As we've reported, the states of Nebraska and Oklahoma are asking the U.S. Supreme Court to void Colorado's marijuana laws. But does the complaint, on view below, contradict the conservative ideology espoused by the officials behind it? That's the argument of a Texas pundit and law professor.
As we've reported, the court challenge filed by Nebraska Attorney General Jon Bruning isn't a total surprise. Back in April 2014, we reported about Nebraska cops asking for Colorado to help pay for marijuana enforcement over the border. At the time, Duell County Sheriff Adam Hayward was quoted as saying, "I don't know what it will take to get someone to stand up and do something to try to get some of our money back,"
The following month, Nebraska state senator Ken Schilz floated the idea of increasing penalties for marijuana in the hope that potentially draconian punishment might stem the suspected tide of Colorado pot thought to be flowing into Nebraska.
And predictably, Nebraska cops freaked out about the prospect of pot edibles from Colorado ending up in the Halloween buckets of Nebraska trick-or-treaters. Police officers here had similar fears, but no reported incidents took place.
Nonetheless, Nebraska Attorney General Bruning and his Oklahoma counterpart, Scott Pruitt, remained upset about the decision by Colorado voters to approve Amendment 64, the 2012 measure that legalized limited marijuana sales for recreational purposes in the state, and they want the U.S. Supreme Court to set things right. An excerpt from the document shared here maintains that "Amendment 64 and its resultant statutes and regulations are devoid of safeguards to ensure marijuana cultivated and sold in Colorado is not trafficked to other states, including Plaintiff States," adding that "in passing and enforcing Amendment 64, the State of Colorado has created a dangerous gap in the federal drug control system enacted by the United States Congress. Marijuana flows from this gap into neighboring states, undermining Plaintiff States' own marijuana bans, draining their treasuries, and placing stress on their criminal justice systems."
By the way, Bruning is about to complete his time in office, but Doug Peterson, his successor as Nebraska AG, is reportedly a lawsuit backer, too.
For his part, Oklahoma's Pruitt has issued the following statement:
Fundamentally, Oklahoma and states surrounding Colorado are being impacted by Colorado's decision to legalize and promote the commercialization of marijuana which has injured Oklahoma's ability to enforce our state's policies against marijuana. Federal law classifies marijuana as an illegal drug. The health and safety risks posed by marijuana, especially to children and teens, are well documented. The illegal products being distributed in Colorado are being trafficked across state lines thereby injuring neighboring states like Oklahoma and Nebraska. As the state's chief legal officer, the attorney general's office is taking this step to protect the health and safety of Oklahomans.
In the wake of the filing, outgoing Colorado Attorney General John Suthers pledged to oppose the Nebraska-Oklahoma effort and the Marijuana Policy Project's Mason Tvert suggested that Bruning and Pruitt are on the wrong side of history. But in "Why Are Conservatives Fighting Colorado's Legal Weed?," a new piece published in The Atlantic, author Mario Loyola contends that the move is suspect for another reason. In his view, the action flies in the face of the states-rights philosophy that is supposedly the foundation of conservative political thought in this country. Loyola, whose bio describes him as "a senior fellow at the Texas Public Policy Foundation and an adjunct professor of law at the University of Texas at Austin (his Twitter page also notes his affiliation with the National Review), encapsulates his take like so:
Normally, conservative states like Nebraska and Oklahoma champion state prerogatives, while progressive ones fight for federal uniformity. But this time the roles are almost perfectly reversed, with some conservative states championing federal uniformity, and progressive ones arguing for state diversity. The controversy has revealed an interesting fissure in the conservative movement, between pro-government "law and order" types, and anti-government "stay out of my life" types. The implications could go far beyond the happy Rastafarian admonition: "Legalize it, don't criticize it."
As this excerpt implies, Loyola sees hypocrisy on both sides of the political divide, since liberals who support Colorado's right to make its own marijuana laws are quick to criticize states that defy federal law in other areas -- alleged attempts to limit voting access is one issue that springs to mind. But in this instance, he sees the cost involved in enforcing federal marijuana laws to be a significant factor when it comes to whether states should be able to come up with their own pot policies.
He concludes his piece like so:
Through all its expansions of federal power, the Supreme Court has never held that Congress can dragoon the states into implementing federal law. And that leaves us with one of the most important limitations that still remain on federal power, namely that Congress simply can't afford to regulate everything under the sun.
Conservatives and progressives alike have a common interest in preserving that limitation. Diversity in state regulation is good for democracy, and depends on the maintenance of some limits on the federal government's power. Conservatives should stick to that principle even when it cuts against their preferences on social policies that are better left to the states. And progressives should see the wisdom in forcing the federal government to pass laws that it can actually enforce, and let the states mind their own business.
To read the entire article, click here. Look below to see the complaint filed by Nebraska and Oklahoma.
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