Sheriffs Suing CO to Overturn Amendment 64 and End Legal Pot

Sheriffs from Colorado, and a few neighboring states, are suing Colorado in order to overturn Amendment 64, the state amendment that legalized recreational marijuana in the state. The reasons for the lawsuit are quite interesting. Sheriffs allege that upholding Amendment 64 violates the Supremacy Clause of the US Constitution, putting local law enforcement at odds with federal policy:

As plaintiff Chad Day, sheriff of Yuma County, said: “As a Colorado sheriff, I am put in an untenable position because virtually every time I support Colorado’s marijuana law, I violate federal law, and virtually every time I attempt to support federal law, I violate Amendment 64. My deputies and I, and all of our law-enforcement officers, need to know where the law stands, what we are to enforce and whether marijuana is legal or illegal. Right now, it is chaotic and contradictory — and all parties are at risk as a result.”

As trivial as marijuana legalization may seem, this particular controversy raises an important question concerning federal sovereignty and jurisdiction. Do local law enforcement officials have a responsibility to uphold national law? Or are they agents of local laws alone? Is it absolutely necessary to have sweeping federal policies for all situations? And, if so, would local law enforcement agents actually be employees of the federal government? That is a scary proposition.

As one Colorado sheriff, Bill Masters of San Miguel County, has explained, a local sheriff is not responsible to enforce any laws but local laws:

Unless I’m missing something, and I’m not a constitutional scholar, but I don’t see anywhere in the U.S. Constitution where it requires a local, elected law enforcement official to enforce federal law. We don’t enforce immigration law. We don’t enforce Forest Service or EPA regulations. I don’t see why this is such a conflict for these sheriffs.

The constitution of the state of Colorado is different. It does direct law enforcement officers to act a certain way under those constitutional amendments. But I’m a Jeffersonian Libertarian Democrat. (Jefferson) said, “I’m a citizen of the sovereign state of Virginia.” I go along with that attitude. I’m the sheriff of San Miguel County, and I’m here to uphold the laws of the state of Colorado, not the federal government.

This very situation is what caused many Anti-Federalists to reject the vague wording of the Supremacy Clause (especially when combined with the sweeping language of the Necessary and Proper Clause). As the Anti-Federalist Brutus warned:

. . . It is a truth confirmed by the unerring experience of ages, that every man, and every body of men, invested with power, are ever disposed to increase it, and to acquire a superiority over every thing that stands in their way. This disposition, which is implanted in human nature, will operate in the federal legislature to lessen and ultimately to subvert the state authority, and having such advantages, will most certainly succeed, if the federal government succeeds at all. It must be very evident then, that what this constitution wants of being a complete consolidation of the several parts of the union into one complete government, . . . it will necessarily acquire in its exercise and operation.

In other words, the wording of the Constitution was not specific or limited enough to absolutely preclude the expansion of federal power in practice. And that is largely what has happened. Consider how the modern interpretation of the Supremacy Clause is directly at odds with the wording of the Tenth Amendment. Before the War Between the States, the Supreme Court had a much different view on the sovereignty of states. Consider the majority statement from New York City vs. Miln, written by Justice Philip Barbour:

. . . A State has the same undeniable and unlimited jurisdiction over all persons and things, within its territorial limits, as any foreign nation, where that jurisdiction is not surrendered or restrained by the Constitution of the United States.

In other words, if the Constitution does not explicitly delegate a power to the national government (as per the Tenth Amendment), the national government has no power to contradict the will of a state. This issue becomes very hairy constitutionally when talking about regulating drugs. The federal government claims to have delegated power to regulate drugs, based on its jurisdiction over inter-state commerce.

In fact, that is one of the strongest points of the lawsuit to overturn Amendment 64. Sheriffs claim that legal pot in Colorado is coming over the borders into other states. Which means that the sale of legal marijuana in Colorado is affecting other states, and is a commercial issue. Is that enough of a reason for the federal government to get involved?

Where do you start? If the federal government were to pass a national legalization of marijuana, or at least a rescheduling of marijuana (to Schedule II), what would that mean for these sheriffs? It would resolve their apparent conflict, though probably not to their liking. The other potential possibility is for the federal government to continue its current practice of arbitrary non-intervention: raiding pot growers and sellers at random despite local laws.

Amendment 64 is an interesting test case concerning states’ rights. Unlike homosexual marriage, the conflicting sides of this argument are not as emotionally or personally invested, so dealing with this strictly as a legal issue is a greater possibility. What do you think? Do the states have the right to contradict federal law on marijuana? Which laws should the sheriffs be required to uphold? Is the sale of recreational marijuana an inter-state commerce issue? And does the federal government even have constitutional jurisdiction to regulate drugs?

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