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Why the Legal Challenge to Colorado’s Adult-Use Marijuana Law Will Fail

6 Mar

A suit has been filed in federal court, by a handful of Colorado sheriffs among others, asking for Colorado’s legal adult-use program to be ended. There is one argument of significance:

The sheriffs, and some other prohibitionists, are asserting that when the state is put into the position of licensing and regulating activities that violate the CSA, they can be argued to be in violation of federal law.

That argument is not original, we’ve actually been hearing it mentioned in other parts of the country. I’ll get back to that in a minute.

The counter-argument to the CSA concern has always been that there is a 10th amendment to the US constitution, which is a guarantee of states’ rights. Also these are intra-state concerns and not inter-state concerns, so the interstate commerce clause of the US Constitution should prevent Congress from interfering with a state program. The two arguments together are quite powerful.

Unfortunately those arguments have been tried, and have failed, in the past. The Raich v Gonzalez case was decided by the Supremes back in 2005. A decade can be a long time in legal terms. We have a new court now, with new judges, and we have new attorneys who have the benefit of all the trial transcripts and motions and appeals histories. There are lawyers out there who have spent the past 10 years learning and studying and devising ways to win on those constitutional arguments.

And we’ve got a lot more than just that. When the Raich case first went to trial, we had very limited experience with regulated state medical marijuana programs. There were no state legal adult use programs. The justices and the attorneys on both sides had no data, no real world experience, on which to draw. They justified over-riding the commerce clause concerns because of the possibility that there might be public health or public safety concerns. And now, 10 years later, we have several states running regulated medical marijuana programs and the states of Washington and Colorado running legal adult-use marijuana programs. We have research and evidence showing that these programs have had a positive impact on public health, and a positive net impact on public safety.

This suit being brought against the state of Colorado by the sheriffs, it’s not an isolated thing. Prohibitionists around the world and around the nation are networked, they work together, they share information. I said before, I’ve heard some of these arguments recently. The state of Oregon is working to implement its own legal adult-use marijuana program. That state’s legislature is being lobbied by the Association of Oregon Counties and the League of Oregon Cities to give local governments more power and authority to ban marijuana businesses and to impose local taxes. Officials from those organizations have made some not-so-subtle threats that if they don’t get their way, some city or county might file suit in federal court, using the same arguments about the CSA that the Colorado suit mentions, to try and stop the Oregon legal adult-use program.

Significantly, those Oregon attorneys conceded that it’s only the regulation and licensing of sale and commercial production that could be challenged that way, and that personal use possession and cultivation could not be challenged with that argument. But I digress.

Doing a little more research, it appears that these arguments were developed in earlier cases, in Michigan and also in Oregon. They’ve been refining and expanding on these arguments over the years, and they’ve been learning from their losses. The prohibitionists think that they know what they’re doing. They don’t seem to understand that our side has also spent the past decade working and learning and sharing information, and learning from our losses as well as our victories. And we’ve been researching and assessing these programs, and their impacts on public health and public safety, and so have the states running these programs.

The prohibitionists want a replay of Raich v Gonzalez. But they must not realize what they’re asking for. The justice who wrote that decision, John Paul Stevens, retired in 2010. Federalism is making a resurgence. The evidence on marijuana legalization is finally in and it is clear that legalization is a good thing on several levels, having positive impacts on public safety and public health. The train has left the station, the tracks are clear, and this time around there are no stops until we have reached our final destination: the end of prohibition.

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