That our standing doctrine is so hostile to permit constitutional suits based on a failure to faithfully execute the law, parties have sparked some creative theories to challenge non-enforcement. I’ve blogged about a suit filed by Nebraska and Oklahoma in the Supreme Court’s original jurisdiction, alleging that Colorado’s legalization of marijuana is a “nuisance.” SCOTUS requested the views of the Solicitor General in May–I am eagerly waiting that reply. (Yes, these are the things I wait for).
In February, a suit was filed by the Safe Street Alliance, represented by Cooper and Kirk, (I only discovered this suit today from a Walter Olson blog post). Under civil Rico, they charge that marijuana dispensaries, and the state government, are acting in violation of federal law–even if it is legal under state law.
From the complaint:
4. Dealing in marijuana is racketeering activity under RICO, and those who engage in a pattern of racketeering activity through a corporation or other enterprise are liable for three times the economic harm they cause plus costs and attorneys’ fees. Those who conspire with racketeers by agreeing to assist them are likewise liable. RICO also gives federal courts the power to order racketeering enterprises and their coconspirators to cease their unlawful operations. Accordingly, the Reillys ask this Court to award them the damages, costs, and fees to which they are entitled, and both Plaintiffs request that the Court order the RICO Defendants to cease their open and notorious violation of federal law.
5. Furthermore, the CSA preempts the practice of state and local officials in Colorado of issuing licenses to operate recreational marijuana businesses. Those licenses not only purport to authorize but also affirmatively assist the criminal conduct of those who receive them by making it easier for license holders to attract investors and customers. Recreational marijuana business licensing directly conflicts with and poses a major obstacle to federal law’s goal of reducing marijuana trafficking and possession through an almost total prohibition on the drug’s cultivation and distribution. Accordingly, Plaintiffs ask this Court to order the named state and local governmental defendants to withdraw the recreational marijuana licenses they have issued so far and not to issue any additional such licenses in the future.
I don’t know nearly enough about RICO to opine on this case, other than to note that if the Court’s standing doctrine was relaxed for constitutional cases, we wouldn’t have to deal with these circuitous routes to challenge blatant non-enforcement of the law.