Marijuana

Colorado Defends Its Right to Legalize Marijuana

Attorney General Cynthia Coffman responds to Nebraska and Oklahoma's lawsuit.

|

Jacob Sullum

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."

Advertisement

NEXT: D.C. Entrepreneurs Want to Make Abortion Clinics More Like the Spa

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. “Your citizens do not do drugs because they live next to Colorado, but because they live in Nebraska or Oklahoma. “

  2. “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.”

    Can we give it a whirl and see?

  3. And hopefully the Court will respond with a resounding, “Duh”.

  4. A state is simply not obligated to enforce federal law. A state’s agents are not federal agents.

  5. . . . violates the Controlled Substances Act (and therefore the Supremacy Clause)

    so, why hasn’t this been dumped for lack of standing? I could see the federal government having standing, businesses/individuals *within* the state having standing, but not a completely separate state.

    1. Standing is pretty easy to establish, they have alleged an injury even if we all know it’s bullshit.

  6. 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.

    OTOH, that is *exactly* the argument the federal government uses to justify drug interdiction efforts in other countries and in extra-territorial waters.

    1. Well, in those other countries they do so with the (nominal) consent of the governments of those countries.

  7. The incoherence of the neighboring state’s position is so manifest that I have to believe this pure PR, and nothing more.

    Unfortunately, this is just the kind of case that can create some truly terrible precedent.

  8. Here’s where the plenary Commerce Clause causes headaches. If you argue that the CSA prohibits interstate trade in marijuana, under the expansive definition of the Commerce Clause, that means that states are not allowed to regulate intra-state commerce in marijuana, either, under the “dormant” Commerce Clause, because that intra-state commerce is actually interstate commerce because it affects, in the aggregate, interstate commerce.

    If they are serious, they have to conclude that, at most, states are allowed to outlaw personal possession (even that is doubtful, as possession also affects, in the aggregate, interstate commerce). Any offenses that go to commerce in marijuana (production, intent to distribute, etc.) are subject to federal, and only federal, enforcement.

  9. “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.'”

    In that case, Nebraska and Oklahoma are infringing on an enumerated power of Congress by way of the Commerce Clause–according to the Gonzales v. Raich…

    Do I understand that properly?

    I’d love for the Supreme Court to overturn a hundred years of terrible rulings on the Commerce Clause, but they’re not about to overturn Marshall, are they.

    It’s so easy to go in the wrong direction–and so hard to unwind all those mistakes later.

    Why can’t everything be easy?

    https://www.youtube.com/watch?v=czY9kWNXDDI

  10. I’m surprised they haven’t declared Colorado plates to be probable cause.

    1. OH they have, they have. My wife and I, in the MInivan, with the kids, the whole shebang, left Colorado SPrings last july for Austin, TX.
      We were pulled over 3 times, for nonsense reasons, (In TX) not once issued a ticket, as soon as they saw all the kids in the van, and i am smart enough to be a straight laced looking dude, they let us go.
      Clearly a fishing expedition.
      Kids were a great cover, i brought my brother a good amount, since its expensive or crappy in Texas.
      But yes, Colorado tags are nervous when you leave the stae, except NM, they dont give a shit.

Please to post comments

Comments are closed.