...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.
Jonathan H. Adler, as quoted by Mark Joseph Stern, "Federalist Rolling Papers"
You don't say. Adler sounds like his feelings are hurt. "States' rights" since it was dredged up by the Confederates in the 1800s has been a mask for not liking some federal policy.
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.
