Legal Analysis: Marijuana at the Supreme Court

Supreme Court

By Marguerite Arnold


In what has been seen, depending on one’s perspective, as an obvious legal stance or an administration taking an overdue stand on federal intent, the Obama administration has again spoken publicly about its stance on marijuana reform.

Right before Christmas, Solicitor General Donald B. Verrilli formally urged the Supreme Court not to take up the federal case brought by Oklahoma and Nebraska this year to put a federal chokehold on Colorado’s legal marijuana market.

Response from the industry at least was immediate and positive.

“Nebraska and Oklahoma have asked the U.S. Supreme Court to invalidate a Colorado constitutional amendment that has indirectly affected them,” stated Jamie Rosen, CEO of Dr. Dabber. “This is outside of the Supreme Court’s jurisdiction and if they refuse to hear the case it will send out a powerful statement.”

“I’m so thankful the DOJ is responding this way to such an unreasonable suit by Nebraska and Oklahoma,” said Kyle Sherman, CEO of Flowhub. “These states should change their laws, repeal prohibition, and start collecting taxes on the sale of cannabis instead of fighting to keep the status quo. Not only will this keep product off the black market it will generate revenue for the state. I hope the Supreme Court agrees.”

That said, legal experts were less enthusiastic.

“I do not read too much into the Obama administration’s justice department asking the Supreme Court to drop the case. To me, it’s really a constitutional issue, and not a marijuana issue,” said Marc Ross, a partner at Sichenzia Ross Friedman Ference LLP in New York. “After all, the individual states are set up as experiments for democracy, for the rest of the country to watch and see how things are going in their states. Colorado does not direct or authorize individuals to transport marijuana across state lines, so I think the administration’s stance is a sound, constitutional position.”

The news, however, comes at an opportune time for the issue overall. “As Bob Dylan said, ‘Times they are a-changin,’” Ross said. “The marijuana support train has left the station, and the states are continuing to get aboard. It will soon be almost impossible for the federal government to continue its outright ban of the drug.”

And that is the real message the industry as well as those who advocate for it are taking away from what most see as an early Christmas present from a still too often recalcitrant federal government.

As Ross said, “The issue of marijuana is very much like the issue of gay marriage — change will come from the states and once a majority of the states support some form of legal marijuana, the federal government will have to fall in line. In the next several years, many Republican leaning states will likely adopt marijuana laws, and once a super majority of the states have laws legalizing marijuana, the federal government will have to change its laws.”

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