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It's a well-known concept that federal law preempts state law.

Apparently, as per LA Times Op-Ed The case against Colorado's pot law, Nebraska and Oklahoma are suing Colorado to invalidate Colorado's recreational marijuana law, since the border cities of some border states have already collected far too many visitors from Colorado in their lock-up facilities. (Some towns/sheriffs even go as far as to claim that Colorado must share Colorado's revenues to allow the neighbouring states to prosecute such Colorado visitors!)

The Op-Ed states that the situation is rather clear -- however outdated or incorrect it may be, federal Controlled Substances Act does preempt Colorado Amendment 64 (as well as the similar law of many other states where cannabis is not illegal), even if the previous attorney general, Eric H. Holder Jr., didn't feel like prosecuting anyone (but the office now has a new AG).

But why is the Supreme Court asking the Attorney General for a brief? Isn't the law clear enough as it is?

Can Colorado use the well-known evidence that the federal law is simply outdated and was never really correct to start with, contradicting medical advice since the start?

Likewise, if some states do feel that prosecuting their own citizens who visit Colorado is a worthy pastime for their border cities, why don't they simply put their money where their mouth is, by raising the taxes on their own residents, to make sure their border cities have adequate lock-up facilities?

Is the Supreme Court at all allowed to do something like the Jury Nullification here, to declare that the justice would not be served if the outdated federal law was to preempt the realities of the many states?

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    You beg the question: My impression is that it is widely disputed that federal law can in general preempt state law. On the contrary, "state nullification" of federal government laws has increased recently, and dates back to the Tenth Amendment and the early days of the republic with such acts as the Kentucky and Virginia Resolutions. – feetwet Jun 27 '15 at 0:31
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    @feetwet It is not seriously disputed that federal law can preempt state law. Now, states may not have to make something a crime that the feds also make a crime, but states can't stop the feds from making something a crime. – cpast Jun 27 '15 at 2:53
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    @cnst Your penultimate question isn't one that works on this site (or probably any SE site). If you want to ask questions about politics (and why the law is some way), that's what Politics is for (although "Why not just do this thing that I think is better?" isn't a good fit anywhere on the network). – cpast Jun 27 '15 at 3:10
  • FWIW, the official in the Attorney-General's office who is charged with responding to the request is called the "U.S. Solicitor General" which is the lawyer in charge of U.S. Supreme Court litigation on behalf of the United States government. Sometimes this official is colloquially called the "Tenth Justice". – ohwilleke Jul 3 '18 at 19:47
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    FYI. The case in question was ultimately dismissed by the U.S. Supreme Court. – ohwilleke Jul 3 '18 at 20:16
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First off, a court in the United States does not care if the federal law was good policy or bad policy. Courts do not make those decisions. A court cannot strike down a law for being a stupid idea; it can only strike down the law for violating a more fundamental law (i.e. state and federal constitutions, including striking down state laws for going against federal laws). Courts are not in the business of evaluating whether marijuana is dangerous, because that determination was made by Congress. As long as the law itself does not violate the Constitution (and being stupid doesn't make it violate the Constitution), a court cannot strike it down.

If a law is validly passed under the Constitution, a court likewise cannot decline to strike down a state law that contradicts it. Valid federal laws preempt state law. This is not seriously disputed by courts.

The question before the court is whether or not the CSA forbids Colorado from involving itself in the marijuana business. This is a question about federal law. While the Supreme Court will make the ultimate decision themselves, the US government generally submits an amicus brief on just about every Supreme Court case involving federal laws, outlining its position. The purpose of the brief is to get more arguments, in order to provide more for the court to think about. It is not even a tiny bit unusual for non-parties to submit briefs, and it would be incredibly unusual for the US to not submit one here.

The Supreme Court cannot do something like jury nullification*. That's not their role in the world. No Supreme Court decision can say "well, this is the law, and it's clear, but we don't like it and are doing it another way." Their duty is to apply the actual law, not what they want the law to be. What they can do, though, is stretch words and make arguments to fit what they think it should be. Often, in cases they don't want to handle, they end up finding some technical point to avoid setting broad precedent. But they don't get to simply not apply the law because they disagree.


* Technically, if they do that, they can't be overturned; however, it's just something that is not done.

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Requesting an amicus brief from the Attorney General effectively allows the court to determine the length and strength of arguments the Federal Government might bring. Additionally, the law is never clear enough as it is. That is why courts exist, to apply current law to the facts as it determines them, in the case before it.

Can Colorado use the well-known evidence that the federal law is simply outdated and was never really correct to start with, contradicting medical advice since the start?

No. Putting the implicit bias in the question aside, no matter how "outdated" or not "really correct" a law is, a court cannot strike the law down. A law can only be struck down if it is unconstitutional. (e.g. in the recent ACA case, Roberts railed against the ACA but stated that it is constitutional).

Likewise, if some states do feel that prosecuting their own citizens who visit Colorado is a worthy pastime for their border cities, why don't they simply put their money where their mouth is, by raising the taxes on their own residents, to make sure their border cities have adequate lock-up facilities?

Firstly, they wouldn't need to raise taxes, just increase fines on those coming across the boarder. I am sure there have been similar issues with Blue Laws, though I cannot find any examples at the moment. However, this may have implications on free travel between the states. Since that is not questioned here, I will not get into that.

Is the Supreme Court at all allowed to do something like the Jury Nullification here, to declare that the justice would not be served if the outdated federal law was to preempt the realities of the many states?

No. As I stated earlier, no matter how much the court disagrees with a law, if the law is not unconstitutional, it will not be overturned.

  • I don't really understand your first point, which was the whole basis for the question -- you don't seem to address the fact that previous AG apparently had an agreement with Colorado et al, that they wouldn't prosecute. So, is the court simply asking the AG to re-consider their prior decision, in light of the new circumstances, or what? Because as-is, the federal government is clearly not interested in pursing Colorado. – cnst Jul 6 '15 at 17:54
  • It really doesn't matter what the previous attorney general said. There is no real "reconsideration" since allowing Colorado to legalize is at the whim of the federal government. They are asking the AG to describe its position on the issue. It doesn't matter how "clear enough" the law is. – Andrew Jul 6 '15 at 17:58
  • but didn't AG already have described it, back when the law took place? – cnst Jul 6 '15 at 18:02
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    That was a different AG. Basically, this case is between two states; the federal government is not involved (with the exception of the Supreme Court). Typically, something like Colorado is doing would be allowable because the Fed.G. uses states as experiments / sandboxes for new policies and under this premise allows wide latitude to the state. The SCOTUS is simply asking what the Executive Branch's current stand on this issue is. – Andrew Jul 6 '15 at 18:06
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    It can be thought of as the court requesting an amicus brief. – Andrew Jul 6 '15 at 18:24

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