Will Colorado’s Recreational Marijuana Law Disappear?

Colorado’s Amendment 64 was passed as a ballot initiative in Colorado in 2012. The voters in Colorado approved the Amendment, which amended Article XVIII of the Colorado Constitution. This constitutional amendment allowed for the legalization of recreational marijuana.  Colorado is one of four states and the District of Columbia that allow for legal, recreational use.  Nebraska and Oklahoma (“the two States”) who do not have either medical or recreational marijuana laws border the State of Colorado.

US Supreme Court to decide if it will accept the lawsuit

United Supreme Court to Get Involved with Recreational Marijuana?

It is anticipated that in the month of January 2016, the United States Supreme Court will decide whether to allow the two States to sue the State of Colorado over its marijuana laws. The two States filed a Motion to File a Complaint with the high Court claiming that they have a right to bring this action directly to the Supreme Court.  The Supremes Court has original and exclusive jurisdiction over cases and controversies between two or more states. See U.S. Const. art. III, § 2, cl. 2; 28 U.S.C. § 1251(a).

In Mississippi v. Louisiana, 506 U.S. 73, 77 (1992). The Supreme Court stated two factors that guide the Court’s inquiry into whether a motion for leave to file should be granted. The first is “the nature of the interest of the complaining State, focusing on the seriousness and dignity of the claim.” The second is whether there exists “an alternative forum in which the issue tendered can be resolved.”  The two States point to several instances where the Court took cases between the States without any intervening lower courts when a nuisance is alleged as it is in this case.

Nebraska and Oklahoma Suing Colorado

The two Sates argue in their briefs that this action is akin to the Court exercising original jurisdiction over suits between states involving cross-border nuisances. E.g., Vermont v. New York, 402 U.S. 940 (1971) (accused New York of polluting Lake Champlain); New Jersey v. City of New York, 283 U.S. 473 (1931) (sought to enjoin off-shore garbage dumping by New York that caused trash to wash ashore on New Jersey beaches); New York v. New Jersey, 249 U.S. 202 (1919) (sought to enjoin New Jersey’s discharge of sewage into New York Harbor); Missouri v. Illinois, 180 U.S. 208 (1901) (alleging Illinois’ discharge of untreated sewage into Mississippi River polluted drinking water in Missouri).

Nebraska and Oklahoma are suing Colorado

If the Court accepts the controversy, it will address the merits of the case and decide whether to issue declaratory relief negating Colorado’s Amendment 64.  The two states offer several theories for their action. They invoke the supremacy clause, the interstate commerce clause, and even international law (Treaties and Conventions).

The two States claim that the Colorado law is preempted by federal law that makes marijuana illegal, and therefore unconstitutional and unenforceable under the Supremacy Clause, Article VI of the U.S. Constitution. They point to the fact marijuana was classified by Congress as a Schedule I drug. 21 U.S.C. § 812(c) and that, as such, Colorado may not establish its own policy that is directly contrary to federal policy against trafficking in controlled substances.  They further assert that Colorado cannot establish a state-sanctioned system for possession, production, licensing, and distribution of drugs in a manner which interferes with the federal drug laws prohibiting possession, use, manufacture, cultivation, and/or distribution of certain drugs, including marijuana. See: 21 U.S.C. § 903.

The two States also argue that Amendment 64 and its resultant statutes and regulations are devoid of safeguards to ensure marijuana cultivated and sold in Colorado is not trafficked to other states, including Plaintiff States. The Constitution affords the federal government the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” U.S. Const., Art. I § 8, cl. 3. The Constitution’s “Commerce Clause” further affords the federal government the power “[t]o make all Laws which shall be necessary and proper for carrying into Execution” its authority to “regulate Commerce.” U.S. Const., Art. I § 8, cl. 18.

A Violation of International Treaties?

Is Amendment 64 a violation of International Treaties?

Lastly they argue that Amendment 64 violates a number of international treaties to which the United States is a party: (1) the Single Convention on Narcotic Drugs of 1961, as amended by the 1972 Protocol (“Single Convention”); (2) the Convention on Psychotropic Substances of 1971 (“1971 Convention”); and (3) the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988 (“1988 Convention”).

The two states want the declaratory action because Colorado’s production, manufacture and cultivation of marijuana is having a profound financial affect upon the two bordering states. “Nebraska and Oklahoma essentially contend that Colorado’s authorization of licensed intrastate marijuana production and distribution 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,” says United States Solicitor General  Donald Verrilli Jr.

Colorado’s Recreational Marijuana Negatively Impacting Other States?

The two States allege Colorado’s law is affecting them financially by increasing costs for the apprehension, incarceration, and prosecution of suspected and convicted felons; the costs associated with the arrest, impoundment of vehicles, seizure of contraband and suspected contraband; transfer of prisoners; and, appearance of law enforcement personnel in court for pre-trial proceedings, trial, and/or sentencing (including the overtime costs associated with appearing in court and/or obtaining replacement law-enforcement personnel for the court-appearing officers). (See Opening Briefs for the two Sates).

Colorado argues that they are not responsible and have not directed or authorized anyone to transport marijuana across state lines. Further, the Obama administration is urging the Supreme Court to reject the lawsuit and the Justice Department’s top courtroom lawyer said in a brief filed on December 16, 2015 that the interstate dispute does not belong at the high court.

Should the United Sates Supreme Court take the case? If so, should they declare Colorado’s marijuana law unconstitutional? Is this beginning of the end? What do you think?