WASHINGTON, DC. 4 May, 2015. Move over Hatfields and McCoys. Colorado’s pot-smoking, cash-flaunting, 420-hootenanny habits are getting in the face of their neighbors, namely Nebraska and Oklahoma. Instead of sending a posse across state lines to administer some whoop-ass, the two states have taken their grievances to the United States Supreme Court.
Their claim is that the legalization of cannabis in Colorado is causing irreparable harm in their own states, encouraging interstate trafficking of pot legally grown in Colorado, and endangering children. They want the justices to rule that Colorado’s 2012 ballot decriminalizing marijuana is preempted by federal drug laws and is therefore unconstitutional. Since marijuana continues to be listed as a Schedule 1 narcotic under the federal Controlled Substances Act, Oklahoma and Nebraska are demanding that the federal government faithfully enforce the law and stop looking the other way while states decriminalize and regulate recreational use of the drug.
While the justices have not agreed to ride shotgun just yet, there appears to be a stirring of interest in the case. On Monday, the justices asked the Obama administration, via the US Solicitor General, to provide a brief expressing its view of the issue. Even though cannabis is still illegal under federal law, the Obama administration has allowed states to implement marijuana legalization laws. Some analysts feel the cannabis dispute falls within the same broad concept of “prosecutorial discretion” cited by President Obama in his controversial executive action over immigration status. That effort was halted by a federal judge’s injunction and is pending before a federal appeals court.
In his motion to the court on behalf of both states, Nebraska Assistant Attorney General Ryan Post wrote: “In passing and enforcing Amendment 64, the state of Colorado has created a dangerous gap in the federal drug control system enacted by the Unites States Congress. Marijuana flows from this gap into neighboring states, undermining Plaintiff States’ own marijuana bans, draining their treasuries, and placing stress on their criminal justice systems.”
Colorado says it has the right to implement its own cannabis regulations within its own borders, and argues that legalization is designed to drain demand away from a multi-billion-dollar black market into a licensed, closely monitored retail system. Instead of criminals reaping the entire value of annual cannabis sales, legitimate business and state and local government are getting a big slice of the pie, and they want the rest of it, too. In a Fox Business interview, Gov. Hickenlooper recently tipped a possible reduction in taxes to crush the remain black market.
“No one contends that Colorado law trumps the federal marijuana ban or immunizes anyone from federal prosecution,” Colorado Solicitor General Frederick Yarger said in his brief. “Instead, the question here is whether a state that chooses to legalize marijuana is then prohibited from regulating the market for it.” Yarger said that Colorado’s approach has been premised on signals from the Obama administration that a don’t-ask-don’t-tell policy applied, in that the federal government would not enforce marijuana laws in states seeking to decriminalize the drug.
“The landscape changed radically when the current presidential administration began implementing an express policy of marijuana non-enforcement,” Yarger said. The policy shift first became apparent in 2009 when a Justice Department memo said that although marijuana remains an illegal drug under the CSA, federal resources should not be directed toward prosecuting individuals using medical marijuana in states where it is legal. In the wake of the memo, Colorado saw its role of medical marijuana patients in the state expend from 5,000 to 116,000 in a year. In December 2014, Congress endorsed non-enforcement when it barred the use of federal funds for enforcement efforts aimed at preventing states from implementing laws that legalize medical marijuana.
“It is Colorado’s sovereignty that is at stake here,” Yarder said. “Nebraska and Oklahoma filed this case in an attempt to reach across their borders and selectively invalidate state laws with which they disagree.” He wrote that, “A state does not invade the sovereign rights of another state, by making a policy decision that parts ways with its neighbors. Here, Colorado does not intend, nor has it attempted, to reach across the border to invade the Plaintiff States’ sovereign rights. Colorado’s marijuana laws stop at the state border.”
Yarger also noted that it is a violation of both federal and Colorado law to transport Colorado marijuana to a different state. The attorneys general of Washington State and Oregon have weighed in on Colorado’s side. Washington solicitor general Noah Purcell, wrote: “This court has never used its original jurisdiction to resolve such policy disagreements between states, and it should not start now. States can serve as effective laboratories of democracy only if they take differing approaches to problems.”
The matter could be solved without protracted Supreme Court deliberations if Congress makes the decision to re-classify cannabis, removing it from Schedule I of the Controlled Substances Act.