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Feds want states’ marijuana lawsuit snuffed out

December 18, 2015 by NCC Staff


The U.S. attorney general wants the Supreme Court to deny a request from Nebraska and Oklahoma to limit Colorado’s legalized commercial marijuana business.


Marijuana1In May, the Court asked the Solicitor General’s office for its opinion in a lawsuit called Nebraska and Oklahoma v. Colorado about the commercial sales of marijuana for recreational use in Colorado.


The lawsuit was brought by Nebraska and Oklahoma last December, when their attorneys general asked the Court to rule on the legality of the Colorado’s legalized marijuana law, in an original jurisdiction case.


The two states contend the Supreme Court was the only venue where they could seek relief under the Constitution’s Supremacy Clause, arguing that “the federal government has preeminent authority to regulate interstate and foreign commerce, including commerce involving legal and illegal trafficking in drugs such as marijuana.”


Nebraska and Oklahoma aren’t asking that Colorado’s now-legal personal marijuana use stop or to go back to its previous laws that prosecuted marijuana use as a crime in the state. Instead, the two states wants Colorado’s plan disallowed by the Supreme Court that allows for commercial growing and distribution of marijuana with the state.


This Wednesday, Solicitor General Donald Verrilli filed the Justice Department’s legal opinion, which claims the lawsuit from the two states is problematic on several fronts. For example, Verrilli rejects the two states’ claims that the legalized sale of marijuana in Colorado “increases the likelihood that third parties will commit criminal offenses in Nebraska and Oklahoma” because of increased ability to bring the drug into the two states.


He also believes allowing the lawsuit to proceed would allow states to force other states to conform to federal laws that they interpret them as not being enforced correctly. “Such a broad invitation to invoke this Court’s original jurisdiction to resolve myriad preemption questions would not comport with the Court’s traditional insistence that original jurisdiction be exercised only ‘sparingly,’” Verrilli said.


Four states and the District of Columbia have passed laws to make recreational pot use legal under certain circumstances. And 23 states and the federal district have legalized marijuana for medical use.


Colorado’s law was approved in a voter referendum in November 2012.


However, recreational and medical marijuana use is still illegal nationally under the Controlled Substances Act and it is listed under the Schedule 1 list of drugs, along with heroin and LSD.


The conflict between state laws that allow limited marijuana use and the federal law that bars it, in theory, falls somewhere in the domain of the Constitution’s Supremacy Clause.


The Court typically takes its time with original jurisdiction cases and at least four Justices will need to vote to accept the case for arguments, once the Solicitor General’s opinion is filed.


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