A second legal challenge is emerging in the federal court system to Colorado’s legalization of marijuana, with the latest lawsuit repeating a challenge on constitutional grounds.
On Thursday sheriffs in Colorado, Nebraska and Oklahoma filed suit in federal court in Denver to seek an invalidation of Colorado’s Amendment 64, which legalized recreational marijuana use in the state.
Back in December, the attorneys general of Nebraska and Oklahoma sued Colorado, petitioning the United States Supreme Court to take the case directly as a dispute among the three states.
Link: Read The December 2014 Lawsuit
The states said 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.”
Article VI of the Constitution famously states that, "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land."
As the Court considers the December 2014 lawsuit, the second challenge in federal court involves Larimer County, Colorado, Sheriff Justin Smith and fellow sheriffs from Kansas and Nebraska.
Sheriff Smith from Colorado claims that as a law enforcement official, he is caught between two constitutions.
"Our action today seeks to resolve a critical legal question — whether Colorado's Amendment 64 complies with the United States Constitution and therefore with the Colorado Constitution," Smith said.
The sheriffs from Nebraska and Kansas are also making an argument similar to that presented in December by the attorneys general in Nebraska and Oklahoma, that the Colorado’s legalized pot regime has increased law-enforcement responsibilities in neighboring states.
The specific debate over how the Supremacy Clause is related how marijuana legalization at a state level is linked to a federal statute, the Controlled Substances Act. Recreational and medical marijuana use is still illegal under the Controlled Substances Act and it is listed under Schedule 1 list of drugs, along with heroin and LSD.
But in August 2013, U.S. Attorney General Eric Holder issued enforcement guidelines to federal prosecutors and the Justice Department that effectively allowed legalization laws in Colorado and Washington to proceed, under certain conditions. Holder’s critics argued that the Justice Department’s reluctance to enforce the federal marijuana laws didn’t square with the Supremacy Clause’s intent.
At least prominent legal expert discounts the Supremacy Clause argument, as it was made in the December 2014 lawsuit. Georgetown University law professor Randy Barnett told the Los Angeles Times in February that the reasoning wasn’t compelling.
"This is a very weak claim. Their real beef is with the federal government for not enforcing the federal drug laws," Barnett said. "It is not up to the states to sue each other when the federal government is not enforcing the law."
However, the argument could be welcome to at least one pair of ears on the Supreme Court. In October 2014, Justice Antonin Scalia was asked about Colorado’s marijuana legalization at an event in Boulder, Colorado.
“I’m not going to respond to that because it would force me to have to recuse myself,” Scalia said in a joking manner, but he added, “the Constitution contains something called the Supremacy Clause.”
