The Supreme Court is prodding the Justice Department to weigh in — for the first time under Attorney General Loretta Lynch — on the delicate legal issue of how to treat states that have legalized marijuana in the face of a federal ban.
It is a subject the Obama administration has handled gingerly, most recently in 2013, when the department, then led by Attorney General Eric Holder, said it wouldn’t challenge the states with legal marijuana as long as they established strict regulatory schemes.
Now neighboring states have brought the regulatory scheme of Colorado before the Supreme Court, and last week, the justices asked to hear the solicitor general’s views on the issue as they decide whether to take up the case.
Here’s where things could get interesting. Advocates on both sides have been eager to see whether Lynch will take a tougher stand on the issue than her predecessor.
“This is a great test for the Obama administration,” said Sam Kamin, a professor at the University of Denver Strum College of Law who helped draft Colorado’s regulations and is pleased with the administration’s position on the issue. “For Lynch, who is coming in the door, it will give us a sense of her impact on current policy.”
During her confirmation hearings, Lynch expressed strong views in favor of upholding the federal ban on marijuana, and she distanced herself from comments made by President Barack Obama who had suggested that the drug isn’t more dangerous than alcohol.
“I certainly don’t hold that view,” she said.
Foes of the legalization of marijuana don’t expect Lynch to do a 180 from the administration’s position, but they hope she will take a closer look at the issue and, at the very least, investigate the consequences of legalization in Colorado and other states.
“What we learned from the confirmation hearing is that she is uncomfortable with the idea of the marijuana industry being similar to legal drugs like alcohol and tobacco,” said Kevin Sabet, the co-founder of Project SAM (Smart Approaches to Marijuana).
Solicitor General Donald B. Verrilli has months to craft the administration’s response to the case before the court, and he could choose to devote the bulk of his brief arguing that the case is not properly before the court. Indeed, the states are asking the court to weigh in directly on the issue, instead of following the normal procedure of allowing the issue to percolate in the lower courts.
But legal experts say the very fact that the court chose to ask for the administration’s views, instead of dismissing the case out of hand, could suggest some level of interest.
“Although the justices don’t always listen to the solicitor general’s recommendation, the fact that they’ve even asked for it in this case is telling, all the more so because this kind of multistate dispute is typically one in which the federal government has little direct interest or involvement,” said Stephen I. Vladeck, a professor of law at American University Washington College of Law and a CNN analyst.
Vladeck says the theory of Nebraska and Oklahoma’s suit is that it creates an interstate nuisance for neighbor states to any individual state that legalizes marijuana.
“This kind of not-in-my-backyard legal argument, if successful, could be deployed against any other states seeking to follow Colorado’s example — and could therefore impose a massive obstacle to legalization at anything short of the federal level,” Vladeck said.
Attorneys general in Nebraska and Oklahoma claim their states have become a “gateway for the trafficking of illegal Colorado-sourced marijuana.” The neighbors are not targeting Colorado’s right to legalize marijuana, but instead, how it regulates the market for it. They say that Colorado’s scheme is in conflict with federal law and that law enforcement officers in their state have had to “bear the brunt of the problems caused by Colorado’s choice to circumvent federal law.”
Colorado counters that the court should not hear the challenge. State Attorney General Cynthia H. Coffman pointed to a memo released in 2013 under Eric Holder where the DOJ made clear its policy to defer to state-level efforts to regulate marijuana. In court papers, she said that Nebraska and Colorado’s principal complaint is with that federal policy rather than the laws of Colorado.
Indeed, in the 2013 memo, then-Deputy Attorney General James M. Cole wrote that the DOJ’s priorities included preventing the distribution of marijuana to minors and preventing the revenue of the sale of marijuana from going to criminal enterprises and gangs.
He also addressed states that have legalized the drug by saying,”Jurisdictions that have implemented systems that provide for regulation of marijuana activity must provide the necessary resources and demonstrate the willingness to enforce their laws and regulations in a manner that ensures they do not undermine federal enforcement priorities.”
Besides Colorado, marijuana is now legal for recreational use in Washington, Oregon, Alaska and the District of Columbia.
“The problem for Oklahoma and Nebraska is explaining to the court what they want at the end of the day,” Kamin said. “What they really want is for Colorado to criminalize and enforce laws against marijuana, and that is something they can’t force Colorado to do.”
But Nebraska and Oklahoma say they are being forced to sue Colorado for its regulatory scheme because the administration “seems unwilling” to do so.
Nine former Drug Enforcement Administrators have filed a brief supporting Nebraska and Oklahoma arguing that the executive branch’s “express abdication of its responsibility” to enforce federal drug laws should prompt the Supreme Court to step in and allow the lawsuit to go forward. They argue that the Supreme Court should agree to hear the case directly because the executive branch has “willfully ignored Colorado’s violation of federal law”
The court is not expected to act on the issue until next term.
