Nebraska and Oklahoma argue that Colorado’s decision to legalize marijuana under state law, in the face of continuing federal prohibition, harms neighboring states because it facilitates the flow of marijuana across their borders and may increase crime there. Liberal states with strict gun control laws raise exactly the same complaints about the flow of guns from neighboring conservative states with relatively permissive firearms laws. If Nebraska and Oklahoma can force Colorado to criminalize marijuana under state law because the federal government has done so under federal law, then Maryland can force Virginia to ban any gun sales that are restricted under federal law. Liberals have, in fact, advocated the enactment of stronger federal gun control laws for years. The same goes for conservative states that have less restrictive labor regulations or environmental regulations than neighboring states do.
In other situations, including the Obamacare case, Nebraska and Oklahoma have fought to strengthen enforcement of constitutional limits on federal power. But if their interest in that cause is genuine rather than a case of “fair weather federalism,” they should be working to limit and eventually overrule Gonzales v. Raich instead of expanding its reach.
Like most other federalism scholars, I highly doubt that Nebraska and Oklahoma will win their case. But if they do somehow prevail, the biggest losers will be advocates of constitutional limits on federal power.