A ‘Hail Mary’ Pass By Our Political Opponents


For those of us in the business of changing public policy, sometimes we judge our progress on what we have accomplished; and other times we judge our effectiveness by the desperate acts of our opponents. The federal law suit filed late last week by the states of Nebraska and Oklahoma, seeking a declaratory judgment from the U.S. Supreme Court holding Colorado’s legalization provisions to be unconstitutional, clearly falls in the latter category.

This suit is more political theater than a serious legal challenge. These two conservative state attorneys general know they are losing this fight in the court of public opinion, so they are hoping the Supreme Court will step in and overturn the will of the voters. Desperate times lead to desperate tactics, and the plaintiffs in this action were clearly feeling desperate.

The suit, filed by Nebraska Attorney General Jon Bruning and Oklahoma Attorney General E. Scott Pruitt, alleges that marijuana is being diverted into their states from Colorado, causing plaintiffs to suffer “irreparable injury.” The Attorneys General contend in their suit: “Plaintiff States are suffering a direct and significant detrimental impact – namely the diversion of limited manpower and resources to arrest and process suspected and convicted felons involved in the increased illegal marijuana trafficking or transportation.”

Specifically, the two states are asking for “a declaratory judgment stating that Sections 16(4) and (5) of Article XVIII of the Colorado Constitution are preempted by federal law, and therefore unconstitutional and unenforceable under the Supremacy Clause, Article VI of the U.S. Constitution,” claiming the Colorado provisions requiring the state to license and regulate the newly legal recreational marijuana industry in Colorado creates a “positive conflict” with federal law, and are therefore null and void.

It is fascinating to see these conservative elected officials, who generally protest any attempt by the federal government to dictate state policy (arguing for states’ rights under the 9th and 10th Amendments to the Constitution) now pivoting to make the argument that the feds should impose their drug policy on a state that has elected to try an alternative to prohibition. It demonstrates their position is driven by their anti-marijuana ideology, rather than some consistent legal principle.

I suspect they are really attempting to create a record they could rely on later to argue the Justice Department (under a more conservative president and attorney general) should no longer give the Colorado legalization system (or others) a “safe haven.” One of the principal points in the 8-point DOJ memo to US Attorneys instructing them to leave the various state marijuana legalization plans free to experiment, was a requirement that the state legalization system make reasonable efforts to avoid marijuana being diverted from their state to others where it remains illegal. These two drug-war political hacks are trying to build a record they could use to their advantage in a future Republican administration, by exaggerating the troubles they are allegedly facing (no data has been offered to support this allegation) because of the legal marijuana in Colorado that is finding its way to their states.

There are a number of legal issues that will likely have to be resolved by the court before this case advances, including whether the complaining states have legal standing to bring this action, and whether the Colorado legalization system represents a “positive conflict” with federal law; or whether, as the high court previously found in the Raich cases, the federal law and a state legalization law (medical use in California) can co-exist.

The Result, If They Were Successful

Were these states to be successful in achieving the result they have requested, all they could possibly accomplish would be to block the provisions regulating the cultivation and sale of marijuana in Colorado; they have no legal basis or theory to argue that would require Colorado to re-adopt criminal penalties against the possession, use or cultivation of marijuana. So the result would be a system in Colorado under which these acts (possession, cultivation and use of marijuana) would be perfectly legal under state law, but without the regulations and controls (and taxes) that are currently in place. I doubt that is the result these drug-war zealots would want, but it is the best they can hope for legally.

The Obama Department of Justice had to consider these same options when the Colorado and Washington legalization laws were first adopted. They could have gone into federal district court and sought an injunction against the provisions licensing and regulating the cultivation and sale of marijuana, based on the same Supremacy Clause relied on by Nebraska and Oklahoma. We have no way to know precisely why they elected not to pursue this option; whether it was they felt they would not prevail legally, and did not wish to establish bad precedent; or whether they felt the result of prevailing (leaving in place a system of legal marijuana without any controls) was perhaps the worst outcome from their perspective.

But regardless of their private motivations, DOJ elected to stand back and allow the states to experiment with full legalization, so long as the state did so in a manner that minimized the diversion of marijuana to other states that had not legalized marijuana,  that minimized the use of marijuana by adolescents, and that kept the marijuana trade out of the hands of criminals. To date there is no indication that the DOJ views the Colorado system as violating these conditions.

Colorado Says Suit Is “Without Merit”; Will “Vigorously Defend” Against This Suit

Fortunately, the Colorado state officials, many of whom opposed the proposal when it was on the ballot in 2012, have now accepted the will of the voters and have seen the benefits, financially and otherwise, of regulation and control; and they are now strong supporters of the Colorado system. Colorado Attorney General John Suthers responded to the suit, stating: “[I]t appears the plaintiffs’ primary grievance stems from non-enforcement of federal laws regarding marijuana, as opposed to choices made by the voters of Colorado. We believe this suit is without merit and we will vigorously defend against it in the U.S. Supreme Court.”

And there will be help from several other interested parties, including NORML, who will be filing an amicus curiae brief in this matter, supporting Colorado’s position. Seldom has a case come before the Supreme Court that is of more significance to the legalization movement than this current attempt to derail full legalization. We will confront this political stunt head-on, and seek to eliminate this potential federal stumbling block once and for all.

About Author

Keith Stroup is a Washington, DC public-interest attorney who founded NORML in 1970. Stroup first smoked marijuana when he was a first-year law student in 1965 and has been a regular smoker and a cannabis activist ever since. In 1992 Stroup was the recipient of the Richard J. Dennis Drugpeace Award for Outstanding Achievement in the Field of Drug Policy Reform presented by the Drug Policy Foundation; in 2010 he received the Al Horn Award from the NORML Legal Committee for a lifetime of work advancing the cause of justice; and in 2012, Stroup received the High Times Lifetime Achievement Award. Keith currently serves as NORML's Legal Counsel and on NORML's Board of Directors. He resides in Falls Church, Virginia with his wife.


  1. Well reasoned article. The government cannot be “of two minds” ~ which bodes well for the community in the long run. Draconian rules & regulations & frivolous lawsuits are the remaining tactics by the prohibitionists.

  2. Its not white people screaming that these cop killings are race related. Its the black community and the rich that race baiting more than anything. The black community has fallen for the rich trick to get us to fight each other instead of them. If you cant see this then you are truly a fool. By crying its a race thing when its not is just pure stupidity but it also separates us as a people. Its not just blacks that are mindlessly getting killed by cops, but the blacks sure do want you thinking that. Well I wont get suckered into thinking this is a race thing I am by far too smart for the rich to manipulate me into thinking black people are my enemy. All poor working class need to ban together period and fight against our rich oppressors.

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