Pot Matters: Supreme Court Declines to Review Colorado’s Legalization of Marijuana


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Colorado legalized marijuana, and neighboring states Nebraska and Oklahoma filed a motion with the Supreme Court to complain that this was a violation of federal law. On Monday, the Supreme Court, which has original jurisdiction over disputes between states, declined to accept the case without comment.

Well, almost without comment. 

Justice Thomas had some comments, which he expressed in a dissent to the court’s decision not to accept the case of Nebraska and Oklahoma v. Colorado. The court’s refusal applies to a legal matter “On Motion For Leave to File a Bill of Complaint." Justice Thomas was joined by Justice Alito in his dissent but clearly no one else on the court.

Justice Thomas acknowledged that the court has discretion to hear or not to hear cases for which it has original jurisdiction (cases that the Constitution requires go directly to the Supreme Court for adjudication) but conceded that “whatever the merit of the plaintiff States’ claims, we should let this complaint proceed further rather than denying leave without so much as a word of explanation.”

But that indeed is what the Supreme Court did. Their silence, though, speaks volumes.

In his dissent, Thomas laid out the basic argument made by Nebraska and Colorado. 

The federal Controlled Substances Act (CSA) prohibits the manufacture, distribution, dispensing and sale of marijuana in a “comprehensive regime to combat . . . traffic in illicit drugs.” Despite this, the State of Colorado passed Amendment 64 in 2012 to legalize the “recreational use of marijuana.” The amendment exempts certain uses of marijuana from state criminal prohibitions and provides for “licensing procedures for marijuana establishments.” The legislature is also required to “enact a tax for sales of marijuana from cultivation facilities to manufacturing facilities and retail stores.”

In December 2014, Nebraska and Oklahoma filed their motion with the Supreme Court. They allege that Amendment 64 violates federal law and increased drug trafficking in their territories, requiring them to spend more money to “combat the increased trafficking and transportation of marijuana.” These two states sought a judgment from the Supreme Court that the CSA “pre-empts certain of Amendment 64’s licensing, regulation, and taxation provisions and an injunction barring their implementation.”

In other words, Nebraska and Oklahoma wanted the Supreme Court to shut down the marijuana industry in Colorado as a violation of the Controlled Substances Act—and shut it down in a way that would shut down legalized marijuana commerce in any other state and prevent any other state from legalizing marijuana. 

And the Supreme Court refused to accept the case.

As Thomas explained, “The plaintiff States have alleged significant harms to their sovereign interests caused by another State.” 

The Constitution gives the Supreme Court authority to adjudicate “a controversy between two or more states.” But it is up to the court to decide if such controversy should be adjudicated. In this case, they decided that the alleged harms were not significant, or credible enough, for them to hear more about them in formal proceedings.

A month ago, Oklahoma’s Attorney General Doug Peterson wrote in the National Review that “Colorado’s Marijuana Regime is an Affront to Federalism and the Rule of Law."

Peterson argues that “Colorado’s regulatory scheme, coupled with federal inaction, effectively renders the CSA a nullity when it comes to marijuana.” Oklahoma and Nebraska argue that federal law is the supreme law of the land, a concept based on a provision of the supremacy clause of the Constitution. Consequently, Peterson argues that “Should the Court decline to hear our case, Big Marijuana and the states with which it cooperates will take it as a sign that federal drug laws do not matter and that the supremacy clause can be selectively applied.”

Interesting theory. 

However, Big Marijuana isn’t behind Amendment 64 in Colorado or other legalization initiatives. Voters are, including many marijuana consumers, as well as non-users. However, Peterson and his colleagues interpret state-level marijuana legalization initiatives, the Supreme Court, so far, appears to believe otherwise. That’s good news for democracy, and a green light for marijuana legalization at the state level to continue.

(Photo Courtesy of WIBW)