By now most people know that Colorado is being sued by both Nebraska and Oklahoma over the legalization of marijuana—or, more accurately, the attorney generals are asking the Supreme Court to let them sue Colorado).
In the first major lawsuit brought against the state’s cannabis legalization policy, Colorado’s law to end marijuana prohibition (Amendment 64) is deemed a “full scale defiance” of the Controlled Substances Act (CSA). Naturally, Colorado claims the suit is “without merit.” So is the move a multi-state-driven buzzkill, or a legitimate issue with marijuana legalization?
First things first, it’d have to make it through the Supreme Court. Currently the issue is awaiting SCOTUS review, and it might not end well for them. As Hilary Bricken and Robert McVay wrote for the Canna Law Blog, it could still be too early for the Supreme Court to involve themselves with legalized weed:
The Supreme Court generally does not like hearing politically-charged cases “before their time.” The legalization experiment is too new to provide much evidence on anything, including which way the political winds will eventually blow. Why rule on this case now when you can wait beyond 2016 to see better both the impacts of legalization and more votes by the American people? A decision by the Supreme Court not to take this case will likely invigorate those seeking legalization and cause some states on the precipice of legalizing to tip towards legalization. It might even cause the good citizens of Nebraska and Oklahoma to rise up and question why their state governments choose to blame another state for their own shortcomings.
The blame mentioned is essentially that Nebraska and Oklahoma have said that Colorado’s legalized cannabis is a problem for their own law enforcement. Marijuana is still very much illegal in these two states, but now they are being forced to spend their time and money seizing drugs, making arrests and everything else that comes with enforcing strict marijuana prevention.
Their legal arguments come on the grounds that Colorado’s marijuana amendment is unconstitutional, since it violates Article VI of the Constitution, which holds that states cannot authorize violation of federal law, and as a violation of the CSA.
Ann-Marie Luciano mentions in a post on State AG Monitor that Section 903 of the CSA is of specific concern to Nebraska and Oklahoma, who believe the section indicates “a clear Congressional intent to preempt any state law that directly conflicts with the provisions of the CSA.” She continues:
As Amendment 64 seeks to permit the establishment of a commercial regulatory framework for marijuana, the AGs contend that it is the very type of state law preempted by the CSA. The AGs expressed concern that Colorado allowing the establishment of a commercial marijuana industry—as opposed to simply decriminalizing personal use of marijuana—will cause an increase in the amount of marijuana produced, and thus an increase in the amount that flows through informal channels, from Colorado into neighboring states where its use and sale remain illegal. The AGs argue that combating this increased flow will deplete their states’ fiscal resources, and strain their criminal justice systems.
Colorado’s AG John Suthers rebutted by saying that he would vigorously defend the lawsuit which he believed was “stems from non-enforcement of federal laws regarding marijuana, as opposed to choices made by the voters of Colorado.” So while everyone agrees that Colorado has an obligation to make sure that its cannabis experiment does as little harm as possible, not everyone agrees that Colorado is even at fault. As many writers have noted, marijuana was being trafficked before Colorado made it legal. And it will likely continue to be no matter how this lawsuit turns out.
It’s too early to tell which way the court will go, or even who will be on the bench if they decide to take up this issue. Ultimately, this decision could fall on the next president. They could be in charge of not only the make-up of the Supreme Court but whether or not the Justice Department will go after any state with legalized marijuana (or one of the 23 with some sort of medical marijuana). Clearly, Obama’s Justice Department has decided not to block recreational pot legislation, but as Randy Essex notes for the Grand Junction Free Press, a Republican president could change that–though it could come at the cost of losing Colorado, a swing state that “will be in play in deciding the winner” of the next couple presidential elections. But perhaps the most important take away comes from Ilya Solman at the Washington post, who notes that should Nebraska and Oklahoma be successful, the real losers will be advocates of constitutional limits on federal power:
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.
Going back to Hilary Bricken and Robert McVay on the Canna Law Blog, they echoed this very point:
We are troubled by this lawsuit because we are of the strong view that the votes of people in one state should not be cancelled by the mores of another state. We also support the federalist ideal of allowing individual states to experiment, with the other states free to decide for themselves whether to do likewise or not. There is something inherently wrong with Nebraska or Oklahoma seeking to tell Colorado what to do. How would Nebraska’s citizens feel about New York State suing Nebraska in an effort to dictate how Nebraska runs its corn program? After all, much Nebraska corn goes to New York.
In an age where every issue is political, the legality of marijuana is quite an interesting one. Conservatives, for the most part, are largely opposed, but this view runs in stark contrast to their traditional ideology.