A Colorado Court of Appeals opinion from June on a handful of lawsuits seeking to strike down Amendment 64 under the Racketeer Influenced and Corrupt Organizations Act ruled private citizens do not have a right of action to make preemption claims. The ruling left open the possibility for the federal government to definitively claim preemption of the RICO statute over state marijuana laws, but some experts in that area of law say enforcing preemption may not be so easy as invoking the Supremacy Clause in the current federal political climate.
Zane Gilmer, a business and commercial litigation attorney with Stinson Leonard Street in Denver, said the Trump administration may have a difficult path to making a preemption claim for the RICO statute because of its implicit support of the medical marijuana industry. President Donald Trump signed a spending bill on May 5 that stipulated the Department of Justice can’t use funds to to prosecute state-licensed medical marijuana operations.
That stance aligned with Section 542 in the 2014 Consolidated Appropriations Act, which the Court of Appeals for the 9th Circuit upheld in 2016 in United States v. McIntosh.
“Even though the administration may be opposed to recreational marijuana and may want to take enforcement actions against folks that are participating in the recreational mari-juana industry, they may not want to do that against the medical marijuana industry,” Gilmer said. “And so if they tried to go in and make federal preemption arguments, it’s possible that those claims could potentially cover both recreational and medical marijuana licensing structures, and that could have unintended consequences for the Trump administration.”