Last updated : November 18, 2024
By instituting a lawsuit against Colorado over legalized marijuana sales, Nebraska and Oklahoma have extended John Donne’s sentiment that “no man is an island” when it comes to what’s spilling over state lines. What happens in the Centennial State, they say, affects its neighbors as well—and it’s not secondhand smoke.
The case is particularly interesting because Nebraska and Oklahoma have petitioned the Supreme Court for the right to try the case there, rather than through a series of lower courts. The basis for this petition lies in the Supremacy Clause of Article VI of the Constitution, which treats states as sovereign members of the Union entitled to insist at the highest legal level federal law supersede state laws.
Making a case
November 2012: Colorado voters opted to legalize marijuana for both medical and recreational use. By passing Amendment 64, they also authorized “the manufacture, sale, and distribution” of the drug.
Colorado pot quickly started to show up in neighboring states where marijuana is still wholly illegal, hindering law-enforcement efforts, creating a financial burden, and straining courts. According to Nebraska and Oklahoma, the Colorado amendment’s commercial authorization conflicts with federal law that still classifies marijuana as an illegal Schedule 1 substance with no proven medical value.
December 2014: Colorado’s neighbors filed a bill of complaint, seeking to bring suit at the highest level, using the above-mentioned constitutional justification. These two states want the court to:
- declare the commercial framework established by Colorado’s Amendment 64 contrary to federal law and, thus, unenforceable
- block implementation of the amendment’s commercial aspects
- block state laws and regulations designed to put those aspects into effect
- make Colorado pay all legal costs and expenses incurred during the course of the suit
February/March 2015: amicus curiae briefs—information provided to the justices by “friends of the court” while the court considers whether to accept the case—were filed in support of keeping pot illegal. There were also briefs submitted by states with legalized marijuana laws in support of Colorado.
March 2015: Colorado responded, arguing its neighbor states’ suit was misdirected, as their real complaint lay with the U.S. Department of Justice, which hasn’t enforced laws making possession and distribution of marijuana a federal crime.
April 2015: Nebraska and Oklahoma replied.
December 2015: The Obama administration advised the Supreme Court against trying the case, stating the complainants could as easily bring their suit in lower courts. The Solicitor General—whose opinion is almost always sought when cases are brought directly to the High Court—raised several points:
- Colorado hasn’t authorized anyone to transport marijuana across state lines.
- Colorado isn’t responsible for third-party crimes committed in neighboring states.
- Since Amendment 64 only authorizes sales of up to one ounce of pot, the large-scale trafficking typically handled by federal agencies isn’t facilitated.
- Allowing this suit to go forward could set a precedent for other states that want to force their neighbors to, perhaps unnecessarily, comply with federal policies.
What now?
Before the Court decides one way or another on taking the case, Oklahoma and Nebraska will be given an opportunity to reply to the Solicitor General’s recommendations.
The Court’s final decision may be influenced by other recent developments, as well.
The Kansas Attorney General’s office launched a statewide study to determine how much Colorado marijuana is entering and affecting the Sunflower State. Law enforcement has already reported incidents involving people DUI of edible pot purchased across state lines. Individuals have been caught “bundling” smaller amounts of weed purchased in Colorado for illegal resale in Kansas, and youth find pot easier to access. The results of this study could play into any decision the Court makes.
On the other hand, the Obama administration has ordered federal prosecutors to stop enforcing federal drug laws in states where marijuana has been legalized, except in cases of money laundering. Congress also just passed a spending bill with a provision prohibiting federal agents from raiding retail marijuana businesses in the 32 states where medical marijuana is legal. Clearly, the federal government’s stance on pot is undergoing a shift, another factor that might affect more than just whether Oklahoma and Nebraska have a case, but the federal future of the still Schedule I drug.
