For years, thought leaders in the cannabis business have spoken about the possibility that the issue of cannabis prohibition would some day find its way into the Supreme Court.
That day was just pushed a little closer to reality by one of the staunchest opponents of the cannabis industry – outgoing New Jersey Governor Chris Christie. Christie used the states rights argument to push for online betting in a case at the Supreme Court, Christie v. the NCAA. The case involves a lawsuit by the state of New Jersey over the Professional and Amateur Sports Protection Act (PASPA), a bill introduced in 1992 that prohibited state-sanctioned online betting in every state except for four – Delaware, Montana, Nevada and Oregon. New Jersey wanted to be one of those exempt states but failed to file on time for that exemption.
What PASPA is doing has been doing is forcing states to follow a law – a violation of the Tenth Amendment’s anti-commandeering doctrine – which pre-empts the role of the federal government about directing the states how to act. If the court rules that PASPA is unconstitutional on the Tenth Amendment, that could open the door to other states versus federal issues, i.e. state versus federal laws about cannabis.
“Just taking out the key phrase like on-line sport gambling and inserting cannabis commerce, it would be the exact same argument,” says Allen St. Pierre, former executive director of the National Organization for the Reform of Marijuana Laws (NORML) who is now working with Freedom Leaf. “And there is nothing stopping these states where marijuana is legalized from going into court and suing the federal government. They can either file together or separately. That group of states represents a clear majority to come into the same court that New Jersey used for this argument of online gaming. And that case demonstrates that states have different viewpoints than the federal government, and that they have a degree of autonomy that they can argue.”
The irony that Christie has made no qualms about his position against legalizing marijuana has not been lost on any in the cannabis industry. In a radio interview in mid-November, Christie reportedly referred to legalizing marijuana as “blood money” that was “disgraceful and disgusting.”
But the good news is that Christie is out as governor as of the elections of November, 2017. Incoming Democratic Governor Phil Murphy is expected to legalize recreational cannabis in the state, with the full support of a senate composed of 25 Democrats (and just 15 Republicans), under the leadership of New Jersey Democratic Senate President Stephen Sweeney.
This isn’t the first time that the issue of cannabis has come up in some form at the Supreme Court – and it likely won’t be the last.
In March, 2016, the court declined to take on a lawsuit by both Nebraska and Oklahoma that would have shut down the Colorado cannabis industry. Their state attorney generals claimed that Colorado’s legalization had increased trafficking in their two states, forcing them to spend more on law enforcement resources.
“Today, the Supreme Court has not held that Colorado’s unconstitutional facilitation of marijuana industrialization is legal,” Nebraska Attorney General Doug Peterson said in a statement. “And the Court’s decision does not bar additional challenges to Colorado’s scheme in federal district court.”
He added that his office is working with its partners in Oklahoma and other states to determine the best next steps toward “vindicating the rule of law.”
Then in July, a 12 year old girl, Alexis Bortell, who had to move from Texas to Colorado to get medical marijuana to treat her seizures, filed a lawsuit against Attorney General Jeff Sessions about the federal prohibition of medical marijuana. She was joined by another minor, a military veteran and former San Francisco 49ers defensive end, Marvin Washington.
While this lawsuit seems like a bit of a reach for legalization advocates, cases like these involving real human suffering are precisely the type of cases that can go as far as the Supreme Court. “I am interested to see what happens with this case,” St. Pierre says. “Years ago, cases like this were just readily dismissed. And that doesn’t seem to be the case here. They are opening up the prospect of a full trial.”
In today’s Supreme Court is President Donald Trump’s nominee and confirmed Supreme Court Justice Neil Gorsuch, formerly serving on the 10th Circuit Court of Appeals in Denver, who ruled on three cannabis-related cases in the past few years in that court. Whether he would be an ally or not in a Supreme Court case regarding something as momentus as federal marijuana legalization, however, remains to be seen. But his Colorado background has proponents hopeful he will get that chance and rule in favor of legalization.
It’s California that may have the political will and firepower to finally confront the feds on this issue if a case comes up involving the state. The current lieutenant governor and potential new governor of California in 2018, Gavin Newsom, has been a proponent of marijuana law reform for years, since before his days as mayor of San Francisco from 2004-2011, St. Pierre says. “And California Attorney General Xavier Becerra seems to be totally in favor of going after the federal government if they try to intervene negatively,” St. Pierre says. “He and Newsom, if he wins as governor, seem to sort of baking the cake that California politics will gird against a federal intervention on marijuana in California.”