Supreme Court of the United States

The Case

The states of Nebraska and Oklahoma sued their neighboring state of Colorado, December 18, in the U.S. Supreme Court, challenging Colorado’s Amendment 64 under Article 6 of the Constitution based on the federal preemption of Colorado’s “recreational marijuana” law.

The case is being presented to the Supreme Court. The court has not decided whether or not to hear the case. Nebraska and Oklahoma claim that Colorado’s voter approved amendment 64 which allowed for the regulation and sale of recreational marijuana violates the Constitution, specifically article six, clause two.

“This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.” -Article 6, U.S Constitution

Nebraska and Oklahoma claim that Colorado is failing to enforce Federal law, specifically the Controlled Substances Act of 1970. In addition the two states claim that Colorado marijuana is flooding into their states and they are having to waist law enforcement resources enforcing their own state prohibition laws.

However, the attorney General for Colorado John Suthers said the lawsuit was without merit. He stated “Because neighboring states have expressed concern about Colorado-grown marijuana coming into their states, we are not entirely surprised by this action,” he said. “However, it appears the plaintiffs’ primary grievance stems from nonenforcement of federal laws regarding marijuana, as opposed to choices made by the voters of Colorado.”

Interestingly enough, the Attorneys General of Nebraska and Oklahoma did not provide data regarding arrest for marijuana, or marijuana collected in the 2014.

The Issue

What are the issues at play in this case?

The lawsuit is interesting because it exposes the inherent contradictions that exist in our country’s federalism system. According to Article 6, U.S Constitution, federal law is supreme over all state laws. This means that no state can pass laws that are in direct opposition to federal law. However, this case alleges that Colorado is violating federal law by allowing the sale of a schedule 1 substance by ending its own prohibition of the substance.

This however is not as clear cut as it may seem. Nebraska and Oklahoma are suing because they are alleging Colorado is violating federal law, however this is a misguided view for a very simple reason. Colorado is not violating a federal law, Colorado is failing to enforce federal law. Case law in the Supreme Court is long and complex between states and the federal government, however, a simple rule of thumb for understanding these cases is such: States cannot render illegal, laws that the federal government declares legal. Colorado’s legalization of marijuana does not present this problem. It does not render illegal any act that federal law declares to be legal.

Another way to think about this case is as follows. Let us say that the federal government passed a law saying that the possession, sale, manufacturing, and distribution of couches was illegal. A very unfortunate situation for the living room, right? Well not so fast. If your state, let’s say Colorado said this is a crazy law and didn’t pass any state laws banning couches, the federal government could not force the state to ban couches. Supreme Court cases have decided that federal government cannot impede on a state’s sovereignty and make them ban couches. This is the situation Colorado finds itself in at the moment.

Federalism and Federal Discretion

The Executive Branch is constitutionally able to prioritize how federal laws are enforced. This does not mean that the Executive Branch can ignore laws. What this means is the executive branch can prioritize how it uses its resources to enforce federal law.

The federal government has already stated that it does not have the resources to police all violations of drug laws in the United States. On August 29th 2013 the Department of Justice released 8 guidelines that states would have to follow to avoid federal enforcement of marijuana laws. These guidelines are

  • prevent the distribution of marijuana to minors;
  • prevent revenue from the sale of marijuana from going to criminal enterprises, gangs and cartels;
  • prevent the diversion of marijuana from states where it is legal under state law in some form to other states;
  • prevent state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity;
  • prevent violence and the use of firearms in the cultivation and distribution of marijuana
  • prevent drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use;
  • prevent growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands;
  • prevent preventing marijuana possession or use on federal property.

Colorado is complying in good faith with all of these guidelines; however there is only so much the state can do. Colorado placed a 7 gram limit on single transactions for recreational customers. This limit was put into place to prevent people from easily trafficking the drug from Colorado to other states. The recreational stores themselves, aware of the scrutiny they are under, usually limit the amount of purchases you can make a day to further guard against trafficking.

Even with Colorado’s regulations to prevent trafficking, it occurs, as trafficking occurred before the state passed amendment 64, as trafficking occurred before the state established its medical system, as it occurred when prohibition was still in force.

Nebraska and Oklahoma are suing because they say that they have an influx of marijuana in their states, and yet they have not shown it is Colorado’s fault. These states already had a marijuana problem, just as every state in the union does. Marijuana is the third most popular drug in the United states behind number one: Alcohol, and number two: Nicotine. These states are suing because, for the first time, they have a target for litigation, as opposed to prior to Colorado’s legalization when the cartels controlled the trade.

Further, in a 1992 Supreme Court ruling in New York v. United States, Congress was found to lack the constitutional power to require states to enact laws. Such “commandeering” of state legislatures, the Court’s conservative majority has insisted, would contravene state sovereignty. Thus Colorado should not be the target of the suit, Colorado is under no obligation to enforce prohibition, as is within their rights, as a sovereign state to not do so. The true target of this lawsuit, as it stands now should be Federal government for under-enforcement.

However, before rejoicing at the thought of bringing the government to account for its perceived failure to uphold the law, let us keep in mind that the Federal government doesn’t have enough people, money, or political will to do something the majority of people don’t want anymore.

The Elephant in the Room

So what does this case mean for broader efforts to end prohibition? What does it mean for states that have already legalized and or set up their own medical programs?

To begin, it is too early to tell where the Supreme Court justices sit on the issue of marijuana. It is still unclear if the case will even be taken up by the court. Further, case law seems to be in favor of Colorado, and for the suit as written to have any merit, it would need to be filed against the Federal government.

What this case does show though is that there is a lot of power that resides in the states. This power is much closer to the people it affects then the power held by the federal government. If people want to see real change, and see an end to prohibition they must start from the bottom up, not the top down.

States that have established medical programs, industrial hemp programs, or full legalization should watch this case with some optimism, as the law is on their side. However, it does not mean that the struggle against prohibition can be won in the courts alone.

A cautionary tale is told in this story. While states have the power to change their own laws in state, they do not have the power to change federal laws. Even if the Federal government legalized and regulated the sale of marijuana today, (and what a nice way to start the New Year right?) States that had laws criminalizing the possession, sale, production, and distribution of marijuana would still have prohibition in place and citizens would still be subject to arrest and prosecution for violating state law.

We as activist must seek to end the prohibition on all levels of government, both state and federal, as neither one alone will solve the problem. Only by making our voices heard, and spreading information about marijuana’s benefits to the economy, to society, to industry, and to medicine can we see real change.