Federal law criminalizes all aspects of the illegal drug trade, big and small, but the federal government can’t enforce all of that on its own, because it simply doesn’t have enough money or manpower. State and local law enforcement agencies are the ones with hundreds of thousands of cops on the streets. The DEA’s entire budget would fund perhaps six months of operations for the NYPD.
Federal drug enforcement, in other words, depends on state agencies for “the accomplishment and execution of the full purposes and objectives of Congress.” But states have no obligation to further the purposes and objectives of Congress. Therefore their refusal to do so—or even their adoption of laws that have contrary purposes and objectives—can’t be preempted by federal law.
The complaint filed by Nebraska and Oklahoma alleges that “In passing and enforcing Amendment 64, the State of Colorado has created a dangerous gap in the federal drug control system enacted by the United States Congress.” That’s clearly wrong. Amendment 64 may have exposed a dangerous gap in the federal drug-control system. But the gap was created by Congress, not Colorado. As the Justice Department memo explains, in most cases “the federal government has traditionally relied on states and local law enforcement agencies to address marijuana activity through enforcement of their own narcotics laws.” Congress in effect chose to depend on the states, by passing laws more sweeping than it can enforce on its own. States can’t be penalized for that under the doctrine of preemption.
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