April 28, 2017

What the Supreme Court’s Decision Does to Texas Marijuana Laws

austin-criminal-attorneyTexas marijuana lawyers like James Gill will tell you that the Supreme Court has been very active recently, and not just because it has that vacant seat that is so heavily discussed in the news right now. They made a significant decision on March 21 regarding marijuana law in Colorado that may have long-term implications. At some future date, if Texas marijuana laws are loosened or abolished, historians and legal scholars may point at this decision as the first step toward legalization.

The decision itself wasn’t a judgment on a lower court ruling. Instead, the Supreme Court declined to hear a case brought by Nebraska and Oklahoma against their neighboring state of Colorado about its marijuana laws. The two states claim that Colorado’s burgeoning marijuana market affects their criminal justice systems and their residents. “If this entity were based south of our border,” they write, “the federal government would prosecute it as a drug cartel.”

In filing this case, Nebraska and Oklahoma were using a rarely-employed provision in the law that permits disputes between states to be first heard in the Supreme Court. This proviso is generally invoked sparingly by the Supreme Court on matters like interstate boundary and water rights disagreements.

In his brief, the Solicitor General Donald Verrilli Jr. argued that the Supreme Court should not weigh in on the disagreement. “Entertaining the type of dispute at issue here — essentially that one State’s laws make it more likely that third parties will violate state and federal law in another State — would represent a substantial and unwarranted expansion of this Court’s original jurisdiction.”

For their part, two Supreme Court justices, Clarence Thomas and Samuel Alito Jr., disagreed with Verrilli, dissenting on the decision to leave the case unheard. Justice Thomas wrote, “The plaintiff states have alleged significant harms to their sovereign interests caused by another state.”

Although Verrilli’s brief does not explicitly address the merit of the suit’s core allegations, it does put the nation’s top lawyer and the Department of Justice in an unexpected position — that of defending citizens’ rights to consume marijuana in a licensed and monitored retail system.

Colorado Attorney General Cynthia Coffman described the suit more bluntly as “an attempt to reach across their borders and selectively invalidate state laws with which they disagree.”

Before legalization advocates celebrate too much, they should read the words of Vanderbilt Law School professor Robert Mikos, who says, “There’s no reading the tea leaves here on anything about marijuana legalization at the state or federal level. (The brief) is really about Supreme Court practice.”

Of course, as both Verrilli and Colorado officials point out, Nebraska and Oklahoma are fully able to bring the case to a federal trial court, and if they lose there, they can attempt again to bring it before the Supreme Court.

The future of Texas marijuana law remains largely murky. At the same time, Austin marijuana lawyer James Gill points out that this decision certainly demonstrates respect at the highest legal level for jurisdiction and implies a certain level of support for states to decide their own approach to marijuana legalization. “It’s certainly not precedent-setting,” James says, “but the case opened the door for the highest court to strike down Colorado’s legalization in a definitive way, and they chose to close that door for now.”