States of Nebraska and Oklahoma v. State of Colorado
As you are probably aware, the State of Colorado legalized (to a certain
extent) the recreational use of marijuana, and the associated marijuana
industry. Legalization occurred through an amendment (Amendment 64) to
the Colorado Constitution, which voters approved in November, 2012. The
first stores selling recreational use marijuana opened January 1, 2014.
Some people, for example, the Attorneys General of both Nebraska, and
Oklahoma, have a problem with this. This is evidenced by the two states
recently filing a joint lawsuit against the State of Colorado, in the
United States Supreme Court, asking the court to enjoin further implementation
of the Amendment and its related legislation.
Regardless of your position on marijuana legalization, this is a lawsuit
which for the future of state sovereignty, must fail.
A Threat to States' Rights?
The approximately 80 page lawsuit and accompanying brief (available at
this link) claims, among other things, that the legalization of marijuana in Colorado
created a "dangerous gap in the federal drug control system",
undermines Nebraska's, and Oklahoma's own marijuana bans, "drains
their treasuries", and places stress on their criminal justice systems.
See, Complaint, pages 3-4, paragraph 7.
The lawsuit asks for a declaratory judgment stating that Amendment 64 and
its accompanying legislation are unconstitutional under the U.S. Constitution,
and therefore unenforceable. If the injunctive relief requested is granted,
it will strike a body blow to the idea of state sovereignty. Worse, being
as this action is at the United States Supreme Court already, whatever
precedent which is set is going to be very difficult to overturn.
There are several reasons, however, to believe that this lawsuit will fail.
Doctrine of Standing
The first hurdle the plaintiffs must get over (and that which this article
will focus upon) is that of standing. The doctrine of standing generally
says that in order to be allowed to proceed with a lawsuit, a plaintiff
must have some legally or equitably recognized right or interest in the
subject matter. While states sue one another all the time, they do so
in order to enforce their own rights. The real issue in this case is whether
a state can stand in the place of the federal government, or that of a
person directly harmed by the law.
I believe the answer is likely, "No", because in this lawsuit,
it is clear that Nebraska and Oklahoma are trying to stand in the place
of the Federal government. That is, it is the Federal government's
(enforceable) laws which are allegedly being violated by the Colorado
laws. (Although Nebraska and Oklahoma's marijuana laws are also violated
by the Colorado laws, Nebraska and Oklahoma do not have authority to enforce
their own laws in Colorado.) If the Department of Justice wishes to bring
an action against Colorado, that is one thing. But Nebraska and Colorado
are attempting to assert the federal government's rights at this point,
not their own rights.
If, or more likely, when the Plaintiffs' standing is challenged, they
could argue they have standing to sue because as states within the Union,
they have a vested interest in ensuring that all laws comply with federal
law. That argument will likely fail as standing requires more than a generalized
concept of interest in the subject matter. Further, if this were an appropriate
basis for standing, then
anytime the Attorney General of a state dislikes
any law of another state, and can make an argument that such a law contradicts
federal law, then the Attorney General who dislikes the law could sue.
For that matter, I cannot see how such lawsuits could be limited to suits
initiated by States. Such a suit based on such a general interest could
be initiated by anyone, in any state. Katy bar the door in such a case.
Do Colorado's marijuana laws cost Nebraska taxpayers?
Alternatively, the Plaintiffs may argue their standing comes from the financial
harm their states are suffering because of all the extra money they are
each spending in enforcing their own laws which prohibit marijuana. That
argument must fail, also.
If financial harm done in one state allegedly merely due to the laws of
another state failing to comply with federal law creates a basis for states
suing each other for injunctive relief, without giving consideration to
the underlying federal law at issue, then again, Katy bar the door on
lawsuits against the states by
Now, the Plaintiffs here may argue their standing comes when they are sustaining
harm due to another state having a law which contradicts federal law.
But again, this argument places the Plaintiffs back in the position of
trying to assert the rights of the federal government. That argument too,
is likely to fail.
State Sovereignty and the Tenth Amendment
If this lawsuit is allowed to succeed, it will be a declaration that the
Plaintiffs had standing to sue. That will be a dramatic dissolution of
state sovereignty. What is the point of creating state boundaries, and
separate state legislatures, and other governmental districts, if they
are going to be allowed to sue each other over each other's laws?
If it is held that Nebraska and Oklahoma have standing to sue Colorado
on this issue, what is to keep Nebraska from suing California over California's
abortion laws? What is to keep California from suing Nebraska when California
believes Nebraska's gun laws are in violation of federal law?
Moreover, as your mother likely said, be careful for what you wish for,
as you just might get it. What is going to happen if Nebraska and Oklahoma
prevail on this lawsuit? Where does that leave Colorado's marijuana
policy? I argue that it leaves Colorado without a marijuana policy. That
is, marijuana may become an unregulated product in Colorado, which is
instantly transformed into the wild wild west when it comes to marijuana.
Even if that does not happen automatically, the Colorado legislature could
certainly remove marijuana from its controlled substances list. In such
a case, a joint in Colorado is no different from a pencil. That is certainly
not the result the Plaintiff states are going for in this suit.
Therefore, the better way to handle this matter, is for Nebraska and Oklahoma
to come up with more efficient ways of handling the increase they allegedly
have seen in marijuana trafficking related crimes. For example, cite and
release offenders, instead of arresting them and placing them in jail.
Give them more reasonable bonds, instead of a bond which is frequently
equal to the street value of the drugs seized.
Nebraska and Oklahoma have a problem with the federal government's
decision to not sue the State of Colorado, not with the State of Colorado.
As such, this lawsuit is likely to go up in smoke.