In 2012, when Colorado voters adopted Amendment 64 to the Colorado Constitution making the State the first in the nation to legalize and regulate the recreational use of marijuana, many envisioned a backlash of sorts from drug trafficking operations originating in Mexico and other countries. In fact, one of the most visible “border wars” is being waged by unlikely adversaries.
In December 2014, the States of Nebraska and Oklahoma filed a motion (“Nebraska/Oklahoma Motion”) with the United States Supreme Court (yes, the highest court in the land) seeking a judgment that portions of Amendment 64, namely, legalization of the cultivation, sale, possession, and use of marijuana, violates the federal Controlled Substances Act (“CSA”). As a general rule, a state law ostensibly covering the same subject matter as a federal law is preempted by, and thus must take a back seat to, that federal law. The cultivation, sale, possession, and use of marijuana is illegal under the CSA. As Nebraska and Oklahoma’s argument goes, the implementation of Amendment 64 flies in the face of the CSA. They contend Amendment 64 a) has increased the flow of marijuana from Colorado into their States, requiring them to expend substantial law enforcement, judicial system, and penal system resources, b) is harmful to the health and welfare of their citizens, c) increases the likelihood that third parties will commit criminal offenses in Nebraska and Oklahoma by bringing marijuana purchased from licensed entities in Colorado into those States, and d) presents a substantial obstacle to Congress’ objectives under the CSA. Ironically, Nebraska and Oklahoma have made it clear they do not contend that the CSA requires Colorado to criminalize marijuana, nor do they challenge the provisions of Colorado law allowing the sale and use of marijuana for medical purposes.
Naturally, Colorado opposes the Nebraska/Oklahoma Motion primarily on procedural grounds, essentially arguing that the case does not belong before the United States Supreme Court.
What does the federal government have to say about all of this? In 2013, after Amendment 64 was adopted, U.S. Deputy Attorney General James M. Cole issued a memorandum addressing federal enforcement of the CSA. Cole’s memorandum explained that while the U.S. Department of Justice will continue to prosecute serious marijuana-related crimes, it will not prosecute lesser but otherwise illegal marijuana-related activity under the CSA in states such as Colorado that have enacted laws authorizing such activity.
And in a direct response to the Nebraska/Oklahoma Motion, the Solicitor General, the third-highest ranking official in the U.S. Department of Justice and the person appointed to represent the federal government before the Supreme Court, was asked to chime in on the issue. In a Brief filed with the Supreme Court in December of last year, the Solicitor General asked the Court to deny the Nebraska/Oklahoma Motion for some of the same reasons argued by the State of Colorado and because he does not believe the legal concept of preemption applies in this instance.
The Supreme Court has the discretion not to hear the matter or hear the case and rule in the favor of Colorado or Nebraska and Oklahoma. Either way, the ramifications of the Supreme Court’s decision will likely have an enormous impact on the marijuana industry in Colorado and throughout the country. A ruling by the Supreme Court is expected as early as January, 2016.
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