Federalist Rolling Papers

Two states’ rights advocates are pursuing a silly lawsuit to the Supreme Court that could undermine states’ rights.

Oklahoma Attorney General Scott Pruitt, left, and Jon Bruning, Republican from Nebraska.

Fair-weather federalists: Oklahoma Attorney General Scott Pruitt, left, and Nebraska Attorney General Jon Bruning.

Photo illustration by Slate. Photo courtesy the Oklahoma Office of the Attorney General; Photo by Bill Clark/Roll Call/Getty Images

The attorneys general of Nebraska and Oklahoma have decided that they should have a say over what happens in the state of Colorado. Just before the holidays, the two men, Jon Bruning and Scott Pruitt, filed a lawsuit against Colorado for legalizing marijuana. The suit is a long shot, but some respected legal scholars think Bruning and Pruitt have a fighting chance. Should they succeed, their case could lead to epic battles among the states over regulation of guns and pollution—and give Congress unprecedented power.

Bruning and Pruitt’s crusade against Colorado’s marijuana laws conflicts with their ostensible support of states’ rights. As attorney general of Nebraska, Bruning has fought Obamacare with the fanaticism of a zealot, arguing in a legal challenge that the law tramped upon states’ rights. As attorney general of Oklahoma, Pruitt has led the next major challenge to the act, insisting that the federal government must respect states’ decisions not to set up their own exchanges and to deny their citizens cheap access to good insurance. Both men believe their states have a right to control their own health insurance systems.

But when another state decides to experiment with a new drug policy, Bruning and Pruitt’s support for state sovereignty dries up. They are arguing that Congress’s prohibition against marijuana should force every state to prohibit it as well. (These attorneys general aren’t opposed to all intoxicants. Their position on marijuana might have something to do with the fact that both Bruning and Pruitt have received significant campaign contributions from alcohol industries.)

This strange little lawsuit against Colorado is so astonishingly hypocritical, so brazenly antipodal to Bruning and Pruitt’s professed philosophy, that even admirers of both men are aghast. Case Western Law’s Jonathan H. Adler, the mastermind behind the latest Obamacare suit, noted with disgust that “it is as if their arguments about federalism and state autonomy were not arguments of principle but rather an opportunistic effort to challenge federal policies they don’t like on other grounds.” Georgetown Law’s Randy Barnett, who brought the first Obamacare suit from the fringe to the mainstream, wrote that “I see no other way to interpret Nebraska and Oklahoma’s lawsuits than as an example of ‘fair weather federalism.’ ” (Federalism describes the balance of power between states and the central government; self-described federalists favor increased state autonomy.)

What has Adler and Barnett so riled up about the marijuana lawsuit isn’t just the rank hypocrisy. It’s the precedent. Federalists may have lost their argument against Obamacare’s individual mandate at the Supreme Court, but they won the other half of their suit: the claim that the federal government can’t coerce states into participating in the law’s generous Medicaid expansion. (That’s why red states are still able to squabble over the program today.) Federalists have long strived to establish that Congress can’t dragoon states into adopting certain policies or programs. By pushing the Supreme Court to rule that the federal government can’t force states to expand Medicaid—even on Congress’s dime—federalists scored a huge win.

If Nebraska and Oklahoma succeed in their lawsuit against Colorado, that victory would effectively be reversed. The two states are arguing that federal law outlawing marijuana doesn’t just make the use and sale of marijuana federal crimes. Rather, they’re arguing that Congress intended to force state legislatures to criminalize marijuana, and to use their states’ police power to punish marijuana users. If this claim is true, then the law itself constitutes a federal infringement upon state autonomy far, far greater than any part of Obamacare. Bruning and Pruitt read Congress’s marijuana ban to coerce every single other state into enacting, maintaining, and vigorously enforcing its own marijuana ban.

If Nebraska and Oklahoma prevail on their claim—if they convince five justices that federal law forces states to ban weed, and that such a law is constitutional—states’ rights would take a brutal blow. A Congress that can force states to criminalize marijuana can also force states to do just about anything—like, say, expand Medicaid, or perform background checks on gun buyers, or regulate polluting waste. This expansion of federal power would be a catastrophe for federalists, a near-total reversal of their recent triumphs.

Speaking of guns and pollution: If Nebraska and Oklahoma actually get their case before the Supreme Court, regulating both would become a good deal easier. The two states claim they have standing—that is, the ability to sue Colorado in court—because Colorado’s newly legalized marijuana creates an interstate public nuisance. By permitting Coloradans to cultivate and sell marijuana, the other states argue, Colorado is introducing more marijuana into the interstate flow of drugs—and much of that marijuana winds up in Nebraska and Oklahoma, which still criminalize the substance. Thus, both states (and, presumably, a slew of others) have standing to sue Colorado, because they are suffering from the detrimental effects of Colorado’s marijuana “nuisance.”

This theory is a bold departure from traditional interstate nuisance lawsuits, which generally deal with some industrial practice (like smelting) that dumps noxious pollution into a neighboring state. Should the Supreme Court accept Nebraska and Oklahoma’s basic premise—that they’re being seriously harmed by Colorado’s marijuana—the floodgates will be busted open. Florida could sue West Virginia for releasing so much carbon into the atmosphere, arguing that West Virginia’s coal factories harm Florida by causing sea levels to rise. Oregon could sue Idaho over its loose gun laws, arguing that too many firearms constitute a nuisance that Idaho is obligated to control before those guns leave the state. The ultimate result would likely be a regulatory explosion, as more and more states were forced by lawsuits to control the spread of any “nuisance” before it crossed state lines.

This isn’t just a fun thought experiment. Nebraska and Oklahoma’s lawsuit could create chaos only if the Supreme Court weighed in. That might seem unlikely, given how weak the states’ claims appear. But involvement by the Supreme Court isn’t improbable—it’s inevitable. The Constitution gives the high court original and exclusive jurisdiction over suits between states, meaning the Supreme Court (and nobody else) must hear those cases.

Never before has a state initiated such a poorly reasoned and baldly political suit against its neighbor, so it’s difficult to guess what the justices will do. But they do have to do something; they can’t just swat the case away by denying review without comment. The court could dismiss the case at an early stage for a variety of reasons, holding, for example, that Nebraska and Oklahoma lack standing to sue. Or the court could actually rule on the merits of the case itself. Either way, the justices will have to weigh in eventually—presenting the risk, however distant, that the court will hand down an opinion that seriously curtails states’ rights.

Given these perils, why do Bruning and Pruitt feel compelled to bring this case in the first place? It turns out that though both attorneys general may wax sentimental about individual liberty, this definition of “liberty” is a rather cramped one. Bruning and Pruitt don’t claim that Coloradans are intentionally shipping large amounts of marijuana into their states for retail, or that dealers are setting up marijuana dispensaries just across the border, encouraging users to buy in bulk before returning. Instead, Bruning and Pruitt argue that Colorado’s legal marijuana market is making it easier for Nebraskans and Oklahomans to get their hands on weed. The states’ message to Colorado, in other words, is this: You must recriminalize marijuana because our citizens like it too much. Bruning and Pruitt heartily support an individual’s right not to buy health insurance. But when it comes to the use of a substance their states’ residents clearly enjoy, Bruning and Pruitt are oddly less enthusiastic about personal liberty.

If Adler and Barnett are truly shocked that these two conservative Republican attorneys general are fair-weather federalists, then they haven’t been paying attention. Pruitt joined an amicus brief in United States v. Windsor arguing that the Supreme Court should uphold Congress’s ban on same-sex marriage—even though the law encroached upon state sovereignty by limiting the states’ ability to protect a certain class of citizens. Bruning also supported the federal gay marriage ban, and is currently defending his state’s ban in court.

With marriage equality and health insurance, it’s easy for Bruning and Pruitt to stand up for their alleged federalist convictions. They already despise gay rights and universal health care, but attacking gay people and poor people is a bit gauche these days—so instead, both attorneys general can degrade and disadvantage their citizens under the ostensibly principled banner of states’ rights. When it comes to marijuana, however, Bruning and Pruitt’s true colors show. For these politicians, federalism was never anything more than opportunistic camouflage, a façade to conceal their discriminatory designs. Fair-weather federalism is too kind a term for what Bruning and Pruitt believe. Their vision of federalism was never anything more than a sham.