Colorado Sheriffs Say Marijuana Legalization Should Be Overturned Because It Makes Them UncomfortableTheir lawsuit argues that the Constitution requires them to bust pot smokers.Jacob Sullum
Reason.com
Today six Colorado sheriffs filed a federal lawsuit that seeks to reverse marijuana legalization in their state, which they say should be overturned because it makes them uncomfortable. Larimer County Sheriff Justin Smith and his counterparts in five other counties say Amendment 64, the marijuana legalization measure that is now part of Colorado's constitution, has made their jobs harder by creating a conflict between state and federal law. "When these Colorado Sheriffs encounter marijuana while performing their duties," their complaint says, "each is placed in the position of having to choose between violating his oath to uphold the U.S. Constitution and violating his oath to uphold the Colorado Constitution." This supposed dilemma arises from Smith et al.'s mistaken assumption that they have an obligation to help the federal government enforce its ban on marijuana.
According to the Supreme Court's extremely generous reading of the power to regulate interstate commerce, Congress has the authority to ban cultivation, possession, and distribution of marijuana, even when those activities are permitted under state law and do not cross state lines (in fact, even when they are confined entirely to the privacy of someone's home). The federal government therefore may continue to enforce marijuana prohibition in Colorado. But contrary to what the sheriffs seem to think, that does not mean they are required to lend a hand, notwithstanding the Supremacy Clause, which makes valid acts of Congress "the supreme law of the land." Under our federalist system, Congress has no authority to dragoon state and local officials into enforcing its laws—a point the Court made clear in Printz v. United States, a 1997 case involving federally mandated background checks for gun buyers.
Under the "anti-commandeering principle" that the Court applied in Printz, 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.
More at:
http://reason.com/blog/2015/03/05/colorado-sheriffs-say-marijuana-legaliza
