Wednesday, December 31, 2014

Sooners and Huskers Take Their Objection to Second-Hand Rocky Mountain High to SCOTUS

By Michael Dorf

I've still got exams and papers to grade, so I'll just let my Verdict column elaborate on the headline. Happy new year!


  1. I note that the Verdict column makes no reference to Gonzales v. Raich, where Justice Scaiia (6-3) shot down Randy Barnett's efforts to undo Wickard v. Filburn (aka "Wickburn," a chronic condition that conservatives have long suffered from the New Deal days of SCOTUS). Rather, Scalia cited Wickburn as precedent in his opinion. Note that Scalia was joined not only by Kennedy but also Stevens, Ginsburg, Souter and Breyer. Justice Thomas, a "liberal (in the Lockean sense) originalist," dissented on the inapplicability of the commerce clause.

    So how will the high and supreme Court rule on the Mile High State's ganja trip? Query: Might the winds across CO carry ganja fumes across its borders into neighboring states? If so, might this make a difference regarding standing via MA v. EPA? In any event, can we expect "high" times post-Raich at SCOTUS?

  2. Regarding this from Mike's Verdict column:

    "So where does the Supreme Court find the operative legal rules and standards to decide state-versus-state cases? The Court applies a body of limited-purpose federal common law that the Justices assemble from prior federal precedents, federal policies implicit in statutes and other authoritative texts, an amalgamation of all of the states’ common law, and, ultimately, their own sense of justice."

    I'm thinking of Heller (5-4) on self-defense read into the 2nd A. There is no federal common law per Erie. Self-defense arose under common law from England to the Colonies to the States, with changes in defining self-defense, both at common law and later by statutes incorporating common law concepts of self-defense. But the States do not have uniform self-defense laws. So is Heller's (5-4 - needs constant repeating) self-defense a result of "an amalgamation of all of the states’ common law [as augmented by statutes], and, ultimately, their own sense of justice."?


    One issue not dwelt upon in the column is that this is a petition for the USSC to practice original jurisdiction. Over at Concurring Opinions, it was asked if the USSC could simply deny it w/o opinion. The general sentiment was "yes."

    The motion does address the "cross-border nuisances" issue touched upon in the essay. It uses cases of that nature as a hook to seek original jurisdiction.

    My assumption was that the bite of this case arises not merely because Colorado is not enforcing federal law. It is regulating and therefor aiding and abetting its breach.

    To take a more controversial case, it would be akin to NY not simply failing to aid the retrieval of fugitive slaves in antebellum times, but passing a law that regulates state underground railroad depots in a way the aids and abets them.

    Looking at the motion, it seems to me that the two states are saying that the "marijuana scheme" violates the supreme law of the land (both statutory and treaty based) in this active fashion. This would be a breach of the Supremacy Clause etc.

    [as the motion phrases it - "can affirmatively authorize the violation of federal law" -- "affirmative" is key -- Raich held the federal ban was reasonable interstate commerce policy -- what other "affirmative" authorization with regulating/taxation can states do to aid breach of federal law here?]

    And, this results in "detrimental impact" (akin to let's say a polluted river flowing into the states) to the plaintiff states providing them with a cause of action. Again, it is not merely inaction (not criminalizing) but action (regulation) that is at stake here.

    [again, telling -- the state is not merely going its own way, but regulation here not only clashes with federal law & treaties but in a way allegedly harming third party states]

    I'm not sympathetic with their ends, but the argument seems a bit more credible some suggest. The weak link might be the harm angle. The links from regulation to actual harms to the states are somewhat hazy.

  4. In response to Joe: There are a few provisions of Colorado law that could be said to affirmatively promote marijuana cultivation and sale, and these may indeed be preempted, but for the most part the CO laws take the form of things people and businesses need to do to avoid prosecution under state law. Accordingly, if the Court were to accept jurisdiction, at most NE and OK could win an injunction against those parts of the CO law that affirmatively encourage or facilitate marijuana cultivation, distribution, and possession--not those that merely fail to penalize it.

  5. But " ... those that merely fail to penalize it" may de facto " ... encourage or facilitate marijuana cultivation, distribution, and possession."

  6. I'm unsure the contours of "take the form of things people and businesses need to do to avoid prosecution under state law" -- a complex question perhaps -- and "affirmative promote" but that sounds significant.

    A trick here is that basic things (e.g., simple regulation of state businesses now that marijuana is legal there) clash with federal policy involving interstate related activity and seem to generally aid and abet its breach.

    I wonder other examples of this of this scope. Anyway, I think the interstate effects is important here. Thanks for taking a break from grading.

  7. Anonymous5:10 PM

    I don't think that Professor Dorf's thought experiment is clarifying. It is one thing for a state to remain neutral simply by being silent either to law as or as to enforcement. Indeed, some justices like Scalia would argue that such silence by the state implies consent to the federal law. However, once the state begins to act I do not think that a state has the ability to act neutrally--that is like claiming that when the state sanctions gay marriage it doesn't mean anything by it. Of course it means something because collective action always means something. The very act of regulating a behavior is an affirmative encouragement or discouragement of the behavior which is being regulated.

    The distinction that Professor's Dorf draws in the comments between actively promote and fails to penalize is without merit. Once the state decides to intervene it chooses sides. T.S. Eliot had a worthwhile thought along these lines, "Neutrality never did exist and if it did it wouldn't be a virtue."

  8. This comment has been removed by the author.

  9. Raich held the federal ban was reasonable interstate commerce policy -- what other "affirmative" authorization with regulating/taxation can states do to aid breach of federal law here?