Nebraska, Oklahoma Sue Colorado to Block Recreational Pot

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By William Peacock, Esq. on December 19, 2014 12:00 PM

Colorado has legalized marijuana. Undoubtedly, some of the out-of-staters who cross the border to purchase marijuana will take it back with them when they leave. This causes headaches for neighboring states that do not wish to legalize marijuana -- all of Colorado's neighboring states, to be exact.

That is what the Nebraska and Oklahoma v. Colorado lawsuit is about. Two states that barely border Colorado filed suit in the Supreme Court of the United States on Thursday. (Yay, a case of original state v. state jurisdiction that isn't a mind-numbingly boring water dispute!) They somehow hope that the Supreme Court will allow them to dictate what the law should be in a neighboring state by making a federalism argument -- a creative approach that seems unlikely to work.

Why This Lawsuit Was Filed

According to the two states' complaint, "the State of Colorado has created a dangerous gap in the federal drug control system."

Neighboring states have repeatedly complained, since Colorado's Amendment 64 was enacted, that the marijuana flowing from that state into theirs is straining their resources. That seems to be their issue still, even though their legal argument is all about federalism, reports The Denver Post.

"Nebraska taxpayers have to bear the cost," Nebraska Attorney General Jon Bruning said at a news conference, as reported by the Omaha World-Herald. "We can't afford to divert resources to deal with Colorado's problem."

Oklahoma's Attorney General Scott Pruitt echoed those sentiments in a statement: "Fundamentally, Oklahoma and states surrounding Colorado are being impacted by Colorado's decision to legalize and promote the commercialization of marijuana which has injured Oklahoma's ability to enforce our state's policies against marijuana."

Colorado Attorney General John Suthers vowed to defend his state's legalized marijuana, as did Washington state's Attorney General Bob Ferguson, who said in a statement that he would "vigorously oppose any effort by other states to interfere with the will of Washington voters," reports the Post.

Is There a Federalism Argument?

There is an obvious conflict between state legalization and federal prohibition, which is, of course, the status quo of marijuana legality. But can one state force another state to change its laws to match federal law?

It seems unlikely. It also seems unlikely that two states can press the federalism argument: It's not their fight -- it's Congress' fight, so there would seem to be a standing issue.

To be quite clear, I'm spit-balling here -- when was the last time one state tried to force another state to make something illegal? Did anyone sue Nevada when they started runnin' prostitutes? This is exciting, uncharted, and some might say frivolous territory.

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