The Supreme Court stays out of it

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On Monday, the United States Supreme Court declined to hear the case brought by Nebraska and Oklahoma against Colorado over its marijuana legalization law.

In 2012, Colorado voters legalized the possession of small amounts of marijuana and also authorized the creation of state-administered rules that would allow stores to sell marijuana to anyone over the age of 21 years old.

In their argument, Oklahoma and Nebraska claimed the Colorado law created an increased law enforcement burden in neighboring states. The suit, filed by Nebraska Attorney General John Bruning and Oklahoma Attorney General Scott Pruitt, claims that federal marijuana prohibition preempts the law that Colorado voters decisively adopted.

The decision to dismiss is in line with a brief issued to the Supreme Court earlier this year from U.S. Solicitor General Donald Verrilli Jr. stating, “Entertaining the type of dispute at issue here — essentially that one State’s laws make it more likely that third parties will violate federal and state law in another State — would represent a substantial and unwarranted expansion of this Court’s original jurisdiction.”

The court turned the case away in an unsigned opinion, but Justices Clarence Thomas and Samuel Alito dissented. Writing for them both, Thomas says that the court should have taken the case because “the plaintiff states have made a reasonable case” and upholding that marijuana remains illegal under federal law.

“The complaint, on its face, presents a ‘controvers[y] between two or more States’ that this Court alone has authority to adjudicate,” Thomas continues. “The plaintiff States have alleged significant harms to their sovereign interests caused by another State. 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.”

Advocates for decriminalization from the Drug Policy Alliance, an organization that believes the war on drugs is a failure and drug problems should be treated as a health issue and not a crime, released a statement in support of the dismissal of the case.

“The Supreme Court’s rejection of this misguided effort to undo cautious and effective state-level regulation of marijuana is excellent news for the many other states looking to adopt similar reforms in 2016 and beyond. Other states are looking to what Colorado has accomplished — the drops in racially disparate arrests, the criminal justice dollars saved, and the tax revenue raised — and want to adopt similar marijuana law reforms.”

So, for now, the state’s industry is safe. Governor Hickenlooper, who publically disagrees with Colorado voters’ decision to legalize marijuana, nonetheless affirms their right to do so.

“Since Colorado voters overwhelming passed legal recreational marijuana in 2012, we have worked diligently to put in place a regulatory framework — the first in the world — that allows this new industry to operate while protecting public health and safety,” Hickenlooper writes in a recent release. “With [Monday’s] Supreme Court ruling, the work we’ve completed so far remains intact.”

Since implementing legalization in 2012, Colorado’s marijuana enforcement priority has been to push all illicit activity into legal and regulated spaces so that the industry, the public and regulators can understand and navigate cannabis legally and safely. This strategy was prompted from a 2013 memo issued by then Deputy Attorney General James M. Cole that outlined key priorities in federal enforcement in states where marijuana had been legalized. Included among those priorities was the prevention of diversion of marijuana from states where it is legal to other states where it is not.

While the Supreme Court has decided not to hear  the case, Nebraska and Oklahoma can still pursue it through other legal channels. Already the plaintiffs and their supporters are exploring alternative options.

In a statement from the office of Nebraska’s Attorney General, Doug Peterson writes that his office “is working with its partners in Oklahoma and other states to determine the best next steps toward vindicating the rule of law.”

Although marijuana is federally illegal, listed on the Controlled Substances Act as a Schedule I substance, this does not necessarily preclude individual states from allowing for the cultivation, possession or sale of marijuana. Four states and the District of Columbia have such laws and amendments in place and 23 states and the District of Columbia have laws legalizing medical marijuana.

As both the recreational and medical marijuana industries grow, the economic stakes involved in legal decisions at the federal level heighten. Estimates from ArcView Market Research projects that the legal cannabis industry will bring in over $21 billion dollars by 2020, putting investment dollars, small businesses, jobs and government tax revenue on the line in any future legal decisions. 

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