Colorado cannabis gets a reprieve as Scalia-less Supreme Court passes over lawsuit



On Friday, legal cannabis country watched the nation’s highest court with bated breath. And … nothing happened.

The U.S. Supreme Court was scheduled to discuss a lawsuit challenging Colorado’s pot laws brought by Nebraska and Oklahoma as the specter of late Justice Antonin Scalia loomed large. His recent death muddied the waters for this and many other cases, but because documents from the conference contain no mention of the case, we can assume the justices skipped right over it — a reprieve for Colorado (for now at least.)

The case rests on the premise that since Colorado legalized cannabis, more of it has flowed across our eastern borders. Nebraska and Oklahoma argue that unfairly burdens their law enforcement agencies. Not only that, but Colorado’s state laws conflict with federal laws — a potential hang-up under the Supremacy Clause of the U.S. Constitution. The plaintiffs’ complaint asks for the dismantling of Colorado’s licensing and regulatory structures.

Whether that would put an end to legal marijuana or just create a bizarre, unregulated though still-legal marketplace is, notably, a big question mark. Regardless, the suit poses an existential threat to Colorado’s budding industry.

Because the legal question at hand concerns a conflict between states, Nebraska and Oklahoma  took it directly to the U.S. Supreme Court whereas typically cases make their way up the appellate chain to get there. That makes it an “original proceeding” — a rare legal maneuver that’s been attempted fewer than 140 times since 1960, with the court taking up only half of those cases.

The already slim prospect for this kind of case was compounded in December when the federal government sided with Colorado. At the request of the court, U.S. Solicitor General Donald Verrilli Jr. submitted a brief opining that “entertaining the type of dispute at issue here — essentially that one State’s laws make it more likely that third parties will violate federal and state law in another State — would represent a substantial and unwarranted expansion of this Court’s original jurisdiction.”

Then, last month, the calculus shifted in Colorado’s favor again when Justice Scalia left the equation.

How he would’ve voted is a matter of fascinating though futile speculation. University of Washington's Cannabis Law and Policy Project entertains that train of thought in this blog post detailing Scalia's rulings on past cannabis related cases. And this is what the proud originalist once told a CU Boulder student who asked him about Colorado’s experiment with legalization: "The Constitution contains something called the Supremacy Clause." (He declined to say more lest he have to recuse himself later.)

Now, if the court does decide to take the plunge with this suit, it could end up in far-out legal waters. In the event of a split vote, cases usually fall back on the last lower court’s ruling which, in this case, does not exist. How things would play out then is not readily apparent.

But supporters of Colorado cannabis can rest easy knowing the court took a pass on this befuddling case.

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