The two states are accusing Colorado’s booming cannabis industry of spilling across their borders and getting their citizens illegally high.
On Thursday afternoon, Colorado suddenly found itself the target of a lawsuit from neighboring states over its legalization of commercial marijuana. Nebraska and Oklahoma announced their intention to join forces in requesting the US Supreme Court overturn Amendment 64, the Colorado voter-approved law that legalized recreational marijuana sales after it passed in 2012. The two states accuse Colorado’s booming cannabis industry of spilling across their borders, leading to an influx of Rocky Mountain grass where it doesn’t belong.
“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,” Oklahoma Attorney General Scott Pruitt said in a statement. “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.”
The action filed by Nebraska and Oklahoma asserts that Amendment 64 is unconstitutional under the Supremacy Clause, which states that any laws or treaties “under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.”
Constitutional law professor at University of Colorado Boulder Richard Collins says that while it’s not uncommon for one state to sue another (Colorado has often found itself in legal entanglements with neighbors over rights to its river water), he’s never encountered a Supremacy Clause case like this.
“I don’t know of anything close to it,” he says. “The novelty is the situation where federal law forbids what we do, but the [Obama] administration has decided to lay off to a certain extent, under specific rules. They could’ve gone after the president for not enforcing marijuana laws—as they are with immigration—but instead they’ve decided to come after Colorado directly and say that our violation of federal law causes harm to them.”
To Collins’s knowledge, the Supremacy Clause has never been used in connection with drug laws. And the Colorado government says that the lawsuit is nothing more than a cloud of smoke.
“Because neighboring states have expressed concern about Colorado-grown marijuana coming into their states, we are not entirely surprised by this action,” Colorado Attorney General John Suthers said in a statement. “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. We believe this suit is without merit and we will vigorously defend against it in the US Supreme Court.”
The way Amendment 64 was written, those with a Colorado ID are allowed to purchase up to one ounce per person, per day in each store; anyone with an out-of-state ID can only buy up to a quarter-ounce. The intention was to curb the amount of cannabis potentially brought home by visitors, though law enforcement officers in surrounding states say they’ve had to ramp up their efforts near the border to keep as much Colorado pot out of their jurisdictions as possible.
Mason Tvert, the communications director for the Marijuana Policy Project, was instrumental in the passage of Colorado’s Amendment 64, and has been working to facilitate similar changes in states throughout the US.
“We agree with the Colorado Attorney General’s opinion that this suit is without merit,” Tvert said in a statement Thursday afternoon. “This is a classic case of a solution in search of a problem. They are wasting Nebraska and Oklahoma taxpayers’ dollars by filing this suit, and they’re forcing Coloradans to pick up the bill for defending ourselves against it. Colorado’s top law enforcement officials have better things to do, and you’d think their counterparts in Nebraska and Oklahoma would as well.
Collins says that since the Supreme Court is in session, it shouldn’t take long for them to make a decision on whether or not to hear this case. “This will just be a preliminary ruling, which is just based on what they claim the harm is that has been done to their state, not on any evidence,” Collins says. “If the court allows them to file a complaint, then it’s possible that the states will ask for an emergency order of some kind . . . which may be a preliminary injunction to order Colorado to stop doing what we’re doing while the case is being heard.”
Collins adds that due to the unique nature of this case, it’s difficult to predict how things will play out. Though in his estimation this grievance has a fair chance of being heard, it’s unlikely that this will shut down Colorado’s commercial marijuana industry. “I have a strong instinct that Colorado will win this case somehow,” he tells me, “because it’s so internal to the state—unless Oklahoma and Nebraska find some remedy that doesn’t shut us down. If they have some proposal that controls the highways between the states, or some lesser remedy of that kind, the case might have legs. But the motion that they’ve made here really talks about shutting us down.”