In a brief filed on Friday, Colorado Attorney General Cynthia Coffman asks the Supreme Court to reject a lawsuit in which Nebraska and Oklahoma seek to overturn her state's regulation of the recreational marijuana market. Coffman argues that Colorado's neighbors are suing the wrong party in the wrong forum for the wrong reasons. Even if they get the result they claim to want, she says, it will not address their complaint that marijuana bought in Colorado ends up in other states:
A decision in the Plaintiff States' favor will hinder Colorado's ability to channel demand for recreational marijuana into a regulated and monitored market. This is more likely to aggravate, rather than subdue, the cross-border trafficking on which the Plaintiff States' allegations of injury rest.
Unlike the sheriffs who filed an anti-legalization lawsuit in federal court this month, Nebraska and Oklahoma are not trying to negate all of Amendment 64, Colorado's legalization measure. The two states are targeting only those provisions that deal with commercial production and distribution, not the provisions that allow home cultivation, possession, and sharing. They argue that regulating marijuana farmers, edible manufacturers, and retailers violates the Controlled Substances Act (and therefore the Supremacy Clause). But Nebraska and Oklahoma say they are "not suggesting the CSA requires Colorado to criminalize marijuana," a position that would clearly contradict well-established principles of state autonomy. "The Plaintiff States, in other words, are requesting this Court to allow Colorado to legitimize in-state demand for [marijuana] while limiting the State's ability to regulate and monitor its supply," Coffman says. "This is a recipe for more cross-border trafficking, not less."
Nebraska and Oklahoma also are not challenging Colorado's regulation of medical marijuana, which still accounts for most of the legal cannabis market and raises similar diversion issues. That omission is strategically understandable, since medical marijuana has been legal in Colorado since 2001, is legal in 22 other states, and has strong popular support. But the decision to exclude medical marijuana makes little sense in light of Oklahoma and Nevada's avowed concerns and their argument that licensing and regulating cannabis suppliers violates the CSA, which makes no distinction between medical and recreational use.
Even if Nebraska and Oklahoma had a legitimate beef, Coffman says, it would be not with Colorado but with the federal officials who have responded to legalization with prosecutorial forbearance instead of a crackdown or a court challenge. "Because the federal government is responsible for enforcing the CSA, any alleged 'gap in the federal drug control system' is the result of federal, not state, enforcement policy," Coffman says. "The Plaintiff States' quarrel is not with Colorado but with the federal government's 'relaxed view of [its] enforcement obligations under the CSA.'"
Notably, the Justice Department defends its policy by arguing that a more aggressive approach, if successful, would leave marijuana legal but unregulated. As Deputy Attorney General James Cole put it in 2013 testimony to the Senate Judiciary Committee, "What you'd have is legalized marijuana and no enforcement mechanism within the state to try and regulate it. That's probably not a good situation to have." Congress itself has largely endorsed a policy of federal restraint by instructing the Justice Department to refrain from interfering with the implementation of medical marijuana laws.
Coffman also notes that "it is not Colorado's conduct per se that purportedly injures Nebraska and Oklahoma" but "the activity of third parties who illegally divert marijuana across state lines." Since "standing generally cannot be based on 'injury that results from the independent action of some third party not before the court,'" Nebraska and Oklahoma cannot sue Colorado based on interstate smuggling by people whose actions it does not control.
In short, Colorado is not violating the sovereignty of Nebraska and Oklahoma by choosing to allow a commercial supply of marijuana within its borders under certain conditions. To the contrary, Coffman says, "it is Colorado's sovereignty that is at stake here: Nebraska and Oklahoma filed this case in an attempt to reach across their borders and selectively invalidate state laws with which they disagree."