Nebraska and Oklahoma File U.S. Supreme Court Lawsuit Over Colorado’s Legal Pot

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Colorado is being sued. Yes, the state of Colorado. Nebraska and Oklahoma, two neighbors of the state have filed a lawsuit with the highest court in the land, the U.S. Supreme Court. They want the court to axe the history-making law. Their argument? “The State of Colorado has created a dangerous gap in the federal drug control system.”

“Marijuana flows from this gap into neighboring states, undermining Plaintiff States’ own marijuana bans, draining their treasuries, and placing stress on their criminal justice systems,” the lawsuit reads.

You can read the full lawsuit here

The Attorney General for Colorado John Suthers made a statement on Thursday that said he will defend marijuana legalization in the state, saying the lawsuit is, “without merit.”

“Because neighboring states have expressed concern about Colorado-grown marijuana coming into their states, we are not entirely surprised by this action,” Suthers said. “However, it appears the plaintiffs’ primary grievance stems from non-enforcement of federal laws regarding marijuana, as opposed to choices made by the voters of Colorado.”

Colorado legalized recreational marijuana in 2012 after voters passed Amendment 64. The amendment specifically legalized use and limited possession of marijuana for anyone over the age of 21. Medical marijuana had been legalized for certain medical purposes for more than a decade at that time.

Currently retail shops in Colorado are allowed to sell up to an ounce of herb to anyone 21 or older with a Colorado state I.D. Adults 21 and over with an out of state I.D. can purchase a quarter ounce. Retail sales started on January 1st this year. Since the stores open recreational pot shops in the state have sold more than $300 million.

The lawsuit against Colorado says that the state does not have the power to pass a law that is in direct conflict of a federal law. They claim that this is a violation of the Supremacy Clause of the U.S. Constitution.

“Colorado Amendment 64 obstructs a number of the specific goals which Congress sought to achieve,” the lawsuit says.

The major focus of the lawsuit talks about how the two neighboring states have been affected by the fact that legal pot sales are allowed across the border. The states list a host of problems since the legal sales began including: increased costs from arrests, impounding vehicles, contraband seized, transfer of prisoners and other issues they are association with marijuana. The states are claiming the problems have caused “irreparable injury”.

There have been numerous news stories since January 1st, mostly from law enforcement officers in the neighboring states. An example was the police chief in Sydney, Nebraska went on record to a TV station stating that over half of his departments traffic stops this year have involved a pot arrest. The department burned (haha no pun intended) through an entire years budget in just 6 months, with a majority of it going to police officers spending time in court to testify in marijuana cases.

There are arguments made in the lawsuit claiming that Colorado hasn’t done much to keep pot from leaving their state.

Jon Bruning the Attorney General for Nebraska said, “Nebraska taxpayers have to bear the cost. We can’t afford to divert resources to deal with Colorado’s problem.”

“Oklahoma and states surrounding Colorado are being impacted by Colorado’s decision to legalize and promote the commercialization of marijuana which has injured Oklahoma’s ability to enforce our state’s policies against marijuana,” commented Oklahoma Attorney General Scott Pruitt.

No other states have joined the lawsuit. The lawsuit could cause complications or similar lawsuits for other states that have legalized recreational or medical marijuana. Someone speaking on behalf of the Attorney General’s Office in Kanas said they are “assessing their options.”

The Washington State Attorney General Bob Ferguson, is standing by Colorado and issued a statement saying he would, “vigorously oppose any effort by other states to interfere with the will of Washington voters.”

Earlier this year Governor of Colorado John Hickenlooper suggested the hiring of two analysts who would track out-of-state pot diversion. The Governor said he has had conversations with leaders in Nebraska and Oklahoma about the concerns they have and how they can be addressed.

“I’m not sure filing a lawsuit is the most constructive way to find a solution to whatever issues there are,” he said.

There are legal experts also a bit unsure of the lawsuit as well.

“Congress can’t force states to criminalize marijuana,” said Vanderbilt law professor Robert Mikos, “Oklahoma and Nebraska cannot simply force Colorado join their fight,” Mikos wrote in a blog post. Mikos is an expert on the intersection of federal power and state marijuana laws.

Sam Kamin University of Denver law professor said in an e-mail that the lawsuit does not bring much of a challenge to Colorado’s ability to legalize cannabis use or possession. Instead, it focuses primarily on the commercial sale and state regulation of pot — which means even if the lawsuit is successful; it might not entirely strike down Amendment 64 but could lead marijuana stores to close.

But obviously there are groups who are against legalization that cheered at the news of the lawsuit. Mark de Bernardo, the executive director of the Institute for a Drug-Free Workplace, said state marijuana legalization violates not only the U.S. constitution but also international treaties to which the United States is bound. Kevin Sabet, a co-founder of the national group Smart Approaches to Marijuana, said legalization of marijuana “is not implemented in a vacuum.”

“Colorado’s decisions regarding marijuana are not without consequences to neighboring states, and indeed all Americans,” Sabet wrote in a statement.

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