Pruitt Lawsuit Raises Constitutional Questions
"Fundamentally, Oklahoma and states surrounding Colorado are being impacted by Colorado's decision to legalize and promote the commercialization of marijuana 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," Attorney General Pruitt said.
Pruitt's action was surprising, because he has been in the forefront of pushing back against federal overreach in relations with the states, even to establishing a "federalism unit" in the AG's office. In fact, Pruitt's lawsuit against Affordable Care Act (popularly known as Obama Care) has made him a hero to those who believe the Constitution created a federal, not a unitary system of government.
In the Affordable Care Act, subsidies, in the form of tax credits, are available only to persons who buy insurance through state-established exchanges. Since Oklahoma is one of thirty-seven states which have not established these exchanges, the Obama Administration has asserted these exchanges can be substituted by the federal exchanges. Without the exchanges and the subsidies, ObamaCare would be unworkable. The act simply did not provide for what the Obama Administration wishes to do, however, which is why Pruitt's lawsuit would effectively end ObamaCare.
Pruitt has also attacked the Obama Administration on federalism grounds, in areas such as immigration and the Environmental Protection Agency (EPA). This aggressive push-back by Pruitt against the federal government's attacks upon state authority has been cheered by constitutional conservatives.
This latest lawsuit, however, has drawn opposition from some of the same folks who considered Pruitt an effective and sincere champion of federalism.
Ilya Somin, writing in the Washington Post, said, "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." The basis of the lawsuit is that Colorado's legalization of marijuana harms neighboring states because it facilitates the flow of marijuana into their states, and may increase crime there. But, Somin wrote, "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."
Somin wrote that liberal states have made similar arguments about conservative states with less restrictive labor regulations or environmental regulations than them.
The Supreme Court, in Gonzales v. Raich, argued that Congress can use its power to regulate interstate commerce to ban the possession of marijuana that had never crossed state lines or been sold in any market. Somin sees Pruitt's lawsuit as simply strengthening the use of the commerce clause to over-ride federalism and the 10th Amendment.
One might think that the Washington Post might not be a good source to speak of conservative opposition, but concerns about Pruitt's lawsuit were also raised in The New American magazine, a source of strong paleo-conservative positions. In New American's online version, Alex Newman was blunt: "In a bid to impose unconstitutional federal statues and United Nations schemes on the people of a neighboring state, top officials in Oklahoma and Nebraska launched a federal lawsuit last week against Colorado."
According to Newman, Pruitt alleges that the power to prohibit marijuana is derived from "acts of Congress, including the Controlled Substances Act, . . . , and international treaties, conventions, and protocols to which the United States is signatory." The suit cited a series of three UN agreements that mandate global marijuana production.
Thomas Jefferson specifically rejected the argument that the federal government could expand its powers beyond those enumerated in the Constitution by treaty. "I say the same as to the opinion of those who consider the grant of the treaty-making power as boundless. If it is, then we have no Constitution." Newman notes the "irony" that Oklahoma's legislature "has been at the forefront of the fast-growing movement across America to use nullification as a means of protecting citizens of a state from unconstitutional federal statutes."
The New American also quotes Ilya Somin, the George Mason University law professor and the author of the article in the Washington Post: "I highly doubt that Nebraska and Oklahoma will win their case. But if they do somehow prevail, the biggest losers will be advocates of constitutional limits on federal power."
An Oklahoma legislator is also concerned with the action. "This is not about marijuana at its core -- it is about the U.S. Constitution, the Tenth Amendment, and the right of states to govern themselves as they see fit," said state Rep. Mike Ritze (R-Broken Arrow). "If the Supreme Court can force Colorado to criminalize a substance or activity and commandeer state resources to enforce extra-constitutional federal statutes and UN agreements, then it can essentially do anything, and states become mere administrative units for Washington, D.C. That is not what our Founding Fathers had in mind and that is not what the people of Oklahoma stand for. The Constitution reserved the police power to the states, therefore states are the proper venue for determining what their own civil and criminal codes should be, not the federal government or the UN. Our Founding Fathers intended the states to be laboratories of self-government, free to tinker and experiment with different ideas. The founders, from Jefferson to Madison, were also strong proponents of states nullifying unconstitutional federal actions. If the people of Colorado want to end prohibition of marijuana, while I may personally disagree with the decision, constitutionally speaking, they are entitled to do so. Neither the commerce clause nor the supremacy clause grants the federal government the power to regulate intrastate trade or commandeer state and local resources in pursuit of a policy. If citizens of that state don't like it, they are free to use the process to change the laws or move to another state. The last thing we need is the federal government and the UN trying to dictate our criminal codes and control our commercial activities."
Scott Pruitt has been seen as a likely candidate for another office when he is term-limited in 2018. It will be interesting to see how this lawsuit will impact those ambitions among conservatives in the Sooner state.
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