The attorneys general of Nebraska and Oklahoma kicked off the legal attacks in December. They're arguing that Colorado's law violates the Controlled Substances Act, which dictates federal drug policy. Their lawsuit contends that "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, draining their treasuries, and placing stress on their criminal justice systems."
Under the Supremacy Clause of the Constitution, the CSA takes precedence over Colorado's state law if the two are in conflict as the plaintiffs argue. Colorado says weed is legal, but the CSA says it isn't. Open-and-shut case, right?
Actually, no. "The regulatory regime that Colorado has put in place is not preempted by the Controlled Substances Act," legal professor Sam Kamin, who was part of the task force implementing Colorado's marijuana laws, said in an interview. "I expect those claims to fail." The issue? The Controlled Substances Act dictates federal drug policy -- but it in no way compels states to enforce that policy.
"Congress has no power to compel states to prohibit the cultivation, possession and transfer of marijuana," according to Randy Barnett, an attorney who litigated a Supreme Court case exploring the limits of the CSA. "In the absence of such state prohibition, all such activities are completely legal under state law, notwithstanding that they are illegal under federal law," he writes.
Professor Robert Mikos of Vanderbilt University agrees. "The claim is that Colorado can’t legalize marijuana because it's forbidden under federal law. That’s wrong," he said in an interview. "The federal government can’t force Colorado to criminalize a drug. That would be commandeering, and the court has said that’s not constitutional."
Under current law, federal agents are welcome to waltz in to a state and bust any "legal" marijuana operation they find. But the DEA can't task state and local authorities with enforcing federal law. From that standpoint, state-level marijuana operations are in perfect comportment with the CSA.
The same notion of a state/federal conflict animates the most recent lawsuit against Colorado's laws, filed by a group of Colorado and out-of-state sheriffs. In a statement, Lamar County Sheriff Justin Smith said “this suit is about one thing — the rule of law,” according to The Cannabist. “The Colorado Constitution mandates that all elected officials, including sheriffs, swear an oath of office to uphold both the United States as well as the Colorado Constitutions.” The sheriffs maintain that because the Colorado Constitution legalizes marijuana while the Controlled Substances Act prohibits it, they cannot properly uphold both oaths.
The primary innovation of the sheriffs' lawsuit is more poetic than legal: they claim that Colorado's law has given them a "crisis of conscience," whereby they're forced to choose to uphold either the state or federal constitution. But the primary problem with the sheriffs' lawsuit is the same as the Oklahoma and Nebraska lawsuit: Colorado's laws aren't actually in conflict with the CSA.
Setting aside the lack of legal merit, a larger issue with the CSA lawsuits is that even if the plaintiffs win, they'll lose. The reason is that all they could possibly accomplish is the removal of Colorado's current legal regulations on the marijuana trade. But marijuana's legal status would remain, meaning that the plant would be completely unregulated. It would be "a wild west scenario," according to Vanderbilt's Robert Mikos. Any individual could grow, buy, sell or consume any quantity of marijuana without restriction. And nobody wants that, especially not the legalization opponents filing these suits.
There's a third set of lawsuits against Colorado on the books. These are different from the other two, in that they're not challenging the legality of Colorado's laws under the CSA. Rather, two property owners have filed cases under the federal Racketeer Influenced and Corrupt Organizations Act (RICO), claiming that marijuana dispensaries that haven't even been built yet are hurting their property values.
These lawsuits are frankly a little bizarre -- "filing lawsuits under RICO to deal with this issue is a bit more 'LA Law' than it is real law," according to Brookings Institution political scientist John Hudak. And indeed it's hard to think of a less sympathetic set of plaintiffs.
“From our property you can see the Green Horn Valley, Pikes Peak to the north and the Spanish Peaks to the south,” plaintiff Hope Reilly wrote in a statement reported by The Cannabist. “We bought our land in part for those spectacular views, but now they are marred by the sight of an illegal drug conspiracy at our doorstep. The impact of this on our property is devastating.”
The aim of the RICO act is "the elimination of the infiltration of organized crime and racketeering into legitimate organizations operating in interstate commerce." The idea is that if an illegal operation is harming your business or property interests, you can sue to protect them. In the Colorado cases the plaintiffs contend that marijuana businesses are illegal operations under federal law, and hence can be prosecuted under RICO for harming their interests.
Legal scholars say the RICO claims are more complicated than the CSA lawsuits. A RICO case might have a chance of succeeding if brought by the right claimants, according Robert Mikos. But courts have been very particular about the types of plaintiffs who they've allowed to bring RICO suits.
"It’s not clear that [the current plaintiffs] are actually the ones who Congress meant to benefit through RICO or CSA. It is very difficult to satisfy the civil RICO standing requirements, and I am very skeptical that these plaintiffs would be," he said. Rather, he thinks that a plaintiff like a large drug company could argue that a medical marijuana dispensary is selling "drugs" not approved by the FDA, which would be harmful to its business. But even then, the plaintiffs would face an uphill battle in the courts.
Most of the cases above are being financed by hardline anti-drug organizations that in recent years have found themselves well outside of the mainstream criminal justice debate.
And the RICO cases are funded by the Safe Streets Alliance, a tough-on-crime organization that aims to increase prison sentences in an era of deep skepticism over the merits of lengthy prison terms.
"This is the last hurrah for a lot of individuals in the anti-marijuana community," according to the Brookings Institution's John Hudak. "It's pretty clear that they’ve lost the battle for public opinion."