Raich instead of broadening it.


Ilya Somin is a professor at George Mason University School of Law. He is the author of “Democracy and Political Ignorance: Why Smaller Government is Smarter” (2013); and “The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain” (forthcoming).