On Friday March 4th 2016, the Supreme Court of the United States will discuss and review Nebraska and Oklahoma v. Colorado, a case that could potentially reverse Colorado’s progressive marijuana legislation.
Bordering states Nebraska and Oklahoma filed the lawsuit against Colorado in December 2014, twelve months after the state enacted a legal retail cannabis market. Nebraska Attorney General, Jon Bruning claims that Colorado officials are not doing enough to ensure the legal cannabis remains in-state. Containing cannabis products is one of the stipulations listed in the Cole Memorandum, the legalization agreement between states and the federal government.
“This contraband has been heavily trafficked into our state. While Colorado reaps millions from the sale of pot, Nebraska taxpayers have to bear the cost.”
The stakes are high as the ruling could affect all marijuana legislation at the state level.
“It has the potential to be a big deal,” said Sam Kamin, marijuana law professor at the University of Denver.
“Conceivably it could mean that the court finds that Colorado’s and every other state’s regulations of marijuana [are] preempted by federal law and have to be annulled or repealed, or can’t be enforced.”
The plaintiff’s are hoping the will recognize the power of the Supremacy Clause, which gives power to federal laws over those of individual states.
By invoking the Supremacy Clause, Republican supporters for the plaintiffs would be contradicting their long-held values for state’s rights. It could open the door for more legal conflict between states outside of the issue of marijuana as well.
The death of Justice Antonin Scalia has affected the case’s schedule as well as its potential outcome. Justice Scalia was predicted to be in support of the plaintiffs based on previous statements he made in response to questions about marijuana reform. In that instance, which was during a visit to Colorado, he used the Supremacy Clause to support continued marijuana prohibition.
Most cases seen by the Supreme Court make a journey though the lower courts, which can lead to an expedited decision by the Justices. Because this is a case between two states, it bypasses this process and goes straight to the Supreme Court. They will need to appoint a “special master” to perform much of the fact-finding and investigation, which could take years.
The Obama Administration has shown its support through the US Solicitor General by asking the Supreme Court to reject the case outright. States with marijuana laws, including Washington, Oregon and California have also shown support for Colorado.
The Solicitor General already filed a brief with the Supreme Court in December, asking that the court not review the case at all because it, “is not an appropriate case for the exercise of this Court’s original jurisdiction.”
While the Obama Administration has made it clear that it will not pursue marijuana reform during their final year in office, he previously made promises to stay out of state legislation, going so far as suggesting Congress could change federal law if enough states legalize marijuana. Despite these statements, federal agencies under his purview are still aggressively policing marijuana.