Last month, the attorneys general of Oklahoma and Nebraska moved the Supreme Court for leave to file a lawsuit against Colorado on behalf of their respective states, invoking the high Court’s original jurisdiction. The thrust of their complaint is that Colorado’s Amendment 64—the 2012 voter initiative that legalized, regulated, and taxed marijuana—is preempted by the federal Controlled Substances Act (CSA). In essence, Oklahoma and Nebraska contend that Amendment 64’s legalization of the marijuana industry “has created a dangerous gap in the federal drug control system” that allows marijuana to flow into neighboring states with the effect of “undermining [their] marijuana bans, draining their treasuries, and placing stress on their criminal justice systems.”
The case is intriguing for several reasons. Perhaps the most interesting storylines, at least superficially, concern the lawsuit’s political optics. Nebraska and Oklahoma have ideologically conservative attorneys general, yet a state asking the federal government to intervene in the affairs of a neighboring state is hard to reconcile with typical conservative positions regarding federalism. Further, the states’ argument relies heavily on the rationale of Gonzales v. Raich, a 2004 case in which the Supreme Court upheld provisions of the CSA that criminalized intrastate possession of medical marijuana authorized by state law. As Johnathan Adler has noted, it is curious that these conservative states would rely on Raich: “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.”
Equally interesting are the legal implications of the lawsuit, particularly the unintended consequences that may flow from a verdict in Nebraska and Oklahoma’s favor. The states have asked the Supreme Court to declare unconstitutional and enjoin implementation and enforcement of two sections of Article XVIII of the Colorado Constitution—two of the constitutional provisions amended by Amendment 64. Section 16(4) provides that certain marijuana-related commercial activities “are not unlawful and shall not be an offense under Colorado law.” Section 16(5) allows the state to regulate the manufacture and sale of marijuana.
But the Supreme Court cannot force Colorado to criminalize marijuana, at least not under existing precedent. Colorado has no affirmative obligation to outlaw marijuana simply because the drug is illegal under federal law. Thus, the best Nebraska and Oklahoma can hope for is for Supreme Court to hold that Colorado is preempted from regulating commercial marijuana activities in its state. Such an outcome, however, hardly seems likely to reduce the complained‑of influx of Colorado-sourced marijuana into Nebraska and Oklahoma.
Time will tell how this interstate rift is resolved. There is no guarantee that the Court will allow the suit to proceed; it may well deny the states’ motion for leave to file a complaint, and that would be the end of the matter. If the Court does take the case, it could be years before it reaches a resolution.
Keywords: litigation, marijuana, Controlled Substances Act, legalization, young lawyers
— Scott Klausner, Paul Hastings LLP, Los Angeles, CA