Feds Side With Colorado Over Nebraska, Oklahoma in Supreme Court Pot Lawsuit

In December 2014, we told you about a lawsuit in which the states of Nebraska and Oklahoma asked the U.S. Supreme Court to strike down Amendment 64, the 2012 measure that legalized limited recreational marijuana sales in Colorado.


Now, Colorado has an unexpected ally in its cause: the federal government, which continues to list marijuana as a Schedule I narcotic — a designation that places it on par with heroin.

In a brief that lists U.S. Solicitor General Donald Verrilli as its lead author (see it below), the feds ask the Supremes to reject the Nebraska and Oklahoma filing and allow Amendment 64 to stand.

The original complaint, filed by Nebraska Attorney General Bruning and his Oklahoma counterpart, Scott Pruitt (it's also included here), maintains that "Amendment 64 and its resultant statutes and regulations are devoid of safeguards to ensure marijuana cultivated and sold in Colorado is not trafficked to other states, including Plaintiff States."

The document adds that "in passing and enforcing Amendment 64, the State of Colorado has created a dangerous gap in the federal drug control system enacted by the United States Congress. 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."

Pruitt expanded on these claims in the following statement:
Fundamentally, 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. Federal law classifies marijuana as an illegal drug. The health and safety risks posed by marijuana, especially to children and teens, are well documented. The illegal products being distributed in Colorado are being trafficked across state lines thereby injuring neighboring states like Oklahoma and Nebraska. As the state's chief legal officer, the attorney general's office is taking this step to protect the health and safety of Oklahomans.
Such assertions don't appear to have convinced Verrilli, who maintains that the Supreme Court should deny what's technically known as a "motion for leave to file a bill of complaint" because "this is not an appropriate case for the exercise of this Court’s original jurisdiction. Entertaining the type of dispute at issue here — essentially that one State’s laws make it more likely that third parties will violate federal and state law in another State — would represent a substantial and unwarranted expansion of this Court’s original jurisdiction.

"Nebraska and Oklahoma essentially contend that Colorado’s authorization of licensed intra-state marijuana production and distribution increases the likelihood that third parties will commit criminal offenses in Nebraska and Oklahoma by bringing marijuana purchased from licensed entities in Colorado into those States," the federal brief continues. "But they do not allege that Colorado has directed or authorized any individual to transport marijuana into their territories in violation of their laws. Nor would any such allegation be plausible. Nebraska and Oklahoma have therefore not sufficiently alleged that Colorado has inflicted the sort of direct injury to their sovereign interests warranting an exercise of original jurisdiction. At most, they have alleged that third-party lawbreakers are inflicting those injuries, and that Colorado’s legal regime makes it easier for them to do so. But that is a far less direct connection between state action and the alleged injury than even the connections that this Court found insufficient " in cases involving two previous state disputes, Louisiana v. Texas (from 1900) and Pennsylvania v. New Jersey (from 1976).

Another passage notes that "the premise of Nebraska and Oklahoma’s preemption argument is that Colorado’s regulatory regime stands as an obstacle to the [Controlled Substances Act's] objective of eliminating the interstate market in marijuana. But that sort of allegation could be made in many cases: One State could argue that Congress sought to displace another State’s law because of a desire for a uniform national rule or a concern that one State’s requirements that differed from federal requirements would cause private persons to take actions that would adversely affect the citizens or interests of other States." Hence, "There is no dispute about the United States’ authority to enforce the CSA, and the relief requested by Nebraska and Oklahoma would not require any adjudication of the rights of the United States or any exercise of authority by the United States."

Among those cheering the feds' brief is the Marijuana Majority's Tom Angell.

“This is the right move by the Obama administration. Colorado and a growing number of states have decided to move away from decades of failed prohibition laws, and so far things seem to be working out as planned," he writes to Westword via e-mail. "Legalization generates tax revenue, creates jobs and takes the market out of the hands of drug cartels and gangs. New federal data released this week shows that as more legalization laws come online, we’re not seeing an increase in teen marijuana use, despite our opponents’ scare tactics. The Justice Department is correct here: This lawsuit is without merit and should be dismissed."

Look below to see the brief, followed by the original Nebraska-Oklahoma complaint.

U.S. Government Response to Colorado Marijuana Complaint

States of Nebraska and Oklahoma v. State of Colorado

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Michael Roberts has written for Westword since October 1990, serving stints as music editor and media columnist. He currently covers everything from breaking news and politics to sports and stories that defy categorization.
Contact: Michael Roberts

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