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Nebraska and Oklahoma sue Colorado over marijuana legalization

  1. SmokeTwibz

    In the most serious legal challenge to date against Colorado's legalization of marijuana, two neighboring states have asked the U.S. Supreme Court to strike down the history-making law.

    Nebraska and Oklahoma filed the lawsuit directly with the nation's highest court on Thursday. The two states argue in the lawsuit that, "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 alleges.

    Colorado Attorney General John Suthers said in a statement that he will defend the state's legalization of marijuana, saying that 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 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, came after more than a decade of legal use and possession of marijuana in Colorado for certain medical purposes.

    Stores able 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. — opened on Jan. 1 this year. So far, recreational marijuana stores in Colorado have made more than $300 million in sales in 2014. The lawsuit does not target Colorado's separate medical marijuana system, where registered patients must be Colorado residents.

    Nebraska and Oklahoma's complaint argues that Colorado does not have authority to pass laws that conflict with the federal prohibition on marijuana. Doing so, the states claim, violates 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 states.

    But much of the complaint focuses on harms the two states say have come to them as a result of legal pot sales in Colorado. The lawsuit says the states have suffered increased costs from arrests, the impoundment of vehicles, the seizure of contraband, the transfer of prisoners, and other problems associated with marijuana — which is strictly illegal in the two states — flowing into Nebraska and Oklahoma. The states say the problems amount to "irreparable injury."

    The lawsuit does not cite any figures to back up the claims.

    News stories since Amendment 64's passage have repeatedly noted the complaints of law enforcement officers in neighboring states that marijuana legalization in Colorado is straining their budgets. For instance, the police chief in Sydney, Neb., told a television station this year that half of his department's traffic stops now result in a marijuana arrest. He said the department burned through its yearly overtime budget in six months, mostly paying officers overtime to go to court to testify in marijuana prosecutions.

    Another Nebraska television station reported this year that, while the state's highway patrol has not seen a jump in marijuana citations, it seized nearly twice as much suspected drug money in 2014 as in 2013. Late last year, a spokesman for Oklahoma's Bureau of Narcotics and Dangerous Drugs told The Denver Post that Colorado marijuana has earned a reputation for potency in his state.

    The lawsuit argues that Colorado also has done little to keep pot from leaving the state. Marijuana customers are not subject to criminal background checks and their purchases are not tracked, the lawsuit notes.

    "Nebraska taxpayers have to bear the cost," Nebraska Attorney General Jon Bruning said at a news conference Thursday, in comments reported by the Omaha World-Herald. "We can't afford to divert resources to deal with Colorado's problem."

    "Fundamentally," Oklahoma Attorney General Scott Pruitt said in a statement, "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."

    It is unclear whether additional states will join the lawsuit, which could have implications for more than a dozen other states across the country with recreational or medical marijuana laws, as well as those states' neighbors. A spokeswoman for the Kansas attorney general's office said the state is "assessing our options." Meanwhile, the attorney general in Washington state, which also in 2012 legalized marijuana for adults, stood by Colorado. Attorney General Bob Ferguson said in a statement that he would, "vigorously oppose any effort by other states to interfere with the will of Washington voters."

    Colorado Gov. John Hickenlooper earlier this year proposed hiring two analysts to track out-of-state marijuana diversion, something that ultimately wasn't funded. In an interview Thursday, Hickenlooper said he has talked with officials from Nebraska and Oklahoma about their concerns and how to address them.

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

    Legal analysts also expressed skepticism about the lawsuit.

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

    University of Denver law professor Sam Kamin wrote in an e-mail that the lawsuit does not mount much of a challenge to Colorado's ability to legalize marijuana use or possession. Rather, it focuses mostly on the commercial sale and state regulation of pot — meaning, even if it is successful, it might not entirely strike down Amendment 64 but could lead marijuana stores to close.

    Brian Vicente, an attorney who was one of Amendment 64's chief proponents, charged that the lawsuit is "largely without merit."

    Likewise, other legalization advocates blasted the lawsuit. Mike Elliott of the Marijuana Industry Group said the lawsuit, if successful, could lead to a resurgent marijuana black market. Mason Tvert, another of Amendment 64's proponents, said Nebraska and Oklahoma are "on the wrong side of history."

    "It's unfortunate the state of Nebraska is trying to dictate the laws here in Colorado," Tvert said.

    But groups opposed to legalization cheered 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.

    December 19, 2014
    John Ingold |The Denver Post

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  1. Joe-(5-HTP)
    No, it's the ridiculous and unworkable prohibition laws which place stress.
    No, it's the inherently flawed nature of prohibition laws which injure their ability to enforce them.

    With the money Colorado gets from regulation of marijuana, they can probably pay these whiners anyway.
  2. Penguin Harmonica
    It would seem that the problem is not the marijuana legalization in Colorado, but rather a mis-allocation of resources among the bordering state's police departments. I think the bordering states should subscribe to the age old adage "If you can't beat them, join them". This problem has a simple fix; Oklahoma and Nebraska should legalize marijuana.

    Conversely, one might say that Colorado is being impacted by the bordering states prohibition laws. The real question is this; Will more money be lost by the country in it's entirety if Nebraska wins the lawsuit, or if Colorado loses?

    The fact of the matter is that we live in a capitalist country and ultimately at the end of the day the outcome which will produce the most money to be had will be deemed the best one. As we all know, there is a lot of money to be had from taxing marijuana. I imagine this figure is larger than this 'phantom number' being thrown out by Nebraska and Oklahoma's Attorneys which has not been cited nor confirmed.

    Grab a chair and a bag of pop corn boys, we're about to see Nebraska and Oklahoma told to go fuck themselves by the Supreme court in the name of Marijuana legalization. Ah, the power of capitalism. Isn't it great? :)
  3. CaptainTripps
    I don't think the Supreme Court actually has the power to invalidate the law. I think what the proper course of action should be, is for these states to sue Colorado to prevent legal marijuana from leaving the state of Colorado. This would be like if Colorado legalized all forms of pollution. If dangerous smoke or polluted water entered neighboring states it would be appropriate for them to sue Colorado for damaging their environments. The proper remedy would normally be money damages but in some cases specific performance would be allowed. Under a specific performance remedy a state would be required to take whatever steps necessary to stop the pollution from entering these other states. That would probably mean closing some dirty factories.

    I also think that the conservative members of the court would be hesitant to support this anti states rights lawsuit.

    The reason the states brought the lawsuit the way they did is that suing Colorado under a nuisance theory would not give them the result they want, which is an end to the legalization movement. Under a nuisance theory they would have to prove actual damages, which might be difficult and would also allow Colorado to implement measures to help prevent marijuana from leaving the state.

    I think Washington State is in better shape. They have not "advertised" the way Colorado has. Also recreational marijuana is heavily taxed and there is not nearly enough legally produced product to meet the demand. The result is very expensive legal pot. It is hard to visualize many people coming into Washington to buy this expensive product, one ounce at a time, at a very limited number of stores. I am sure that you can buy cheaper pot on the black market in Idaho than legal pot in Washington. Not to mention the gas and time. The other neighboring state, Oregon has legalized, so I doubt they would be a problem.

    It should be kept in mind that notwithstanding this lawsuit, the federal government has told states that they must meet certain criteria if they want the feds to not interfere with their legalization plans, one of which is that states must take measures to prevent marijuana from leaving their states.

    I think that legal states need to be "good neighbors" and make some real efforts to prevent exports of legal marijuana. I also think that states neighboring legalization states need to realized that small quantities of legal pot entering their states is not the end of the world. Illegal marijuana is readily available virtually everywhere in the United States. This ultimately is a states rights issue, not a federal supremacy issue. I hope.
  4. OTCJ
    What Oklahoma and Nebraska are saying with this lawsuit is that THEIR state rights to prohibit relatively safe consumable substances should supersede Colorado's state rights to legalize them, and that they are willing to stoop to using the proxy of federal law to infringe upon the liberty and democratic will of the Colorado people. I can't help but feel like this is a mirror image situation of slavery becoming illegal, where slave states were trying to make free states return escaped slaves, (who under free-state laws were not actually considered slaves). The slave states wanted to violate free states rights for financial reasons, much like these two prohibition states want to violate Colorado's states rights for financial reasons. There are the obvious law enforcement costs to the prohibition states, but the more conspiratorial parts of my mind suspect that pharmaceutical companies are more than likely behind this. Much like with slavery, slave states were on the wrong side of history and morality, as are, I believe, Oklahoma and Nebraska with regard to prohibition.

    Why is it that Colorado, (a state that democratically decided marijuana is safe enough to be legal), should have its autonomy violate and its people's political will completely nullified because an extremely small minority of people are crossing state borders with marijuana? I understand the quasi-externality issue at play here, which is a reasonable complaint from neighboring states which have to police this inflow of pot which under their state laws is illegal, but it is not the fault of Colorado state-law abiding citizens that enough people in Nebraska and Oklahoma think pot is safe enough to consume that opportunists are incentivized to transport pot across state lines. Attempting to force Colorado into re-prohibiting weed is such an extreme solution as to be despicable. I'm no lawyer, but from a logical standpoint I feel like the onus should be on prohibition states to police violations of their own state laws by private citizens, rather than being an issue worthy of such an over-reaction as suing to overturn the will of the Colorado people regarding pot's legality. Let the free market speak, and if Oklahoma and Nebraska go broke trying to enforce prohibitive laws that are based on bullshit and profited from by wicked people and institutions, let em sink.

    The transport of pot where it is legal in the state of Colorado to non-legalized states is not technically a natural externality, because it is happening not as a direct effect of the marijuana industry in Colorado, but as a result of technically criminal individuals taking advantage of a transitory phase of prohibition in the US. Sure there is a financial cost being incurred by Oklahoma and Nebraska from law enforcement costs, lost Oxycontin sales, and reduced incarceration rates, but not as a DIRECT result of this particular industry, and the cost being incurred is not one that couldn't be addressed in a much more reasonable way. These individuals transporting pot across state lines are the modern equivalent of bootleggers, and my hope is that Oklahoma and Nebraska decide based on how much money the CO weed industry is making, and how much money they are wasting trying to police the shit they just throw their hands up and legalize too!

    But seriously though, why does anyone at any level think it is OK to impose their morality on those that disagree, are minding their own business and are not harming anyone? Financial harm is different from human harm, and to prioritize the financial harm of those benefiting from prohibition over the human harm resulting from prohibition is a major departure from morality in my opinion. Sure the quasi-externality of affecting prohibition state prohibition underpinned industry is a real financial cost, but no one could argue that doing away with prohibitive laws regarding weed would do anything but create an overall reduction of human harm in our society, AND open up a whole new avenue of pro-human industry like Colorado has done with weed to replace any anti-human industry like prison industry, pharmaceutical industry and black market drug industry in Oklahoma and Nebraska.
  5. SmokeTwibz
    Nebraska and Oklahoma are misreading Raich
    I want to second Jonathan’s take on the lawsuit brought by Oklahoma and Nebraska to enjoin the operation of Colorado’s marijuana regulations. Much as I respect Oklahoma’s Attorney General Scott Pruitt, I think this suit lacks merit. Among other vices, it seriously misreads the Supreme Court’s decision in Gonzales v. Raich, which I litigated on behalf of Angel Raich and Diane Monson from the filing of the complaint to the oral argument in the Supreme Court.

    The Court in Raich ruled that Congress had the power to criminalize the noncommercial and wholly intrastate cultivation, possession and transfer of marijuana notwithstanding that it was legal to cultivate, possess and transfer under California state law. The majority did so, in part, because it deemed such possession to be “economic activity” based on a 1966 Webster’s dictionary definition of “economic” that included the production of goods. In this way, it found that the Controlled Substances Act (CSA) — as applied to my clients’ activities — was consistent with the Supreme Court’s decisions in U.S. v. Lopez and U.S. v. Morrison.

    In Lopez and Morrison, the Court had held that the power of Congress to reach wholly intrastate activity, because that activity had a substantial effect on interstate commerce, was limited to the regulation of intrastate economic activity. In Raich, the majority also rested its ruling on the fact that this regulation was an essential part of a broader regulation of interstate commerce. Indeed, Justice Scalia based his concurring opinion in Raich solely on the ground that Congress can reach even noneconomic activity when Congress deemed it essential to a broader scheme to regulate interstate commerce.

    But this was all that the Court ruled in Raich. In no way did it say or even imply that Congress had the power to compel state legislatures to exercise their police power to criminalize the possession of marijuana, or to maintain their previous legislation criminalizing such behavior. It certainly never hinted in its ruling that a congressional power to prohibit intrastate activity somehow required states to criminalize such behavior or “preempted” states from ceasing to prohibit it.

    Such a “preemption” theory is in direct conflict with the Supreme Court’s holdings in New York v. United States and Printz v. United States that Congress may not use its commerce or other powers to “commandeer” the sovereign power of state legislatures to enact laws, or to commandeer state executive branch officials to enforce federal law. Indeed, Congress cannot even mandate that states enact speed limits on federally-funded interstate highways, but is confined to using its spending power to bribe the states to do so by threatening to withhold a portion of federal funding — provided that such conditions on federal spending does not coerce the states. That Congress may not use even its spending power to coerce or commandeer states was also expressly affirmed in NFIB v. Sebelius.

    Now Oklahoma and Nebraska also offer the only somewhat more plausible claim that the Colorado’s marijuana regulatory scheme amounts to actively “aiding and abetting” the violation of the CSA. For this reason, they claim that state regulations facilitating marijuana transactions that are illegal under federal law are preempted by Congress’s flat prohibition on such activity. But that is not the only, or in my view the best, way to look at what is happening here.

    If I am right that Congress has no power to compel states to prohibit the cultivation, possession and transfer of marijuana, then, in the absence of such state prohibition, all such activities are completely legal under state law, notwithstanding that they are illegal under federal law. Therefore, what Colorado’s regulatory scheme is doing here is limiting or restricting the cultivation, possession and transfer of marijuana to those activities that comport with its regulations. As such, these regulations are more consistent with the federal ban than the complete lack of any regulation would be.

    In short, under the Colorado regulatory scheme, some marijuana transactions remain illegal: the transactions that do not conform to its regulations. So if states cannot be compelled to prohibit entirely these activities, they cannot be “preempted” from partially prohibiting some subset of these activities while permitting others.

    In the end, I am afraid that I see no other way to interpret Nebraska and Oklahoma’s lawsuits than as an example of “fair weather federalism.” Indeed, their suit provides the Supreme Court with a marvelous opportunity to reinforce its federalism jurisprudence and make clear the limits of Raich.

    December 19, 2014
    Randy Barnett | The Washington Post
  6. SmokeTwibz
    Are Nebraska and Oklahoma just fair-weather federalists?
    Let me add a few observations about the lawsuit filed by Nebraska and Oklahoma against the state of Colorado to those made by Eugene Volokh below.

    The underlying legal claim is that Colorado’s Amendment 64, which provides for state regulation of a legal marijuana industry, is preempted by the federal Controlled Substances Act (CSA). This is a serious argument — the most serious part of the brief Nebraska and Oklahoma filed. The argument is that Colorado law, by affirmatively providing for a legal marijuana industry, is in conflict with the blanket prohibition on marijuana sale and possession imposed by the CSA. I am unpersuaded on this point — see, for instance, this paper by Robert Mikos of Vanderbilt — but it is a serious argument.

    An interesting wrinkle in the preemption argument, as put forward by the complaining states, is that it expressly relies upon the rationale of Gonzales v. Raich, in which the Supreme Court upheld the application of the CSA to the intrastate possession of marijuana for medical purposes authorized by state law. Raich remains good law, but I am nonetheless surprised to see states such as Oklahoma and Nebraska embrace it so enthusiastically. Most of those who seek to constrain federal power, and expand the reach of state autonomy, see Raich as an obstacle, a decision to be distinguished and narrowed, not a precedent to be expanded.

    Interestingly enough, when Raich was argued, not a single state filed a brief in support of the federal government’s position, but multiple states filed briefs in opposition, including some states (such as Alabama) that were vehemently against marijuana legalization. At the time, Alabama argued that legalization of medical marijuana in California and other states posed no risk to Alabama that Alabama law enforcement could not handle. Oklahoma and Nebraska are now singing a different tune.

    The substantive problem with the suit is less the preemption argument than the basis upon which Nebraska and Oklahoma are seeking to get into federal court. As Eugene notes, they are essentially arguing that Colorado’s authorization of a legal marijuana use creates an interstate nuisance. The harm of which they complain is that more marijuana comes into their states because of Colorado. This is pretty weak gruel as far as nuisance claims go, and seems to be a particularly weak basis upon which to demonstrate standing.

    Accept for the argument that Colorado’s legalization of marijuana understate law imposes costs on Nebraska and Oklahoma that are tantamount to an interstate nuisance. Now think about what happens if the plaintiff states are successful. If Colorado’s laws regulating marijuana are preempted, marijuana will remain legal in Colorado — federal law cannot force Colorado to implement federal preferences on marijuana policy — and Colorado law enforcement will still have no obligation to enforce federal law. So marijuana sale, use, and possession would become less regulated and subject to less control in Colorado. This will make it more difficult for federal officials to police interstate trafficking, and the nuisance about which Oklahoma and Nebraska are complaining would likely get worse.

    Perhaps Nebraska and Oklahoma would argue that Colorado has an affirmative duty to control marijuana within its state. This would be an astounding argument for these states to make, particularly given the positions they have take against commandeering of state officials in other areas. One could perhaps argue that the anti-commandeering rule only applies to Congress, and does not prohibit courts from ordering affirmative relief, but any such argument made here still boils down to the claim that Colorado has an affirmative obligation to regulate a product because the federal government and neighboring states have chosen to make it illegal.

    Indeed, given the efforts by Nebraska and Oklahoma to resist federal environmental initiatives — where similar nuisance arguments and prayers for relief in court could be made — a victory here (however unlikely) would dramatically increase federal regulatory authority. Were Nebraska and Oklahoma able to convince the Supreme Court that Colorado has an affirmative duty to control marijuana use within the state, it won’t be long before New York, Connecticut and other northeastern states are in federal court arguing that Oklahoma, Nebraska, and other states have an affirmative obligation to control greenhouse gas emissions and other pollutants. Is that really what the plaintiff states are trying to accomplish? (Note that the two scenarios can’t be distinguished on displacement grounds, as if the CAA displaces such claims over emissions, the CSA must displace those involving marijuana.)

    It is curious — and disappointing — to see a suit like this filed by two states that have taken the lead in defending state prerogatives in other policy areas. It is as if their arguments about federalism and state autonomy were not arguments of principle but rather an opportunistic effort to challenge federal policies they don’t like on other grounds. It makes Oklahoma and Nebraska look like fair-weather federalists.

    Principled arguments for state autonomy necessarily allow for one state to make policy choices that those in other states may not like. Policy makers in Oklahoma and Nebraska may think that Colorado’s (and Washington’s, Oregon’s, etc.) decision to legalize marijuana was a bad decision. They may even be right. The genius of our federal system is that different states have the opportunity to try different policies.

    If Oklahoma and Nebraska are concerned about the potential effects of Colorado’s decision to legalize marijuana, they would be better served by reforms of federal marijuana policy that would emphasize limitations on interstate trafficking and largely ignore intrastate markets. This is what the federal government did with alcohol in the wake of prohibition, and it represents a better way to respect and protect state autonomy for prohibitionist and non-prohibitionist states alike. But that’s not the approach Nebraska and Oklahoma have sought to pursue here.

    December 19, 2014
    Jonathon H. Adler | The Washington Post
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