Under the “anti-commandeering principle” that the Court applied inPrintz, requiring local cops to enforce the federal ban on marijuana would be clearly unconstitutional. So when a Colorado cop encounters someone 21 or older with an ounce or less of marijuana (the limit set by state law) and does not confiscate it as contraband under the Controlled Substances Act (CSA), he is not violating his oath to uphold the U.S. Constitution.
Likewise if he finds six or fewer plants in someone’s home and leaves them there or if he passes a state-licensed pot shop and does not try to shut it down.
Similarly, the U.S. Constitution does not require state legislators to mimic federal law by punishing everything Congress decides to treat as a crime. Yet Smith et al. argue that eliminating state penalties for marijuana-related activities violates the CSA and therefore the Supremacy Clause. They are asking the U.S. District Court in Colorado to overturn all the sections of Amendment 64 that say specified activities involving marijuana—including possession and home cultivation as well as commercial production and distribution by state-licensed businesses—”are not unlawful and shall not be an offense under Colorado law.”
To put it another way, the sheriffs want a federal court order requiring Colorado to recriminalize these activities and start busting cannabis consumers, growers, and retailers again. They say the U.S. Constitution requires Colorado to treat those people as criminals, regardless of what Colorado voters or legislators want.
That position cannot be reconciled with the 10th Amendment, which says “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.” Writing state criminal laws is not a power that the Constitution delegates to the federal government.
Smith et al., whose lawsuit is joined by four sheriffs from Nebraska and Kansas who also were offended by Colorado’s decision to legalize marijuana, concede that the CSA does not override all state drug policy choices. “Under 21 U.S.C. § 903,” they note, “the CSA shall not ‘be construed’ to ‘occupy the field’ in which the CSA operates ‘to the exclusion of any [s]tate law on the same subject matter which would otherwise be within’ the state’s authority.
Rather, Section 903 provides that state laws are preempted only when ‘a positive conflict’ exists between a provision of the CSA and a state law’ so that the two cannot consistently stand together.” But the sheriffs claim Amendment 64 creates such a conflict. “The enforcement of the CSA violates Colorado law,” they say, “and conversely adherence to Colorado law violates the CSA.”
That is clearly not true for most of the provisions that Smith et al. are challenging. If Colorado cops stop arresting pot smokers, the pot smokers are violating the CSA, but the cops are not. Likewise with people who grow and transfer marijuana, whether money changes hands or not. They are violating federal law, but the police officers who refrain from dragging them away in handcuffs are not. Conversely, a federal agent who arrests a cannabis grower, seller, or consumer for violating the CSA is not doing anything forbidden by Colorado law.
The sheriffs say Amendment 64 “in some cases” not only allows but “requir[es]” the cultivation and distribution of marijuana. That would indeed be a positive conflict, since it would be impossible to obey both state and federal law. But unless I missed it, the complaint do not cite any actual examples of state-mandated CSA violations.
The sheriffs’ strongest argument echoes the central claim of Nebraska and Oklahoma’s anti-legalization lawsuit: that Colorado’s marijuana regulations “embed state and local government actors with private actors in a state-sanctioned and state-supervised industry which is intended to, and does, cultivate, package, and distribute marijuana for commercial and private possession and use in violation of the CSA.” In other words, the state’s stamp of approval for cannabusinesses goes beyond declining to punish marijuana offenses by actively promoting them.
That is one way of looking at it. Alternatively, you could say a marijuana license merely certifies that the holder has met the criteria for escaping punishment under state law. It does not make him immune to punishment under the CSA, and it does not require him to violate that statute.
Suppose Colorado took this criticism to heart and stopped regulating the marijuana industry. Anyone would be free to grow or sell marijuana without having to seek the state’s blessing. Libertarians might welcome that outcome, but I doubt the sheriffs would. In any case, the existence of state regulations does nothing to strengthen the sheriffs’ argument that they have suffered a personal injury justifying a lawsuit because they are not allowed to bust pot smokers anymore.