Advancing marijuana reform faces a major roadblock

Posted at 1:55 PM, Jan 07, 2015
and last updated 2015-01-07 22:23:09-05

Riding the tide of overwhelming success in states such as Oregon and Alaska last year, pro cannabis activists are hoping to propel their winning streak through 2015 and beyond.

Today recreational marijuana is legal in four states, while medical marijuana use is legal in 20 states and the District of Columbia. The drug is decriminalized in 17 states and D.C. Activists plan for 2015 to be a preparation year to turn more states "green" while they keep their eye on the prize: legal reform in 2016.

“2016 will likely be a watershed year when it comes to marijuana law reform, because that is the year we expect to see voters in a number of states, potentially half a dozen states, go to the ballot box and decide whether they wish to continue the status quo or whether they wish to move forward with alternative regulatory schemes like those that voters have already enacted in Colorado, Alaska, Washington and Oregon,” said Paul Armentano, deputy director at the National Organization for Reform of Marijuana Laws [NORML]. “I think it is unlikely that you will see voters have the opportunity to make that decision in 2015 because it’s a non-presidential election year,” which means less voter turnout. 

Armentano says future reform initiatives will likely trend towards citizen-introduced state ballot initiatives—a strategy that has been more successful than trying to push legislation on state lawmakers. States where we will likely see new reform measures in 2016 include Arizona, California, Maine, Massachusetts and perhaps a renewed push to pass medical marijuana in Florida. Nevada already has jumped the necessary hurdles to get legalization on its ballot and will do so in 2016.

But while widespread reform in 2016 is the end goal, this could be the most challenging year yet for legalization advocates.

A pending lawsuit filed at the end of last year that will likely reach  the Supreme Court could derail any progress the movement has made—and may even kill measures moving forward.

The suit, brought by the attorneys general of Nebraska and Oklahoma against Colorado claims that the implementation of Colorado’s marijuana legalization law is pushing the drug into neighboring states, where it is not legal.

It argues that Colorado “created a dangerous gap” in the federal drug-control system and that neighboring states are being harmed because of it. By invoking the Commerce Clause, which grants the federal government jurisdiction over interstate business, the suit asks the government to intervene and implement federal law, which classifies marijuana as a Schedule I drug.

The case would go directly to the Supreme Court if it agrees to hear it. A ruling in favor of the suit would essentially challenge Colorado and other state’s rights to regulate their own justice system.

Some legalization proponents have written it off as a complete stretch. NORML went as far as calling the lawsuit a “Hail Mary pass”. But other law experts say the challenge may not be a simple blip in the news.

“Whether it’s politically motivated, whether it’s pursuing objectives… all the facts suggest that this is not something to be dismissed or ignored,” said Richard Blau, a partner at Gray Robinson LLC, who heads the firm’s regulations arm. “That said, does the case have a pretty long road to travel before it achieves any roads to success? I think it definitely has some obstacles to overcome.”

The main point the lawsuit aims to make, according to Blau, is that because the federal government has established a clear policy against marijuana’s legality, states are preempted from deviating from that policy.

But Blau says the federal government’s current mood towards marijuana legalization is blurry. Recent actions by the federal government indicate that its policy on marijuana may not be as clear as the lawsuit hopes to prove.

While cannabis is still officially listed as a Schedule I drug, ranked with the likes of heroin, the federal government has also recently taken a very hands off approach.

In 2013, a memo from Department of Justice declared that the federal government wouldn’t interfere in state marijuana laws going forward. And a provision passed in December in the federal spending bill expressly blocks the DOJ from going after states where medical marijuana is legal.

“The notion that states like Colorado and Washington state and Oregon and Alaska, that they can’t go off the reservation when the federal government has made marijuana a Class I drug and allowed its use—that’s a simplistic argument and, in a matter of jurisprudence, is incorrect,” Blau said.

The Nebraska and Oklahoma lawsuit must also prove there is a specific burden imposed by the marijuana legalization law in Colorado on their states – a high burden and something that remains to be seen.

“I tend to think this is largely political theater, it remains to be seen whether the Supreme Court will even take up the issue,” said Armentano of NORML. “My concern frankly is that opponents who are always looking for an excuse not to move forward with marijuana reform will now point to this pending lawsuit and will say our states can’t seriously consider legalizing marijuana until this suit plays out”

Nevertheless, most legal battles don’t move quickly, and it’s likely that Colorado, the state that lead the recreational marijuana movement into its first victory, may be tied up in litigation for some time. 

[Related: Is America ready for marijuana vending machines?]

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