by Ryan McMaken, Mises Institute

The nullification of federal drug laws by Colorado, Washington, Oregon, and Alaska has for years been flipping the usual narrative on political parties in the United States.

“Local control” has long been regarded as the domain of right wingers, but ever since the movement to legalize marijuana at the state level using statewide plebiscites has gotten traction, the Obama administration has decided to look the other way in the face of local opposition to federal law.

Unlike Chris Christie, who swore — if elected president — to force prohibition once again, by brute force, on Colorado, the Obama administration has said extremely little on the matter. Essentially, it appears the administration is unwilling to concede power over drug policy in the states, but is also unwilling to actually send in federal agents to overturn the outcome of a valid statewide election.

In response to federal inaction by the Democratic administration, Republican attorneys general in Oklahoma and Nebraska have sued Colorado for legalizing recreational marijuana, claiming that the excessive freedom in their neighbor is placing too much of a burden on local law enforcement as the agencies attempt to stop importation of marijuana from where it can be bought legally across the border.

In a new legal development, the US Supreme Court this week declined to hear the lawsuit, which arguably falls under the Court’s original jurisdiction as outlined by the US Constitution. By a vote of 6-2, the court nevertheless voted to wave off the lawsuit, although the two plaintiff states can attempt to gain a judgment in their favor through the district courts.

According to Inc., “Before handing down the decision, the justices asked the Obama administration for guidance and the Justice Department told the court not to hear the case.”

This deals a blow to Oklahoma’s and Nebraska’s efforts to drive yet another stake through the heart of federalism and decentralization in the United States, although, it’s not yet a fatal blow.

The position of the Nebraska and Oklahoma AGs is essentially that the Federal government should declare itself supreme over all state law, and void any local efforts to govern behavior that takes place within its own borders. To do this, the AGs have constructed a bizarre and transparently cynical argument that the Colorado government has created a criminal cartel by allowing more freedom to Coloradans.

So far, it seems SCOTUS isn’t buying it, and may agree with the US Solicitor General sent by the Obama administration to condemn the case. To wit:

“Entertaining the type of dispute at issue here–essentially that one state’s laws make it more likely that third parties will violate federal and state law in another state–would represent a substantial and unwarranted expansion of this court’s original jurisdiction,” Solicitor General Donald Verrilli said.

What’s especially interesting here is that this view of the case reminds us of the opposition to slaveholding supporters of the fugitive slave laws. Prior to the Civil War, faced with neighboring Northern states that refused to enforce federal laws on returning fugitive slaves to their “owners,” the slave states argued that total state-level emancipation right across state lines encouraged underground efforts to free slave, and encouraged the slaves themselves to commit the heinous crime of fleeing their kidnappers. Northern states had been refusing to abide by and enforce federal pro-slavery law on the matter. The answer, the slave states argued, was to force the Northern states to comply with the Fugitive Slave Act.

In other words, the slaveholders wanted federal agents to actively invalidate local laws, customs, and legal rulings that supposedly increased lawbreaking in a neighboring state. Like the slave drivers of old, the AGs of Nebraska and Oklahoma want the federal government (and thus, US taxpayers) to do their work for them, and essentially force the preferences of the Oklahoma and Nebraska governments onto a neighboring state.

The Obama administration has used a limited argument here, arguing only that the case should be rejected because it doesn’t quite fit under the court’s original jurisdiction. However, the implied skepticism for the argument that “one state’s laws make it more likely that third parties will violate federal and state law in another state” perhaps hints at future legal opposition from Obama allies on this matter.

On the other hand, If the issue were to touch on private gun ownership instead of drugs, you can be sure the arguments would be reversed.

This post was originally published at and is reposted here under a CreativeCommons, Non-Commericial 3.0 license.

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