Right now, the biggest threat to the states who have (or intend to have) legal marijuana isn't necessarily local law enforcers, prohibitionist politicians like Republican presidential candidate Marco Rubio or even the DEA. It could be a lawsuit filed by the states of Nebraska and Oklahoma against Colorado and its marijuana legalization regime.
On December 2014, Nebraska and Oklahoma filed a lawsuit against Colorado with the U.S. Supreme Court. They argue that Colorado's legal marijuana is supplying black markets in their states, which makes it harder and more expensive for them to enforce state laws prohibiting marijuana.
The case could threaten legalization in Washington state, Oregon, Alaska and Washington, D.C. as well as in Colorado. And it could help defeat 2016 legalization campaigns before voters have a chance to cast their ballots.
The Obama administration has urged the justices to throw out the lawsuit, but the court hasn't indicated whether or not it will hear the case.
Nebraska Attorney General Doug Peterson is trying to force the issue. On Feb. 23, he wrote an article for The National Review outlining why the Supreme Court should overturn legalization in Colorado.
Here are the reasons his arguments are unworthy of the Supreme Court's time.
1. Prohibition doesn't work
Peterson begins by offering a rose-tinted overview of the Controlled Substances Act (CSA), which was passed in 1970:
"For nearly half a century, the CSA has stood as the law of the land, marking a consistent and collective recognition that the inherently interstate problem of drug trafficking can only effectively be addressed on a national scale."
Trouble is, the CSA hasn't been effective. In 2012 - before any states began selling recreational marijuana legally - Sir Richard Branson wrote a provocative special report for CNN titled, "War on Drugs a trillion-dollar failure." Branson noted that prohibition wastes tax dollars and ruins lives through incarceration, but doesn't reduce drug use in America.
More recently, Ilya Shapiro of the Cato Institute called on President Obama to remove marijuana from the CSA because federal drug enforcement has proven ineffective:
"Virtually all marijuana-related arrests are handled by state and local law enforcement. The federal Drug Enforcement Agency (DEA) simply lacks the resources to enforce the federal ban across all 50 states. That's why the Justice Department decided not to fight the legalization of marijuana in the handful of states that have taken that step."
And America's failure to win the War on Drugs might not be a problem with prohibition itself rather than federal law. On Feb. 23, former U.N. Secretary General Kofi Annan called on the world to end prohibition because the drug war hasn't curbed use or illegally trafficking worldwide. To control the drug trade and combat addiction, Annan argued, substances such as cannabis need to be legalized and regulated.
2. Legalization was a democratic process
Legalization in Colorado, Attorney General Peterson alleges, is an affront to America's Founding Fathers and the Constitution:
"Colorado's regulatory scheme, coupled with federal inaction, effectively renders the CSA a nullity when it comes to marijuana....Did the Framers of the Constitution really intend for unelected bureaucrats to have the power to allow states to circumvent federal law? No chance."
That statement's half true, at least. The Founding Fathers probably wouldn't support bureaucrats making up federal laws and regulations arbitrarily.
But that's not what Colorado did. That's not what any of the legal states did. All four states and Washington, D.C. legalized recreational marijuana through voter-initiated ballot measures. Basically, activists groups put together petitions to legalize marijuana statewide, and voters approved. So each state repealed its own laws, and they did it democratically. It wasn't a matter of bureaucrats scheming to undermine federalism.
3. Colorado laws don't conflict with federal ones
Attorney General Peterson's trump card in this debate is the Constitution's "supremacy clause," which defines federal and state jurisdiction. On top of the CSA, Peterson argues:
"Colorado's actions [i.e. legalization] must yield to another provision of the Constitution: the supremacy clause. As the Supreme Court reaffirmed in [Gonzalez v.] Raich, the supremacy clause 'unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail.'"
Again that's true, but it might not be applicable to Nebraska and Oklahoma's lawsuit. When there is a clear conflict between federal law and state law, the former preempts and nullifies the latter. But according to Robert McVay - a business lawyer for Harris Moure who specializes in regulated substances - there might not actually be a conflict between Colorado and federal law because both levels of government have jurisdiction over drug enforcement:
"The law is clear that both the state and federal government can regulate and do other things involving marijuana," McVay told Civilized. "The argument against preemption is that federal agents can still go into a state and enforce the law. So you could say that legalization isn't in conflict with federal law."
Basically, unless the legal states try to prevent the Department of Justice or DEA agents from entering the state to enforce prohibition, they are arguably compliant with federal law despite legalizing marijuana.
In essence, each level of government has a right to pursue it's own laws, even if they conflict.
But that's just one interpretation of the Constitution. The Supreme Court might see things differently if they decide to hear the lawsuit. Stay tuned.