Supreme Court

SCOTUS Turns Away Oklahoma and Nebraska's Challenge to Legal Pot in Colorado

Perturbed by smuggling, the two states had demanded an end to their neighbor's licensing and regulation of marijuana merchants.

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Jacob Sullum

Today the Supreme Court declined to hear Oklahoma and Nebraska's challenge to marijuana legalization in neighboring Colorado, which they say harms them through interstate smuggling. They argued that legalization in Colorado had "a direct and significant detrimental impact" on them by forcing "the diversion of limited manpower and resources to arrest and process suspected and convicted felons involved in the increased illegal marijuana trafficking or transportation." The Obama administration had urged the Court to reject Oklahoma and Nebraska's petition, saying their beef did not amount to a bona fide interstate controversy, since it grew out of lawbreaking that was neither directed nor approved by Colorado.

Oklahoma and Nebraska argued that Colorado's licensing, regulation, and taxation of marijuana growers and distributors violates the Controlled Substances Act (CSA) and therefore the Supremacy Clause, which makes federal statutes "the supreme law of the land." Colorado argued that it is acting well within the leeway that states enjoy under the Constitution and that its tolerance of heretofore criminal behavior does not create a "positive conflict" with federal law, as required for pre-emption under the CSA.

Justice Clarence Thomas, joined by Samuel Alito, dissented from the Court's decision not to hear the lawsuit. "The complaint, on its face, presents a 'controvers[y] between two or more States' that this Court alone has authority to adjudicate," he writes. "The plaintiff States have alleged significant harms to their sovereign interests caused by another State. Whatever the merit of the plaintiff States' claims, we should let this complaint proceed further rather than denying leave without so much as a word of explanation."

Marijuana Majority's Tom Angell welcomed the Court's decision, saying it avoids what could have been "a dark shadow on the marijuana ballot measures voters will consider this November" by allowing states to "move forward with implementing voter-approved legalization laws even if their neighbors don't like it." He adds that "if officials in Nebraska and Oklahoma are upset about how much time and resources their police are spending on marijuana cases, as they said in their briefs, they should join Colorado in replacing prohibition with legalization."

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  1. Huh, who broke the news here first? Who could it be, who could it be…?

      1. You’re just saying that because I’m black. BIGOT!

        1. You’re not really black, or you’d be over on HuffPo. Uncle Tom With Candy!

  2. its tolerance of heretofore criminal behavior does not create a “positive conflict” with federal law.

    Straight legalization would definitely not be a conflict.

    However, the more the state gets into regulating and controlling, there more of a conflict there can be.

  3. Oh c’mon Supreme Court, lets get some 4v4 ties going here!

  4. I agree with Thomas, the court should have heard the case. But then again, that would have given SCOTUS the chance to fuck up federalism some more. So maybe this is the best outcome.

  5. Justice Clarence Thomas, joined by Samuel Alito, dissented from the Court’s decision not to hear the lawsuit.

    “Please, please can we have a chance to squelch this drug menace?”

  6. Once again, Justice Thomas seems to be the only judge who actually understands the function of the Supreme Court. It is not just an appellate court designed to put itself at the center of attention on national issues. Even if that has become the sole form of judicial expertise on a court. It is appalling that the Court now seems to go along meekly with the executive branch’s unilateral determination of what is or isn’t an interstate dispute.

    1. Rendering no verdict is as good as rendering a “go fuck yourself” verdict. Why should they go through the full procedure if they think the case is too trivial? It’s like a summary judgement where no facts are in dispute.

      1. Politically it’s the same thing. Which is presumably the intention of both the feds and Reason – keep pot a political issue by ensuring nothing ever gets resolved. Makes for good political heat.

        Legally its not the same thing at all.

      2. Go through a long and complicated procedure to reach a predetermined outcome? Certainly never heard of a government body operating that way before…

  7. If Thomas is right, then where are the suits between (for example) Washington and Idaho over sales tax differentials?

    Plainly, high tax states suffer harm from the ready availability of less expensive goods in adjoining states.

    1. Because that ain’t the basis of a lawsuit. The basis of the NB/KS lawsuit is the supremacy clause of the constitution. There is no federal law that prohibits or says anything about ‘sales taxes’.

      Reality is that it appears, as usual, that libertarians are arbitrarily ideological about pot (and gay marriage, etc). Wanting federal law to be supreme when that suits the ideology. Wanting state law to be supreme when that suits the ideology. And totally failing to understand that arbitrary law – applied according to an ideology – undermines every possible good result that can come from that ideology.

      If pot law is that arbitrary; then why not contract law too?

      1. There is no federal law that prohibits or says anything about ‘sales taxes’.

        There’s nothing in the constitution giving the federal government any regulatory authority over intoxicants. The closest thing is the 21A, which allows states to regulate importation of alcohol.

        1. Then that is precisely where the Supreme Court could challenge the federal prohibition on pot. But it can only challenge that if it grants a hearing to determine the facts in this case.

          Failing to grant a hearing ensures that that case cannot be made even in an amicus curiae briefing. Which means the exec/legislative get to pretend that they are pro-pot and anti-pot at the same time.

  8. “the diversion of limited manpower and resources to arrest and process suspected and convicted felons involved in the increased illegal marijuana trafficking or transportation.”

    Uh-huh. You could instead go fuck yourselves nannies. How limited could it be if you’re using it for this?

    1. They need to arrest people for owning tazers too…

      1. And selling 32oz soda’s.

  9. Meanwhile the government’s positions is that growing wheat on your own land for your own consumption is interstate trade. Go figure.

    1. There’s no contradiction here. The administration would undoubtedly argue that the interstate shipments of marijuana are interstate commerce and subject to federal regulatory power. The administration’s point in this case was that the shipments here are being conducted by private individuals who are acting in violation of Colorado law, so there’s no basis for the States of Oklahoma and Nebraska to sue the State of Colorado in an original Supreme Court proceeding. That’s very clearly correct based on the existing precedents about when the Supreme Court has original jurisdiction over disputes between states.

      1. It’s up to the executive branch to interpret the constitution and write a judicial opinion to decide when the Supreme Court has original jurisdiction?

        1. It’s up to the executive branch to submit amicus briefs if it thinks a case has relevance to the activities of the federal government, dipshit.

  10. Damn federalists.

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  13. ok, here’s a question…

    How does this ruling effect Jerry Brown’s attempts to change firearm laws in Arizona and Nevada because of their proximity to Kalifornia?

    1. Probably has no effect at all.

      I note that the dissent is more at the Court’s assertion that it has discretion to hear, or not, cases arising under its original jurisdiction (like cases between states).

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  15. “the diversion of limited manpower and resources to arrest and process suspected and convicted felons involved in the increased illegal marijuana trafficking or transportation.”

    Then maybe they should stop doing that.

  16. OK, and NE, need to follow the lead of CA (many decades ago) and establish “agricultural inspection stations” on their borders with CO and inspect all vehicles leaving the Cannabis Paradise.

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