Since Colorado became one of the first states to formally legalize recreational marijuana, there have been many attempts to stop legalization in its tracks. But the most interesting, and arguably the most promising attempt, was Nebraska and Oklahoma’s lawsuit against Colorado, which allege that since Colorado legalized weed, both states face an increased burden on their law enforcement due to marijuana coming in from Colorado. The Supreme Court dashed both states’ hopes on Monday when it declined to hear the case, but still this might not be the end of the story.

The lawsuit claims that Colorado’s marijuana legalization is unlawful for a number of reasons, from violating the Supremacy Clause of the Constitution, to going against international treaties adopted by the United States. Congress passed the Controlled Substances Act during Nixon’s presidency, which categorized Marijuana as a Schedule I drug making it illegal and placing some of the strictest restrictions on its use and sale. The Supremacy Clause of Article IV of the Constitution states that federal law is the “supreme law of the land” and supersedes state laws, which effectively makes Colorado’s legalization unconstitutional.

The lawsuit claims:

In passing and enforcing Amendment 64, the State of Colorado has created a dangerous gap in the federal drug control system enacted by the United States Congress. Marijuana flows from this gap into neighboring states, undermining Plaintiff States’ own marijuana bans, draining their treasuries, and placing stress on their criminal justice systems.

However, in light of many states’ efforts to legalize marijuana, the Department of Justice (DOJ) issued guidance that largely allows states to move forward without federal interference. Deputy Attorney General James Cole issued a memo highlighting eight enforcement priorities, including things like preventing marijuana distribution to minors and stopping marijuana-related violence. But the memo notes that “Outside of these enforcement priorities, the federal government has traditionally relied on states and local law enforcement agencies to address marijuana activity through enforcement of their own narcotics laws.” He further says that if state laws sufficiently regulate marijuana to deal with the DOJ’s enforcement priorities, then the federal government will largely leave states alone. This essentially meant that states would be free to legalize as long as they created a strong enough regulatory system to protect the priorities outlined by the DOJ.

So that explains why the federal government didn’t stop the legalization, but what happens when others challenge the law? That’s how we got here, with Nebraska and Oklahoma suing Colorado after voters passed Amendment 64 back in 2012. The lawsuit was sent directly to the Supreme Court, which has “original jurisdiction” over disputes between states, meaning that such cases begin at the Supreme Court and do not need to go through the traditional appellate process first.

After the Supreme Court declined to hear the lawsuit, Justices Thomas and Alito–both of whom are pretty conservative–dissented primarily because of the nature of the court’s original jurisdiction. In his dissent, Justice Thomas writes, “Federal law is unambiguous: If there is a controversy between two States, this Court—and only this Court—has jurisdiction over it.” He argues that, regardless of his or the other justices’ desired outcomes, the court has a duty to hear the case because it is the only body that can resolve these disputes.

But others have noted that the Nebraska and Oklahoma’s attorneys general still may be able to take the case to a lower court. Robert Mikos, a professor at Vanderbilt University Law School, told the Cannabist that the two states could pursue their case in a district court. Prior to the Supreme Court’s decision, Solicitor General Donald Verrilli filed a brief calling for them to not take up the case. He claimed that doing so would be a “unwarranted expansion of the Court’s original jurisdiction” because it would need to argue that one state’s laws caused the illegal actions of people in bordering states. He also argues that hearing the case would be unwarranted because the dispute could be handled by a circuit court.

Many were not surprised when the court ultimately declined to hear the case. Cases between states are typically pretty rare and the court has often refused to hear them in the past. As the Federal Judicial Center notes, “Since 1960, the Court has received fewer than 140 motions for leave to file original cases, nearly half of which were denied a hearing.” Now it’s up to the Nebraska and Oklahoma to decide whether they want to pursue the case in a different court.

Kevin Rizzo

Kevin Rizzo is the Crime in America Editor at Law Street Media. An Ohio Native, the George Washington University graduate is a founding member of the company. Contact Kevin at krizzo@LawStreetMedia.com.

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Colorado voted to legalize recreational marijuana in 2012, and officially started selling it in the beginning of this year. Now, almost a year later, Colorado is experiencing some backlash for its choice to legalize. Two of Colorado’s neighbors–Nebraska and Oklahoma–are suing the state because of the impact of legal marijuana within their borders.

Nebraska and Oklahoma have filed a lawsuit petitioning the Supreme Court to declare Colorado’s legalization of marijuana unconstitutional. Leading the charge are Nebraska and Oklahoma’s Attorneys General: John Bruning and E. Scott Pruitt.

The reason that they’re bringing it before the court is that marijuana is still illegal under federal law. Nebraska and Oklahoma’s constitutional argument has to do with the supremacy clause, which essentially says that federal law supersedes state law. Still it’s going to be a tough argument to make, given that Nebraska and Oklahoma are trying to make changes to what goes on within another state. Cases that center on disputes between states are pretty rare–although they do definitely fall within the jurisdiction of the Supreme Court. Since 1960, only 140 such cases have been brought in front of the Supreme Court, and they’ve refused to hear about half of those. The court has not yet said whether or not they’ll consider this one.

While Nebraska and Oklahoma are making a constitutional argument, there are more practical reasons why they don’t want Colorado to have legalized weed anymore. Both states share borders with Colorado, and weed keeps creeping over them. Both states are claiming that this illegal influx is making it difficult to enforce their individual anti-marijuana polices, as well as putting stress on their law enforcement personnel. That’s understandable–there is some evidence to indicate that weed is coming out of Colorado and into other states. As the New York Daily News pointed out:

But the Rocky Mountain High Intensity Drug Trafficking Area wrote in a recent report that the amount of Colorado pot seized on highways increased from an annual average of 2,763 pounds between 2005 and 2008 to a yearly average of 3,690 pounds from 2009 to 2013. The weed was headed for at least 40 different states.

That being said, there’s no evidence to suggest that the increase is directly tied to Colorado’s decision to legalize weed. After all, during the majority of the years included in that report, weed wasn’t even legal in Colorado. As Morgan Fox from the Marijuana Policy Project put it,

Marijuana was widely available in Nebraska and Oklahoma well before Colorado made it legal. It would continue to be available even if Colorado were to all of sudden make it illegal again.

Colorado has every intention of fighting the lawsuit–Attorney General John Suthers has even said that it’s without merit.  While it’s still uncertain whether or not the justices will hear this particular case, it’s an interesting look at the ways in which the ability of different states to make new laws affects their neighbors.

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

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