Abstract
This Article argues that the pending feuds between neighboring states over marijuana decriminalization demonstrate the need for a strict doctrine limiting a state’s regulatory authority to its own borders. Precedent recognizes that the dormant Commerce Clause (DCC) “precludes the application of a state statute to commerce that takes place wholly outside the State’s borders, whether or not the commerce has effects within the state.” This prohibition protects “the autonomy of the individual States within their respective spheres” by dictating that “[n]o state has the authority to tell other polities what laws they must enact or how affairs must be conducted.” But this principle was called into doubt last summer by the Tenth Circuit, which concluded that this “most dormant doctrine in [DCC] jurisprudence” had withered and died from nonuse. The Tenth Circuit’s conclusion, which approved Colorado’s purported direct regulation of coal-fired power generation in Nebraska, ironically coincided Nebraska’s (and Oklahoma’s) attempt to enjoin Colorado’s pot-friendly laws. Nebraska contends that Colorado’s commercial pot market allows marijuana to “flow...into [Nebraska], undermining [its] own marijuana ban[], draining [its] treasur[y], and placing stress on [its] criminal justice system[].” While Colorado celebrated its new-found power to impose its legislative judgments on Nebraskans, the festivities might be short lived. Colorado failed to recognize the impact the extraterritorial doctrine’s apparent demise will have on its own marijuana-legalization experiment. If Colorado is empowered to regulate coal burning in Nebraska because of its effects in Colorado, what prevents Nebraska from projecting its own laws across the border to regulate Colorado marijuana transactions that affect a substantial number of Nebraskans?
Highlights
Federalism is, as a mentor of mine once observed, a “glass . . . either half empty or half full, depending on the viewer’s standpoint.”[2]. Outside the limited bounds of “fundamental rights”—which the Constitution insulates from government intrusion3—states enjoy wide latitude to criminalize conduct that offends the moral sensibilities of their respective polities.[4]
The Constitution empowers Congress “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”50 “the Commerce Clause is by its text an affirmative grant of power to Congress to regulate interstate and foreign commerce, the Clause has long been recognized as a self-executing limitation on the power of the States to enact laws imposing substantial burdens on such commerce.”[51]. By “bestow[ing] Congress with exclusive plenary powers,” the Clause inversely “deprives in like degree the states’ authority to regulate [those] activities” it entrusts Congress to regulate.[52]
“If [one state], in order to promote the economic welfare of her [own industries], may guard them against competition with [out-of-state competitors], the door has been opened to rivalries and reprisals that were meant to be averted by subjecting commerce between the states to the power of the nation.”[60]. I have referred to this as the dormant Commerce Clause (DCC)’s “anti-protectionist function.”[61]
Summary
Federalism is, as a mentor of mine once observed, a “glass . . . either half empty or half full, depending on the viewer’s standpoint.”[2]. Marijuana is the most lucrative cash crop in the United States.[26] The resulting “high demand for marijuana in the interstate market will draw” weed acquired in pot-friendly states “into that market” thereby having a “substantial effect on the supply and demand” of the drug in the black markets of prohibitionist states.[27] So how can states exercise their “freedom of local selfdetermination” to “afford more freedom than the mean” or “less than the mean” with regard to marijuana policy?28 A state, like Colorado, that chooses to decriminalize the drug implicitly imposes its choice upon its neighbors, inhibiting their “freedom of local self-determination.”[29] if a prohibitionist state, like Nebraska, is able to quell marijuana decriminalization in Colorado, it interferes with the latter’s power to “afford more freedom than the mean.”[30] Marijuana decriminalization, presents one of the most vexing federalism problems of the twenty-first century.[31] This constitutional quandary came into sharp focus in December 2014 when Nebraska and Oklahoma sought to invoke the Supreme Court’s original jurisdiction[32] to enjoin marijuana legalization in Colorado.[33] Their ill-fated. [Vol 58:953 terstate marijuana conflicts demonstrate the need for a vibrant extraterritoriality doctrine.[49]
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