Do Nebraska and Oklahoma Have a Strong Case as They Challenge Colorado's Marijuana Laws?

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A lawsuit Nebraska and Oklahoma filed against Colorado last year in the U.S. Supreme Court over the Centennial State’s legalization of marijuana is flawed, a legal scholar who is an expert on federalism and drug laws said at an event in Seattle on Tuesday.

“Their characterizations of what Colorado and these other states are doing is misleading,” said Robert Mikos, director of Vanderbilt Law School’s program in law and government. He spoke during a panel discussion at the National Conference of State Legislatures legislative summit.

Nebraska and Oklahoma filed the lawsuit last December. They argue that by legalizing recreational marijuana Colorado has “created a dangerous gap in the federal drug control system enacted by the United States Congress.” Nebraska and Oklahoma also claim that marijuana is flowing out of Colorado and into their states, which they say undermines their own bans on the substance, burdening government budgets and causing crime.

Key to the case Nebraska and Oklahoma are trying to make is the concept of preemption. This concept is rooted in the U.S. Constitution’s Supremacy Clause, which holds that when state and federal laws conflict, the federal laws trump, or preempt, those of the state.

Voters in Colorado approved a ballot measure, Amendment 64, in 2012, which made it legal for people over 21 to possess limited amounts of pot. Sales at state-regulated retail stores began last January.

Meanwhile, marijuana remains outlawed under the federal Controlled Substances Act. But, according to Mikos, states that have legalized it recreationally have acted within their legal authority.

He pointed out that Congress cannot force states to pass laws, including marijuana bans. This is because of a legal principle known as the “anti-commandeering rule.” Take that logic another step, he said, and it’s also evident that Congress can’t stop states from repealing bans that they no longer want to keep. “Under the Constitution states have no obligation, whatsoever, to lift a finger against private citizens, even when they violate federal law,” Mikos said.

States such as Colorado, however, have gone further than just dropping their bans.

They also regulate marijuana. Mikos noted that “when it comes to regulation, the federal government really is supreme” and that a state’s power to impose requirements around licensing and taxes for pot sales is at “Congress’ mercy.”

The lawsuit Nebraska and Oklahoma have filed argues that Colorado’s policies are at odds with Congress’s goals for restricting marijuana. But Mikos sees it another way. He said Colorado is restricting the market for pot, just not with an outright ban.

For example, while taxes might not be as severe as criminal penalties they “will still serve to increase the price of the drug.”

“That price increase,” he added, “should help suppress demand for the drug, thereby serving congressional purposes.”

And if a court were to side with Nebraska and Oklahoma, he said that the ruling would not lead to the reinstatement of Colorado’s old criminal prohibitions against pot anyway. It would instead eliminate the last remaining civil restrictions on the state’s marijuana market.

“You think marijuana is cheap and accessible in Colorado now, just imagine how cheap and accessible it would become if a court blocked Colorado from requiring vendors to get a license, from checking patron’s IDs, or collecting marijuana taxes,” he said. “This would be a perverse result,” he added. “It’s one that would only widen the gap between state and federal policy.”

It is still unclear whether the case brought by Nebraska and Oklahoma will advance in the Supreme Court. The Colorado Attorney General’s Office filed a brief in March urging the court to throw out the complaint. And on May 4, the court invited U.S. Solicitor General Donald B. Verrilli Jr. to file a brief in the case expressing the views of the United States.

Along with Colorado, Alaska, Oregon, Washington state and the District of Columbia have also legalized recreational marijuana use.

Bill Lucia is a Reporter for Government Executive’s Route Fifty.

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