States Claim Colorado Marijuana Laws are Unconstitutional

Earlier this week, Oklahoma and Nebraska filed a motion and complaint with the U.S. Supreme Court challenging Colorado’’s implementation of Amendment 64, the state constitutional amendment legalizing the cultivation and sale of marijuana. According to the brief, both Oklahoma and Nebraska have suffered damages as a result of Colorado’’s legalization of marijuana in the form of increased costs for law enforcement because of the diversion of marijuana from Colorado into neighboring states. The U.S. Supreme Court has original and exclusive jurisdiction over all controversies between two or more States. 28 U.S.C. Sec. 1251.

Plaintiffs argue that Colorado’’s actions in legalizing and regulating marijuana, a schedule 1 drug under the federal Controlled Substances Act (“CSA”), violates the Supremacy Clause of the U.S. Constitution. Plaintiffs concede that the CSA was not intended to “occupy the field” to the exclusion of state laws on drug enforcement, but they argue that a “positive conflict” exists between federal drug laws and Colorado’’s marijuana laws such that they cannot consistently coexist. Moreover, Plaintiffs claim that Colorado has not simply decriminalized marijuana or exercised prosecutorial discretion, but instead that it has affirmatively authorized conduct prohibited by federal law. “”Colorado state and local officials, who are now required by Amendment 64 to support the establishment and maintenance of a commercialized-marijuana industry in Colorado, are violating the CSA.””

Of particular interest to anyone that has tried to navigate the complicated and Balkanized model of state alcohol beverage laws (a direct outgrowth of the 21st Amendment) is Plaintiff’’s claim that, due to federal drug laws, there is no room for ““a patchwork of state and local pro-drug policies and licensed distribution schemes throughout the country which conflict with federal laws.””

Colorado’’s attorney general has 60 days to file an opposition to Oklahoma’s and Nebraska’’s motion.

The Motion for Leave to File Complaint, Complaint, and Brief can be found here.