The Solicitor General of the United Sates says that recreational marijuana is Colorado’s business and there is no need for the U.S. Supreme Court to review claims from Nebraska and Oklahoma that they are owed something because the legal weed is being trafficked beyond the Centennial State’s borders.
Nebraska and Oklahoma sued Colorado a year ago and demanded the Supreme Court make a decision in the dispute among states. It took Solicitor General Donald B. Verrilli Jr. and his team at the U.S. Department of Justice seven months to respond to the Supreme Court’s request for the federal government decision.
The neighboring states claim that marijuana cultivated and sold in Colorado is being ‘trafficked” within their borders because there are no safeguards to prevent it. The two states also say that Colorado’s Amendment 64 leaves a “dangerous gap” in the federal drug control system enacted by Congress and that their marijuana bans, finances, and criminal justice systems are all being strained because Colorado make pot legal and the federal government is looking the other way.
In an opinion certain to elevate the recreational marijuana issue in next year’s elections, the Solicitor General explains how the federal government has backed away from enforcement of the Controlled Substances Act (CSA), first for medical marijuana and more recently for recreational marijuana.
Verrilli cites a 2009 memorandum issued by a deputy attorney general telling U.S. attorneys they “should not focus federal resources in your state on individuals whose actions are clear and unambiguous compliance with existing state laws providing for medical use of marijuana.”
And ahead of voters in Colorado and Washington, who used ballot measures to make recreation marijuana legal, another deputy attorney general amended the document to state that the memo was “never intended to shield” activities such as “large-scale, privately-operated industrial marijuana cultivation centers” with “planned cultivation of tens of thousands of cannabis plants” from prosecution under the CSA “even where those activities purport to comply with state law.”
Afterwards, DOJ’s ever-changing interpretation of the law was further amended and U.S. attorneys were told to consider their “limited investigative and prosecutorial resources to address the most significant threats in the most effective, consistent and rational way.”
U.S. attorneys were also told that the priority was preventing the diversion of marijuana from states where it’s legal to states where it is not permitted.
“The motion for leave to file a bill of complaint should be denied because this is not an appropriate case for the exercise of this Court’s original jurisdiction,” the Solicitor General’s opinion states. “Entertaining the type of dispute at issue here — essentially that one State’s laws make it more likely that third parties will violate federal and state law in another state — would represent a substantial and unwarranted expansion of this Court’s original jurisdiction.”
This case, states the opinion, “does not present the type of dispute between sovereigns that warrants exercise of original jurisdiction.” He notes that Nebraska and Oklahoma are not saying that Colorado “has directed and authorized any individual to transport marijuana into their territories in violation of their laws. Nor would any such allegation be plausible.”
That means Colorado has not “infected the sort of direct injury to their sovereign interests warranting an exercise of original jurisdiction.”
Legal experts say that the Solicitor General’s opinion makes it less likely that the dispute will be heard first by the Supreme Court.
About half of the recreational marijuana produced and sold in Colorado for recreational purposes are foods called “edibles.” Marijuana is infused into all kinds of food products, including cookies, cakes and candies. In addition to being easy to take across state lines because they resemble food products that are not infused, edibles have also raised food safety issues involving everything from pathogens to pesticides.
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