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December 18, 2014

Nebraska and Oklahoma sue Colorado in US Supreme Court over marijuana legalization

As reported in this local article, "Nebraska Attorney General Jon Bruning filed a lawsuit Thursday with the U.S. Supreme Court, seeking a declaration that Colorado’s legalization of marijuana violates the U.S. Constitution."  Here is more on the latest fascinating development in the world of marijuana reform law and policy:

At a press conference Thursday, Bruning said he was being joined in the case by Oklahoma Attorney General Scott Pruitt. "Federal law undisputedly prohibits the production and sale of marijuana," Bruning said. "Colorado has undermined the United States Constitution, and I hope the U.S. Supreme Court will uphold our constitutional principles."

Bruning said he placed a courtesy call to Colorado Attorney General John Suthers before filing the lawsuit. Suthers said in a news release he was not “entirely surprised” to learn of the lawsuit. “We believe this suit is without merit, and we will vigorously defend against it in the U.S. Supreme Court,” he said.

Some Nebraska law enforcement officers undoubtedly will welcome Thursday’s action. Anticipating that the attorney general planned to announce a lawsuit, Scotts Bluff County Sheriff Mark Overman said Thursday he supports the move. "This stuff is illegal here, it’s coming here and it’s had an adverse effect on our citizens and way of life," Overman said. "Nebraska, from highest elected officials on down, should do something about it."...

He blamed U.S. Attorney General Eric Holder for not enforcing federal drug laws in Colorado. "I am adamantly against the spread of marijuana across our country," Bruning said. He said he talked recently with a father who said marijuana was a "gateway drug" for his teen.

Colorado’s legalization of pot use has had a significant impact on Nebraska law enforcement agencies. Many departments, particularly in western Nebraska counties along Interstate 80, have seen spikes in their marijuana-related arrests tied to legally purchased pot that transforms into contraband once it crosses the border. At the western tip of the Oklahoma Panhandle, authorities regularly apprehend travelers coming from southeast Colorado with marijuana.

During a September hearing on the issue in Ogallala, Nebraska, a panel of lawmakers heard law enforcement authorities express concern about the flow of high-potency pot into Nebraska and increasing numbers of impaired drivers and possession by teens as young as 14. "Nebraska taxpayers have to bear the cost," Bruning said Thursday. "We can’t afford to divert resources to deal with Colorado’s problem."

Via the Denver Post, the 83-page SCOTUS filing can be found at this link.

Wowsa (and cross-posted at Marijuana Law, Policy and Reform)!

December 18, 2014 at 04:31 PM | Permalink


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"This case presents an important issue of first impression in the federal courts: whether a prohibition on the possession of firearms by a person “who has been committed to a mental institution,” 18 U.S.C. § 922(g)(4), violates the Second Amendment."


Seems to fit one of your ongoing concerns. As to this, I wonder -- not wanting to read 83 pages -- if there was some on point precedent. Colorado obviously need not criminalize the stuff itself, but it also sets up a regulatory regime that goes a step further. Not sure if a fellow state would have standing to sue. Novel.

Posted by: Joe | Dec 18, 2014 5:29:23 PM

Every year around the Fourth of July, Pennsylvania firework shops advertise in Delaware to sell fireworks. Purchasing fireworks is legal in Pennsylvania is legal as long as you don't remain in the state. Possessing fireworks in Delaware is illegal under all conditions. So the signs are advertising people in Delaware to come to Pennsylvania and buy fireworks, which it is completely legal for them to do. However, once they do that, it becomes illegal to stay in Pennsylvania and illegal to go back to Delaware with them. I kind of feel like this is somewhat like that.

All that being said, this lawsuit is completely without merit. States are under no obligation to enforce federal law. Certainly, other states have no say in what Colorado does with their own internal laws. More importantly, their complaint is with the federal government's choice not to enforce their laws. Given that, a lawsuit against Colorado is completely misplaced.

Posted by: Erik M | Dec 18, 2014 8:46:06 PM

Not that it necessarily changes anything, but Colorado to my understanding isn't merely not enforcing federal law, but actively breaking it by regulation of something illegal under federal law. The claim - I glanced at the thing - seems to be that given this plus the negative effects that result (akin to a polluted river that crosses state lines) - they have standing to sue and grounds on the merits to do so.

Colorado setting up regulations to enforce something that breaks federal law suggests this is a special case, but that still doesn't get the states here what they want unless they specifically have standing. It's a stretch & to my knowledge the courts in recent years haven't be open to stretching here. The two red states support of federalism is duly noted.

Posted by: Joe | Dec 18, 2014 10:14:59 PM

Recent study of marijuana use and school performance and IQ in adolescents. They found nothing, rebutting a flawed Duke University study that failed to control for established confounding factors.


I am not participating much in the marijuana subject because the question is settled, and tilted so far to one side that there is no debate left.

Posted by: Supremacy Claus | Dec 18, 2014 11:25:47 PM

Sometimes reading between the lines is more interesting than the lines.

Lawyers Create Big Paydays by Coaxing Attorneys General to Sue

Suppose there are two sides to the lawyer rent seeking coin.

Posted by: George | Dec 19, 2014 12:36:56 AM

Regardless of whether states have a duty to enforce federal law, it seems clear to me that the Supremacy Clause (not the person) means that the states can't pass a law that outright flouts a federal law. It's not a response that the Executive Branch is not actually enforcing that law. In short, there is no "state nullification" of federal law.

The question then is standing and I think the harms concrete enough to justify it.

Posted by: Daniel | Dec 19, 2014 1:51:14 AM

Plenty of states have laws that flout federal law. Hell, states have laws that flout the federal Constitution. Those laws are unenforceable, but they exist. It's not nullification because the federal government still has the ability to enforce the laws themselves. In fact, they have the ability to enforce them in state court if they wanted to (but they won't want to because they have their own courts).

Now it's entirely possible state regulation of marijuana is preempted by federal law, which is sort of what Joe is suggesting (although I don't think he suggested the true implications). If that's the case, the results are even worse. That would mean no state can have a lesser punishment on marijuana than the federal government (so the states that make it a civil fine would have to change that). Preemption could go as far as to mean that all state laws on marijuana are void (field preemption). After all, you can't force a state to pass a law criminalizing marijuana so the only thing you can do is strike down the law regulating marijuana (which purports to prevent trafficking of marijuana, not encourage it). I'm not sure that's what they want (have Colorado become an unregulated marijuana market).

Posted by: Erik M | Dec 19, 2014 7:02:52 AM

Maybe I'm off kilter here, but why is it the Colorado police's obligation to enforce federal laws? Isn't it federal authorities' jobs to do that? And if that's the case, then isn't the premise for the lawsuit erroneous from the get-go? There is nothing prohibiting federal authorities from busting dispensaries and growers in Colorado.

Posted by: Res ipsa | Dec 19, 2014 10:29:16 AM

Precisely. If Oklahoma and Nebraska are unhappy, they can complain to the President and their congressional delegations.

Posted by: ohwilleke | Dec 19, 2014 10:57:52 AM

There seems to be a misconception by some here.

Colorado doesn't have to enforce federal laws. And, I don't think there is a complete field pre-emption either. Some states have harder drug laws than the federal government, some softer, and this is allowed in either case.

But, Colorado is doing more here. It is setting up a regime that aids and abets the breaking of federal law by regulating an illegal (under federal law) market. This might be good policy, especially if the feds aren't going to do anything. And, Nebraska/Oklahoma very well should find it good policy, except perhaps to the degree Colorado doesn't do enough about leakage to their state.

I think Daniel succinctly says things though I still have doubts the courts would accept the standing argument, even if credible. I would just underline "flout" isn't here some "unenforceable" symbolic thing but actual regulations actively in place.

Posted by: Joe | Dec 19, 2014 11:11:00 AM

Why would Colorado be responsible for enforcing the law for Nebraska and Oklahoma? Wouldn't that enforcement start at the border of the adjacent states?

Posted by: beth | Dec 19, 2014 12:20:03 PM


The standing barrier to get into court is low. The amount of harm might speak to the merits but for standing purposes unless the harm in genuinely de minimis or abstract the states have standing. The states have articulated an actual concrete harm--increased law enforcement costs. That alone should give them standing to sue.

The only issue that might save CO on this point is that they are asking for Original jurisdiction and because of that the parameters about standing are not as well defined. Further, this case seems like a poor candidate for the court's traditional preference to turn the case over to a special master. So I won't guarantee that the court will take the case. But under ordinary circumstances the plaintiff's would have standing in federal court.

Posted by: Daniel | Dec 19, 2014 2:28:31 PM

We are either a nation of laws, or we are not. There are federal laws against the production and sale of recreational marijuana. These state laws are in violation of federal laws and should be struck down by the Obama Justice Department, just saying. I enjoyed reading the post and thanks for sharing! Keep it up! Happy Holidays!

Posted by: John Carter | Dec 19, 2014 6:59:13 PM

@Daniel ... I'm not really disagreeing on the law really, but "under ordinary circumstances" does not cover this situation.

Posted by: Joe | Dec 19, 2014 7:33:46 PM

Full Faith and Credit Clause makes states respect the decision of other states. Married in Colorado means married in Nebraska too. Moving to Nebraska does mean becoming single again.


The exception from a Supreme Court decision is for policy. The legalization of marijuana is big enough to qualify for being a policy. The definition of policy is fuzzy, so Colorado may sue the other states to not arrest anyone buying legal marijuana in Colorado. Good to own property in those border towns, on the Colorado side.

Posted by: Supremacy Claus | Dec 21, 2014 12:43:44 PM

Colorado has an easy way to shut up the two states. Use their national guard and invade and take them over. Then guess what. They are all now Colorado.

Posted by: rodsmith | Dec 21, 2014 10:14:13 PM

Or else, Colorado will become so wealthy, along with its citizens, that citizens of adjoining states will demand to merge with it.

Posted by: Supremacy Claus | Dec 24, 2014 7:02:19 AM

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