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December 19, 2014

Could (and should) Colorado (or others) respond to attack on marijuana legalization by counter-attacking federal prohibition?

As detailed in this prior post, yesterday Nebraska and Oklahoma filed suit in the US Supreme Court seeking "a declaratory judgment stating that Sections 16(4) and (5) of Article XVIII of the Colorado Constitution [legalizing and regulating marijuana sales] are preempted by federal law, and therefore unconstitutional and unenforceable under the Supremacy Clause, Article VI of the U.S. Constitution."  I find this lawsuit fascinating for any number of reasons, and I am still trying to understand the procedures through which the Justices will consider this case and I am still thinking through some of the implications of the claims being made by Nebraska and Oklahoma.  And, as the title of this post suggests, I am wondering if this case might enable advocates for marijuana reform to bring complaints about federal marijuana prohibition directly to the Supreme Court. 

This thought occurred to me in part because the SCOTUS filing by Nebraska and Oklahoma relies so very heavily on the Controlled Substances Act (CSA) classifying marijuana as a Schedule I drug.  Here are passages from the filing to that end:

Congress has classified marijuana as a Schedule I drug.  21 U.S.C. § 812(c).  Schedule I drugs are those with a high potential for abuse, lack of any accepted medical use, and absence of any accepted safety for use in medically supervised treatment. § 812(b)(1)....

Because Congress explicitly found that marijuana has no currently accepted medical use in treatment in the United States and had categorized marijuana as a “Schedule I” drug, the CSA was enacted in order to eradicate the market for such drugs. As such, the United States argued [in Gonzales v. Raich a decade ago], “the CSA makes it unlawful to manufacture, distribute, dispense, or possess any Schedule I drug for any purpose, medical or otherwise, except as part of a strictly controlled research project.”

There has been lots of litigation in the past attacking in the DC Circuit the rationality of marijuana's placement on Schedule I in light of scientific evidence that marijuana has medical potentials. But all that litigation took place before a majority of states (now numbering well over 30) had formally legalized medical marijuana in some form. In light of all the recent state reform supportive of medical marijuana, I think new claims could (and perhaps should) now be made that it is entirely irrational (and thus unconstitutional) for Congress in the CSA to keep marijuana as a Schedule I drug.

Consequently, it seems to me one possible way (of many) for Colorado to defend its marijuana reform would be to assert a new full-throated attack on federal marijuana prohibition in the Supreme Court in light of the "new evidence" that the majority of US jurisdictions recognize in law the potential value of marijuana as medicine.

I doubt that Colorado will seek to attack Congress or the CSA is defense of its marijuana reform efforts. But perhaps others who in the past have legally attacked the rationality of marijuana's placement on Schedule I will see the special opportunity provided by this notable new lawsuit as an opportunity to take their arguments directly to the Supreme Court.

Recent related post:

Cross-posted at Marijuana Law, Policy and Reform

December 19, 2014 at 12:23 PM | Permalink


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It wouldn't be a smart litigation strategy to attack Raich. I think the Court's composition is still roughly the same and, if anything, has probably leaned more in favor of the case (at a minimum, it has more Justices in favor of cementing the prior cases as long as they aren't expanded upon). It was a 6-3 decision so even a change of one Justice wouldn't change anything. And they have far better avenues to pursue instead.

I could see it in an Amicus Brief. It'll add to the list of interesting things to read, but I doubt the Court will reach out to decide an issue the parties aren't asking for.

Posted by: Erik M | Dec 19, 2014 11:33:42 PM

I would broaden the attack, to demand a Daubert hearing on the federal prohibition, since it illogical to a point of insanity to allow cigarettes and alcohol and to prohibit marijuana. They should also seek clarification of the point, acts should be criminal if they harm people or property, with the burden on the prohibitionist.

Posted by: Supremacy Claus | Dec 20, 2014 12:51:45 AM

"It wouldn't be a smart litigation strategy to attack Raich."

No, it wouldn't. All three dissenters in Raich are gone from the court. There are four in the majority left--Ginsburg, Breyer, Scalia, and Kennedy. Of these four only Scalia has expressed reservations about Raich over the ensuing years. But even if Scalia is gone--by no means a certainty--that still means the other three only have to pick up two votes. Kagan seems like an easy pickup and Roberts seems like a possible loss. So that means the majority only needs to get either Alito or Sotomayor, which shouldn't be hard to do.

So if CO is going to win they are going to have to find some other strategy.

Posted by: Daniel | Dec 20, 2014 1:09:28 AM

Could CO argue the federal defense of the federal law is not funded?

Posted by: George | Dec 20, 2014 1:35:48 AM

One correction. Justice Thomas dissented in Raich. He is still there.

Raich held that the federal policy was rational and constitutional as a matter of federal commercial policy. This is rather likely still the opinion of the majority of the Court, including Kennedy, who showed his anti-drug bona fides in the school drug testing cases. If this was against a "marijuana mandate," perhaps you can get his vote.

But, that isn't what I took the OP to be suggesting:

"the rationality of marijuana's placement on Schedule I in light of scientific evidence that marijuana has medical potentials."

This is more of a statutory argument though it can be made with federalist implications tossed in. There is also the long shot "liberty" argument, but the 9CA didn't accept it once Raich was decided (leaving that as one last shot) and the USSC isn't likely either. Some state court might.

Posted by: Joe | Dec 20, 2014 11:51:04 AM

I think Colorado should tell both states and the Supreme Court to get fucked! while arresting the next 5,000 citizens of each state to cross their border.

Posted by: rodsmith | Dec 21, 2014 10:10:18 PM

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