The states of Nebraska and Oklahoma have asked the United States Supreme Court to issue a declaratory judgment finding that Colorado’s laws regulating the state-licensed production and sale of marijuana to adults violates the US Constitution.
The suit, filed today by Nebraska Attorney General Jon Bruning and Oklahoma Attorney General E. Scott Pruitt, alleges that marijuana is being diverted into their states from Colorado, causing plaintiffs to suffer “irreparable injury.”
The Attorney Generals contend in their suit: “Plaintiff States are suffering a direct and significant detrimental impact – namely the diversion of limited manpower and resources to arrest and process suspected and convicted felons involved in the increased illegal marijuana trafficking or transportation.”
They are asking the Supreme Court to strike down Colorado’s law on the basis that it is “fundamentally at odds” with the federal Controlled Substances Act. They allege, “The diversion of marijuana from Colorado contradicts the clear Congressional intent, frustrates the federal interest in eliminating commercial transactions in the interstate controlled-substances market, and is particularly burdensome for neighboring states like Plaintiff States where law enforcement agencies and the citizens have endured the substantial expansion of Colorado marijuana.”
They seek “a declaratory judgment stating that Sections 16(4) and (5) of Article XVIII of the Colorado Constitution are preempted by federal law, and therefore unconstitutional and unenforceable under the Supremacy Clause, Article VI of the U.S. Constitution.” The US Attorneys are also asking the State of Colorado “to pay the Plaintiff States’ costs and expenses associated with this legal action, including attorneys’ fees.”
The suit does not ask for the Supreme Court to enjoin any other states’ laws regulating the production or dispensing of cannabis for either social or therapeutic purposes, though it is possible that the Court’s actions may have implications for those laws going forward. To date, four states have approved measures allowing for the regulated production and sale of cannabis to adults. Twenty-three states have approved measures allowing for the use of the plant for therapeutic purposes.
Colorado Attorney General John Suthers responded to the suit, stating: “[I]t appears the plaintiffs’ primary grievance stems from non-enforcement of federal laws regarding marijuana, as opposed to choices made by the voters of Colorado. We believe this suit is without merit and we will vigorously defend against it in the U.S. Supreme Court.”
Commenting on the suit, NORML Legal Counsel Keith Stroup said, “This suit is more political theater than a serious legal challenge. These two conservative state attorneys general know they are losing this fight in the court of public opinion, so they are hoping the Supreme Court will intercede.”
Stroup further noted that in recent days a majority of Congress approved language limiting the ability of the federal government to interfere in the implementation of state-sponsored marijuana regulatory schemes. He added: “The majority of Americans, including 55 percent of Colorado voters who endorsed this policy in 2012, support regulating cannabis in a manner similar to alcohol. The Attorney Generals pushing this lawsuit are not only out-of-step with existing public opinion and emerging political opinion, but they are also clearly on the wrong side of history.”
President Barack Obama signed spending legislation into law on Tuesday that includes provisions limiting the Justice Department’s ability to take criminal action against state-licensed individuals or operations that are acting are in full compliance with the medical marijuana laws of their states.
Specifically, an amendment sponsored by California Reps. Dana Rohrbacher and Sam Farr to the $1.1 trillion spending bill states, “None of the funds made available in this act to the Department of Justice may be used … to prevent … states … from implementing their own state laws that authorize the use, distribution, possession, or cultivation of medical marijuana.”
Said Farr following Congress’ passage of the legislation: “The federal government will finally respect the decisions made by the majority of states that passed medical marijuana laws. This is great day for common sense because now our federal dollars will be spent more wisely on prosecuting criminals and not sick patients.”
Similar language prohibiting the Justice Department from undermining state-sanctioned hemp cultivation programs was also included in the bill.
Also contained in the appropriations measure is a rider sponsored by Maryland Republican Andy Harris that seeks to limit DC officials’ ability to fully implement a November 2014 municipal initiative depenalizing the personal adult possession and cultivation of cannabis. At this time however, it remains unclear whether the enacted language is written in a manner that can actually do so. On Saturday, The Washington Post reported that DC Council Chairman Phil Mendelson “plans to ignore the provision” and that he will “send a bill implementing Initiative 71 to Congress in January for a 30-day review, during which federal lawmakers can veto it or let it stand.” Such a review is necessary before any DC initiative can become law.
Washington DC’s Initiative 71, which was approved by 70 percent of District voters, removes criminal and civil penalties regarding the adult possession of up to two ounces of cannabis and/or the cultivation of up to six plants.
The results of a new poll recently released by Third Way, a Washington, D.C. think tank, confirms the country remains largely divided over marijuana policy, a fact also made clear from a number of previous polls, including Gallup, Pew and others. This is, of course, a positive situation for those of us who favor legalization. Only 12 percent of the public supported legalization in 1970, when NORML began challenging prohibition, and it has been a long, slow slog to win their support.
And we can reasonably anticipate even higher levels of support in the near future, as the public become comfortable with the results of full legalization in the first few states to head in that direction. Legalization is no longer just a legal theory that people can speculate about; we finally have the opportunity to measure and analyze the results of actual legalization systems in place in several states (four and counting).
In a completely unexpected move by the Obama Administration, the US Department of Justice released a memo on October 28 indicating to Native American tribes that they can engage in cannabis commerce–cultivation, processing and retail sales–as long as they comport with the existing eight rules put forward in a previous August 2013 Obama Administration memo allowing states the autonomy to develop cannabis-based businesses in states where voters have passed binding ballot initiatives or elected policymakers have passed reform legislation.
- Distribution of marijuana to minors
- Revenue from the sale of marijuana from going to criminal enterprises, gangs and cartels
- Diversion of marijuana from states where it is legal to states where it remains illegal
- State-authorized marijuana activity being used as a cover for trafficking other illegal drugs or activity
- Violence or the use of firearms as part of cultivation and distribution of marijuana
- Drugged driving or the exacerbation of other negative health consequences associated with marijuana use
- Growing marijuana on public lands
- Marijuana possession or use on federal property
US News writes that “there are 326 federally recognized American Indian reservations, according to the Bureau of Indian Affairs. Many reservations are in states that don’t allow marijuana for medical or recreational use, such as Oklahoma, Utah and the Dakotas. Others are located near major East Coast cities and far from legal pot stores in the West.
“The tribes have the sovereign right to set the code on their reservations,” U.S. attorney for North Dakota Timothy Purdon, chairman of the Attorney General’s Subcommittee on Native American Issues, told the Times.
In a statement, the Department of Justice said U.S. attorneys will review tribal marijuana policies on a case-by-case basis and that prosecutors retain the right to enforce federal law.
“Each U.S. attorney will assess the threats and circumstances in his or her district, and consult closely with tribal partners and the Justice Department when significant issues or enforcement decisions arise in this area,” the statement says.
Read the DOJ memo allowing Native American tribes to regulate cannabis-related businesses here.
A detailed map of Native American tribes is found here.
As written, the rider seeks to restrict the District from utilizing federal or local funds to “to enact or carry out any law, rule, or regulation to legalize or otherwise reduce penalties associated with the possession, use, or distribution of any schedule I substance under the Controlled Substances Act (21 U.S.C. 801 et seq.) or any tetrahydrocannabinols derivative.” A summary of the provision posted on the House Appropriations Committee website acknowledges that the language is intended to prevent any funds from being used to “implement a referendum legalizing recreational marijuana use in the District.”
Washington DC’s Initiative 71 was approved by over 70 percent of District voters in November. The initiative seeks to legalize the adult possession of up to two ounces of marijuana and cultivation of three mature and three immature plants.
“This rider is an affront to the concept of democracy,” commented NORML Communications Director Erik Altieri, “Seven out of ten voters in Washington, DC cast their ballot in favor of ending prohibition and legalizing the adult possession and limited cultivation of marijuana, this attempt by members of Congress to flout the will of the people is a gross injustice to these voters and to the democratic system.”
The House will vote on the final version of the omnibus bill in the next couple days and then it must be approved by the Senate. This rider has no impact on the District’s current decriminalization or medicinal marijuana policies. NORML will keep you updated as the situation develops and what precisely this means for legalization in the nation’s capital.