Last week AGs from Nebraska and Oklahoma filed a motion in the U.S. Supreme Court seeking leave to bring a lawsuit challenging Colorado's Amendment 64, and related implementing regulations, which have established a regulatory framework allowing for the personal sale and consumption of marijuana. (Pursuant to Article III, § 2, cl.2 of the U.S. Constitution, and 28 U.S.C. § 1251(a), the Supreme Court has original and exclusive jurisdiction over cases and controversies between two or more states.) The AG plaintiffs argue that Amendment 64 to the Colorado Constitution violates the U.S. Controlled Substances Act (CSA) and is therefore unconstitutional under the Supremacy Clause.
The AGs argue that with the CSA, Congress made a clear effort to eliminate and prohibit commercial transactions for marijuana and a range of other drugs. The AGs argue that even though the CSA does not preempt all state law on the issue, Section 903 indicates a clear Congressional intent to preempt any state law that directly conflicts with the provisions of the CSA. As Amendment 64 seeks to permit the establishment of a commercial regulatory framework for marijuana, the AGs contend that it is the very type of state law preempted by the CSA. The AGs expressed concern that Colorado allowing the establishment of a commercial marijuana industry—as opposed to simply decriminalizing personal use of marijuana—will cause an increase in the amount of marijuana produced, and thus an increase in the amount that flows through informal channels, from Colorado into neighboring states where its use and sale remain illegal. The AGs argue that combating this increased flow will deplete their states' fiscal resources, and strain their criminal justice systems.
In response to the lawsuit, Colorado AG John Suthers vowed to "vigorously defend" Amendment 64, indicating that Nebraska's "primary grievance stems from non-enforcement of federal laws regarding marijuana, as opposed to choices made by the voters of Colorado."
States will be closely watching to see how the Supreme Court addresses this case. AG Bob Ferguson of Washington State, where the commercial sale and use of marijuana was also legalized through a ballot initiative, indicated that he was "disappointed that Nebraska and Oklahoma took this step to interfere with Colorado's popularly enacted initiative to legalize marijuana." AG Ferguson echoed AG Suthers' sentiments, and promised to "vigorously oppose any effort by other states to interfere with the will of Washington voters."
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