Hilary Bricken
by

Nebraska and Oklahoma have filed suit in the United States Supreme Court against Colorado for Colorado’s having legalized cannabis. Yes, you got that right. Two states have sued another state for what that other state did within its own borders.

The two states (for purposes of this post, let’s refer to them as the “NO States,” as in Nebraska and Oklahoma) allege that marijuana from Colorado has strained their financial and legal resources and forced them to spend time and money making arrests, housing criminals, impounding vehicles, and seizing drugs. Colorado marijuana has undermined the NO States’ marijuana prevention programs.Without any statistics to support its claim, the NO States claim that Colorado has failed to keep its marijuana in Colorado.It is important to mention (because we have yet to see a news story that does) that the lawsuit does not seek a ruling mandating Colorado ban the personal use of marijuana or prosecute marijuana use as a crime.  The lawsuit instead seeks to cease its regime that allows for the legal growing and distribution of cannabis.

Here are our initial thoughts:

1. Didn’t the NO States have plenty of cannabis in their states before Colorado legalized.

2. Won’t the NO States still have plenty of cannabis in their states even if they prevail on this lawsuit.

3. It is extremely rare for one state to sue another.

4. The Constitution says that one state may sue another state in the Supreme Court without first having to sue in a lower court, but they need the permission of the Supreme Court to do so.

5.  The case is based on the NO States’ claiming Article VI of the Constitution requires federal laws prevail over contradictory state laws and this means that no state may “authorize the violation of federal law.” According to the NO States, Colorado’s allowing growing and distribution of marijuana on a commercial basis violates federal law and damages the NO States.

6.  The NO States are  seeking a ruling that federal law preempts Colorado’s commercial cannabis regime pursuant to Article VI of the Constitution and a Supreme Court order mandating Colorado cease its commercial cannabis regime.

7. We are troubled by this lawsuit because we are of the strong view that the votes of people in one state should not be cancelled by the mores of another state. We also support the federalist ideal of allowing individual states to experiment, with the other states free to decide for themselves whether to do likewise or not. There is something inherently wrong with Nebraska or Oklahoma seeking to tell Colorado what to do. How would Nebraska’s citizens feel about New York State suing Nebraska in an effort to dictate how Nebraska runs its corn program? After all, much Nebraska corn goes to New York.

8. The Supreme Court generally does not like hearing politically charged cases “before their time.” The legalization experiment is too new to provide much evidence on anything, including which way the political winds will eventually blow. Why rule on this case now when you can wait beyond 2016 to see better both the impacts of legalization and more votes by the American people? A decision by the Supreme Court not to take this case will likely invigorate those seeking legalization and cause some states on the precipice of legalizing to tip towards legalization. It might even cause the good citizens of Nebraska and Oklahoma to rise up and question why their state governments choose to blame another state for their own shortcomings.

9. How will the Supreme Court rule if it does decide to take this case? Too early to call. We would prefer to wait and see who is actually on the bench if and when the hearing date on this case comes.

What do you think?

4 responses to “Nebraska And Oklahoma Sue Colorado for Legalizing Cannabis”

  1. Maybe Nebraska and Oklahoma should join Colorado and legalize, then they wouldnt have to waste taxpayers money with litigation against Colorado. It would solve the problem of Colorados weed being in their state as well. Because these states would then have their own weed to sell and tax.

  2. As a non-legal professional, I am extremely interested to learn the Supreme Court’s interpretation of 21 U.S.C. 903. This tiny little provision is the reason I believe the DOJ has never expressed its preemptive authority on state law – because Congress denied the government that authority in 1970. After all, Gonzales v. Raich ruled that the federal prohibition of cannabis within the states was validated by the commerce clause, not the supremacy clause. If the supremacy clause had been implicated, wouldn’t the ultra-conservative Bush administration have immediately sued California to remove their conflicting medical marijuana statute? The NO states don’t have a case that the DOJ couldn’t have already taken. Why didn’t the DOJ think to preempt state law at any time in the last eighteen years?

    The answer I believe rests, again, within 21 U.S.C. 903. And again I am not a lawyer but I do not know of any other place that drug-law-related “positive conflict” is defined in federal statute except for within the provision itself; it means a situation exists in which the federal CSA and the state drug law “cannot consistently stand together”. DEA Administrator Leonhart will be the first to deny this interpretation, but no “positive conflict” exists because both the federal and state governments have retained all authority to enforce their laws independently within their jurisdictions, and the state law does not contain language intended to impede the federal government from enforcing the CSA. No positive conflict means no federal preemption means no case for the NO states. Unless of course the Supreme Court disagrees with this interpretation (and if any qualified legal professional can explain why I’m wrong then please do so). The notion that the federal government retains supremacy over state drug law is patently untrue, and this is evidenced by both statutory language and lack of precedent. State sovereignty is specifically preserved by 21 U.S.C. 903. Who are these big-government Republicans trying to fool anyway.

  3. These NO states basically admitted the war on weed is a monatery pitfall, and that legalization will provide a revenue to the states. If the federal government didn’t think legalization of marijuana was potentially a good move foward they would have shut it down already in CO. Transporting marijuana across state lines is still a federal felony and they should ship the violators off to federal authoritie, not keep them in their facilities. The NO states should not be allowed to comment on North Korea banning a movie in the US, since according to them your allowed to dictate what people outside your borders are allowed to do.

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