This past Wednesday, the United States Court of Appeals for the Tenth Circuit rejected Nebraska and Oklahoma’s claim that Colorado’s marijuana laws violate federal statutes. Colorado’s Amendment 64, passed on November 6th 2012, repealed state statutes that prohibit the recreational use of marijuana. Their arguments to the appeals court echoed the same arguments they made to the Supreme Court last year. In both cases, they contended that the passage of Amendment 64 resulted in an upward trend of drug-related crime in their states.
Oklahoma and Nebraska argued that their dispute was with Governor John Hickenlooper, claiming that it is within the capacity of the court to demand the governor to stop enforcing Amendment 64, which they contest is “preempted by the CSA [Controlled Substance Act].” This is a claim disputed by many legal experts.
Legal Experts Weigh In
In a lawsuit filed in 2014, the states offered this statement: “the State of Colorado has created a dangerous gap in the federal drug control system enacted by the United States Congress. Marijuana flows from this gap into neighboring states, undermining Plaintiff States’ own marijuana bans.” But according to legal professor, Sam Kamin, Amendment 64 is not preempted by the CSA because the statute doesn’t compel states to enforce those laws. And Randy Barrett, an attorney who has dealt with these questions in the Supreme Court, has suggested that “Congress has no power to compel states to prohibit the cultivation, possession and transfer of marijuana.”
The federal court didn’t agree that the states’ dispute was solely with the governor. Instead, the court argued, the issue was between states. In Circuit Judge Mary Beck Briscoe’s opinion for the three judge panel, she cited 28 U.S.C. § 1251(a), a federal statute that “forbids us from exercising jurisdiction over controversies between the States.” The court suggested that the petitioners take their case to the Supreme Court who already declined to hear the case without comment. As the appellate panel observed, “the states pointed to no statute, rule, or precedent preventing them from refiling their original complaint in the Supreme Court.”
In another related decision, the court ruled favorably for property owners who claimed that “noxious smells” emanating from an illegally-run commercial marijuana farm were causing the value of their land to diminish. A district court dismissed the claims, but the Tenth Circuit held that the allegations were “plausible.” However, the court wanted to be clear that “We are not suggesting that every private citizen purportedly aggrieved by another person, a group, or an enterprise that is manufacturing, distributing, selling, or using marijuana may pursue a claim under RICO”
The chances are slim that the Supreme Court will have a change of heart. Justices Clarence Thomas and Samuel Alito Jr. were the only ones who wanted to hear the case – Justice Neil Gorsuch’s position is less clear. In his dissent, Justice Thomas said, “The plaintiffs have alleged significant harm to their sovereign interests caused by another state.” He continued, “we should let this complaint proceed further rather than denying leave without so much as a word of explanation.”
Alex Gerszewski, aid to Oklahoma Attorney General Mike Hunter, said, “We are reviewing the court’s decision and will evaluate our options to determine the best course of action.” Douglas Berman, a legal expert, has suggested taking the case to the Department of Justice where Jeff Sessions would be very sympathetic to anti-pot sentiments: “Perhaps they have reasons to be hopeful the department may be sympathetic to those concerns and maybe turn those concerns into new federal policy.”