Declining to Preempt: The New Nullification?

The refusal of the current administration to enforce selected federal laws in selected states has led to what may be an unprecedented legal question: what happens when a federal statute clearly preempts a state law, but the federal government refuses to enforce it? Colorado's neighbors are dealing with this question. The LA Times reports:

In December, the attorneys general of Nebraska and Oklahoma filed a lawsuit to stop what they say is a steady flow of marijuana across the Colorado state line. Kansas is considering joining as well.

The suit, filed directly to the U.S. Supreme Court, seeks to strike down Colorado's law legalizing recreational marijuana. It argues that Colorado's statute conflicts with federal drug laws, which consider marijuana illegal, even in small amounts.

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Colorado's marijuana law was approved by voters in 2012. It allows the sale and possession of up to an ounce of marijuana for recreational use for anyone 21 and over with a valid driver's license.

Shortly after the new law took effect, the U.S. Justice Department outlined its enforcement priorities, saying it would not interfere with Colorado's legal pot operations but would instead focus on, among other things, preventing marijuana from crossing state lines.

Colorado's marijuana law clearly conflicts with and is preempted by federal law which, if enforced, would negate it. But how does federal preemption work when the executive refuses to enforce federal laws? If Colorado had, for example, lowered its minimum wage (currently $8.23/hour) to even $6/hour, it would be superseded by the federal minimum wage (currently $7.25). It would be inconceivable for the federal government to look the other way.

Colorado's neighbors are not, as many have suggested, trying to impose their views outside of their borders in a hypocritical assault on federalism. Those views were already imposed on the entire country through The Controlled Substances Act and further upheld in Gonzales vs. Raich.

Federal laws are already responsible for banking problems faced by Colorado's new marijuana dealers. Financial institutions are more than aware of the litany of federal crimes they could be charged with, despite promises from the Department of Justice that they would probably not be prosecuted. From Forbes:

It is easy to see why banks remain wary of marijuana money. Notwithstanding the Justice Department’s memo, [University of Alabama law professor Julie Andersen Hill] notes, “Any bank or credit union providing services could face criminal prosecution at any time.” FinCEN’s guidance, even if it is interpreted as creating a safe harbor, “seems to set the bar for financial institution compliance quite high.” In any case, Hill writes, “the Department of Justice and FinCEN are only two of the many federal authorities with regulatory oversight of financial institutions.” Banks and credit unions also have to worry about how the Federal Reserve, the Federal Deposit Insurance Corporation, and the National Credit Union Administration will view their willingness to serve state-legal businesses that routinely commit federal felonies.

Congress could make an exception for Colorado, but it hasn't.
Legally, the federal felonies are still federal felonies.

As a very short civics lesson, note that the case goes directly to the Supreme Court:

Taking advantage of a provision of the Constitution covering cases “in which a State shall be Party,” Nebraska and Oklahoma filed their complaint in the Supreme Court of the United States. (Justia.com)

For various technical reasons (e.g., standing, non-commandeering) legal commentators are dismissive of the lawsuit. The Court may also find it difficult to formulate a remedy to inaction.

In a sense, the state of Colorado is participating in a criminal enterprise, but the federal government will not act against it. Colorado cannot be compelled to enforce federal law, but can it actively assist its citizens in breaking it?

For further discussion of non-enforcement, the Federalist Society had a good panel discussion in January on the topic: "The Executive Power to Not Enforce the Law."