Nebraska and Oklahoma filed the first major court challenge to marijuana legalization on Thursday, saying that Colorado’s state-regulated recreational pot program has created an increased law enforcement burden in neighboring states and asking the U.S. Supreme Court to shut it down.
Colorado voters in 2012 passed Amendment 64, which legalized use and limited possession of marijuana by anyone over 21. The new law, tied for the first in the nation to widely legalize marijuana at the state level (Washington legalized weed in the same year), permits stores to sell up to an ounce of marijuana to any adult with a Colorado I.D., or a quarter-ounce to any adult with an out-of-state I.D. Since such shops opened their doors on January 1, 2014, they’ve hauled in more than $300 million.
The lawsuit, filed by the attorneys general of Nebraska and Oklahoma, where marijuana is still outlawed, charges that 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 states.
The New York Times reported that “[f]or months, some sheriffs and police officers in rural counties bordering Colorado have complained that they have seen more marijuana entering their towns and being transported down their highways since recreational sales began in January. Oklahoma and Nebraska said the influx had led to more arrests, more impounded vehicles and higher jail and court costs. They say it has also forced law-enforcement agencies to spend more time and dedicate more resources to handling marijuana-related arrests.”
In a press conference Thursday, Nebraska attorney general Jon Bruning said: “This contraband has been heavily trafficked into our state. While Colorado reaps millions from the production and sale of pot, Nebraska taxpayers have to bear the cost.”
The lawsuit argues that state-level marijuana legalization violates the U.S. Constitution’s Supremacy Clause, which establishes that federal law generally takes precedence over state law. The Controlled Substances Act classifies marijuana as an illegal schedule 1 substance, meaning it’s deemed to have no medical value and high potential for abuse. Nebraska and Oklahoma argue that the Controlled Substances Act should overrule Colorado’s marijuana legalization law and force the state to keep marijuana illegal.
In 2013, the U.S. Department of Justice said it would not interfere with state laws that legalize marijuana provided that measures are taken to prevent the distribution of marijuana to minors and impede the diversion of marijuana from states where it is legal to those where it is not, among other priorities.
The lawsuit argues that Colorado has done little to keep marijuana from leaving the state. Pot customers are not subject to criminal background checks and their purchases are not tracked, it notes, and thus the program lacks “safeguards to prevent the retail sale of marijuana either to persons intending to transport marijuana to other states or to persons engaged in a criminal enterprise.”
But legalization advocates lambasted the suit as short-sighted.
“This is a misguided effort to undo cautious and effective state-level regulation of marijuana and to undermine the will of the voters and legislators who enacted it,” said Tamar Todd, director of the Marijuana Law and Policy program within the Drug Policy Alliance. “Today’s action isn’t just a challenge to Colorado but to the ability and authority of all states to regulate and control marijuana within their borders as they see fit.”
The lawsuit, Todd continued, implicates the four states that have adopted ballot initiatives to tax and regulate marijuana for adults, as well as the 34 states that have adopted laws to regulate medical marijuana. “Today’s action is nothing more than an effort to cling to the failed policies of the war on drugs and interfere with a new common sense, less harmful approach to marijuana,” she declared.
Mike Elliott, of the pro-legalization Marijuana Industry Group, based in Colorado, put it in starker terms: “If Nebraska and Oklahoma succeed, they will put the violent criminal organizations back in charge.”
In a statement, Colorado attorney general John Suthers said: “We believe this suit is without merit and we will vigorously defend against it in the U.S. Supreme Court.”
Suthers’s assessment of the lawsuit was echoed in a blog post by Vanderbilt law professor Robert Mikos, an expert on the intersection of federal power and state marijuana laws, who also said the case lacked merit.
“Congress can’t force states to criminalize marijuana,” he wrote. “It follows that Congress also can’t stop states from legalizing marijuana; after all, legalization is just repeal of criminalization. It would be odd to say Congress can’t force a state to criminalize marijuana in the first instance, but it could force a state to keep a criminal prohibition on its books if it had already passed one. There are, of course, limits to this anti-commandeering principle. For example, Colorado probably couldn’t open a state-run marijuana store. But nothing in the lawsuit remotely suggests that Colorado has yet exceeded those limits and done something that is pre-emptable.”
