Supreme Court Not High on States’ Challenge of Colorado Marijuana Law

On March 21, the US Supreme Court rejected a challenge by Nebraska and Oklahoma against a Colorado law that allows for the recreational use of marijuana.

The two states brought the suit against Colorado’s legalization of cannabis, arguing it directly harms the two states, causing detrimental economic impacts associated with increased costs for the apprehension, incarceration and prosecution of suspected and convicted felons. The Court’s 6-2 decision is the latest in a string of losses for challengers to Colorado's first-of-its-kind marijuana law.

In their motion for leave to file a compliant, the Nebraska and Oklahoma Attorneys General argued that Colorado’s recreational use law directly conflicts with federal law and results in marijuana being smuggled across their borders. They further argued that, as a dispute between states,  the Court has original jurisdiction to hear and resolve the matter. US Solicitor General Donald Verrilli, Jr., rebuffed that argument in an amicus brief that asked the Court to not grant the states’ motion. The administration argued that Nebraska and Oklahoma did not sufficiently establish that Colorado had inflicted direct injury to citizens of those states to warrant the exercise of original jurisdiction. The Court, providing no explanation, denied Nebraska and Oklahoma’s motion, with the ruling falling two votes short of the four needed to allow the case to move forward. Justices Clarence Thomas and Samuel Alito provided the two dissenting votes.

This case is just one front in a protracted battle between states and the federal government over the legality of marijuana use that will continue to play out in the years ahead. Under the Controlled Substances Act, it is a federal crime for any person to knowingly or intentionally manufacture, distribute, dispense or possess marijuana. Following the passage of state ballot initiatives in Colorado and Washington in 2013 that legalized recreational marijuana, the US Department of Justice issued a policy memo guiding federal investigative and prosecutorial discretion, essentially deferring enforcement of marijuana laws to state and local authorities. With upcoming elections at the national and state levels, the application and interpretation of differing, and often conflicting, marijuana laws remains in the balance.

Currently Alaska, Colorado, Oregon, and Washington permit the recreational use of marijuana and approximately 26 states allow for the use of medical marijuana in some form. Of note, BIS Research, a global market research company, recently published a report that predicts the US marijuana industry will grow to approximately $21 billion annually over the next four years.


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