States Ask Supreme Court To Find Colorado’s Marijuana Regulations Unconstitutional

The states of Nebraska and Oklahoma have asked the United States Supreme Court to issue a declaratory judgment finding that Colorado’s laws regulating the state-licensed production and sale of marijuana to adults violates the US Constitution.

The suit, filed today by Nebraska Attorney General Jon Bruning and Oklahoma Attorney General E. Scott Pruitt, alleges that marijuana is being diverted into their states from Colorado, causing plaintiffs to suffer “irreparable injury.”

The Attorney Generals contend in their suit: “Plaintiff States are suffering a direct and significant detrimental impact – namely the diversion of limited manpower and resources to arrest and process suspected and convicted felons involved in the increased illegal marijuana trafficking or transportation.”

They are asking the Supreme Court to strike down Colorado’s law on the basis that it is “fundamentally at odds” with the federal Controlled Substances Act. They allege, “The diversion of marijuana from Colorado contradicts the clear Congressional intent, frustrates the federal interest in eliminating commercial transactions in the interstate controlled-substances market, and is particularly burdensome for neighboring states like Plaintiff States where law enforcement agencies and the citizens have endured the substantial expansion of Colorado marijuana.”

They seek “a declaratory judgment stating that Sections 16(4) and (5) of Article XVIII of the Colorado Constitution are preempted by federal law, and therefore unconstitutional and unenforceable under the Supremacy Clause, Article VI of the U.S. Constitution.” The US Attorneys are also asking the State of Colorado “to pay the Plaintiff States’ costs and expenses associated with this legal action, including attorneys’ fees.”

The suit does not ask for the Supreme Court to enjoin any other states’ laws regulating the production or dispensing of cannabis for either social or therapeutic purposes, though it is possible that the Court’s actions may have implications for those laws going forward. To date, four states have approved measures allowing for the regulated production and sale of cannabis to adults. Twenty-three states have approved measures allowing for the use of the plant for therapeutic purposes.

Colorado Attorney General John Suthers responded to the suit, stating: “[I]t appears the plaintiffs’ primary grievance stems from non-enforcement of federal laws regarding marijuana, as opposed to choices made by the voters of Colorado. We believe this suit is without merit and we will vigorously defend against it in the U.S. Supreme Court.”

Commenting on the suit, NORML Legal Counsel Keith Stroup said, “This suit is more political theater than a serious legal challenge. These two conservative state attorneys general know they are losing this fight in the court of public opinion, so they are hoping the Supreme Court will intercede.”

Stroup further noted that in recent days a majority of Congress approved language limiting the ability of the federal government to interfere in the implementation of state-sponsored marijuana regulatory schemes. He added: “The majority of Americans, including 55 percent of Colorado voters who endorsed this policy in 2012, support regulating cannabis in a manner similar to alcohol. The Attorney Generals pushing this lawsuit are not only out-of-step with existing public opinion and emerging political opinion, but they are also clearly on the wrong side of history.”

87 thoughts

  1. well no s##t look how many lumber companies they’re are in these states hemp would kill business for them. its obvious that the politicians are being bought by lumber companies just like the prohibition

  2. I think this is great. These two idiots are doing us a favor. Any argument about cannabis that is forced out of the dark where it can be debated honestly will always end well for us. I dare anyone to stand up and defend the CSA in public, under oath(with the penalty of perjury), on the record, while on camera. Such an event would attract a very large audience and is axactly what is needed. While OK,and NE objects to the unconstitutional nature of Colorado’s laws, it becomes impossible to avoid examining the unconstitutional nature that the CSA now stands at. The truth is a powerful tool in front of a lie.

  3. Oklahoma and Nebraska just aah sittin on their brains.Stand up let the blood flow back in them there cheeks.Now let the air flow out. That better.

  4. @Odin – You’re right! It is very obvious that the people of Nebraska and Oklahoma want to be able to consume marijuana. It is really a pity for the people that live in those states. Those in power there should be shown the border; to Iran perhaps… They don’t represent American ideals and that is for certain!

  5. “The love of money is the root of all evil”

    Are you free or not?…it’s up to you to decide whether your Martini chugging Stogie Choking Master$ have dominion over your body and mind?

    Personally, I choose what goes into my body due to my personal recognition of the fact that I was born free…and being free is what America is all about, eh?…?…repeat after me?…I was Born Free!…or get ready to lick some boot?

  6. This has nothing to do with the lumber, The suit claims that its costing them to much money to arrest trafficers. The attorney generals are looking for ways to increase the amount of federal funding they get from the federal government. They want to put more people in prisons so they can get more money into the privatized prison system because non violent drug offenders are much easier to arrest than actually doing real police work and taking the real criminals off the streets.

  7. with it clearly written in the CO bill, Federal government honor the wishes of the states that choose to have marijuana legal, Kansas and Oklahoma will have no help from the Feds in this bullshit finger point blame game. they are just wasting time and more of tax payers money. ( as always )

  8. I think the fact that Kansas isn’t in this says something, I 70 being a heavy drug corridor. They probably didn’t want to look like fools, as these two AGs have made themselves and their states look.

  9. Ok if these two AGs win it could be a disaster, this much is true. However, at this point I think total and utter panic on our part might be premature.

    Firstly, there is no guarantee that SCOTUS will accept the case. They often choose to ignore hot-button issues by not hearing cases like this.

    But even if they hear the case, there are other possible outcomes other than total disaster for the anti-prohibitionist community. For example, the AG’s could lose, based on the law. It is far from clear that they have a solid case. For example, the CSA reads in part:

    No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together.

    Since the CO statute does not prohibit the federal government from enforcing the CSA they can argue that there is no conflict and that the two can stand together. And in fact that is exactly what has been happening.

    Further, the CO AG may decide to attack cannabis’s Schedule 1 status, and argue that under the rules established by the CSA the US AG should have evaluated cannabis against these criteria:

    (1) Its actual or relative potential for abuse.
    (2) Scientific evidence of its pharmacological effect, if known.
    (3) The state of current scientific knowledge regarding the drug or other substance.
    (4) Its history and current pattern of abuse.
    (5) The scope, duration, and significance of abuse.
    (6) What, if any, risk there is to the public health.
    (7) Its psychic or physiological dependence liability.
    (8) Whether the substance is an immediate precursor of a substance already controlled under this subchapter.

    Since this obviously never happened (even though repeated requests to do so have been made which should have triggered such an objective re-evaluation) it can and should be argued that maintaining cannabis’s schedule 1 status in the face of scientific proof of its medical value and relative social innocuousness is itself a violation of federal law.

    If a court — especially the Supreme Court — could be convinced that cannabis’s schedule 1 status is itself a violation of the CSA then that would be a good thing for this country. If you read the CSA, especially the section that defines the criteria for schedule 1 and the section that outlines the duties of the US AG regarding maintenance of the schedules, then it will be hard for you to conclude differently.

  10. I lived in Nebraska for a while.There were six bars on a 200 yd Main Street.
    The bars opened at 6:00am.It was normal for people to start drinking that early.Everything revolved around the bar.I knew a lot of people that liked weed,but most people drank a lot.I think since Colorado didn’t give the small bordering towns money the first time they cryed about a few more weed arrestes,they’re going to try for more federal money,or maybe Colorado will throw them some change & watch them grovel for it.

  11. So, “The Children Of The Corn” are saying that it’s unconstitutional for States to exrecize their tenth ammendments rights?

  12. I need some assistance in getting my husband out of Omaha Jail. Nebraska police are out of control!!! He was arrested yesterday morning travelling from Illinois. He had a user amount and they treated violently by the officer who grabbed him by his throat, pulled him out of the vehicle and then slammed him on the ground. My husband is a peaceful man and did not deserve this kind of treatment. His family needs him home for Christmas.

  13. Will everyone who still believes Justice resides in our Courts raise their hand?

    I don’t see many?

    The Majority says Yes!…and our Overruling class Overrules our decision…in The Land of the Free?…you gotta be jackin’ me!

  14. I am not as comfortable as others over this being refused or otherwise shot down by the Supreme Court, given that there is a majority of conservative Catholics.

    I think there should be push to get Obama to reclassify it a Schedule 5 drug, before it gets to the Court. Actually, given that alcohol and tobacco are exempt from this scheduling, I think that marijuana and certainly hemp, should be exempt as well, but that logical, intelligent move is beyond our Congress.

  15. I agree with “Dusty Relic. Also, consider going directly to SCOTUS with no conflicting lower court decisions increases the likelyhood that they will punt the case.

  16. It may seem incredulous, but there are still dry counties in the US. I couple of times after 10-12 hours on I 95 going from PA to FL, I was extremely disappointed to find I couldn’t chill out with a six pack in my motel room.

    I once flew into Oklahoma and overheard an unhappy traveler confounded to find he couldn’t buy booze in the county he had arrived in.

    In the most bizarre story, I once killed a 12 pack at a gig playing lead guitar in Texas. I got into one of those speedy alcohol mental states Edward Van Halen seems to relish. I stood up there in a dry county in front of hundreds of people killing a 12 pack, and no one said a word to me. The crowd really got into it when I played the solo to Johnny B. Goode with the guitar behind my back. No one said a word to me!

    Texas is odd. Most places EVERYONE ignores any speed limits, but if you happen to drive through one of those no nonsense counties, suddenly speed limits are taken quite seriously, no nonsense is tolerated. I guess it brings in a lot of money for those counties.

  17. SgtStorm says:
    December 22, 2014 at 3:13 am

    It is my opinion that the Feds threw the case so the onus would be on the courts. And of course the FEDs might appeal. Further delaying action.

  18. @ Charles Eggen,

    I’m also a bit concerned about the legal challenge. The prohibitionists appear to be gearing up for more of a fight than we’ve seen from them in the last couple of years.

    I’ve been concerned with the articles I’m seeing in the media lately, from newspapers from around the country. There is a steady drumbeat of anti-marijuana news or opinions appearing here and there. Some of them are subtle in their attacks, some almost hysterical.

    I believe it’s sunk into the prohibitionists’ tortured brains that MJ just might become legalized nationally some day, and they are finally beginning to fight back with big money.

    Hopefully, I’m wrong, or, even more so, that people will see the propaganda for what it is, and vote legalization. We’ll see.

    In any event, I’m hoping we can add to our victories with more legalized states in 2016. I still think California would be a near death blow to the prohibitionists. And I’m still waiting for New York to get serious about legalization.

  19. Evening Bud says:
    December 23, 2014 at 1:53 am

    I leave this simple phrase everywhere appropriate.

    “Cannabis cures cancer” You can add “Cancer kills 586,000 Americans every year.”

    The more people doing it the better. Flood the zone.

  20. This is no different then then when the U.S. attorney went after Mark Emmrie for selling seeds to US citizens. Why should it be the responsibility of those with different laws to regulate those who break the law in there own sovereignty. Try suing China for copyright infringement, LOL. Why doesn’t Nebraska show a bigger concern for a the meth that is made in that state as well as what gets brought in from Iowa. While Oklahoma is on the verge of legalizing weed at a last ditch effort to save its dwindling economy. But with our current president why not play the victim card and the blame game. That seems to be all he is good at. I bet these two states oppose gay marriage, which is unconstitutional. But then again states rights only matter when working towards your favor. Burn in hell you bible thumping hypocrites.

  21. Dusty Relic should have been an atourney. If I were the Colorado AG, that’s exactly how I would frame my argument. I cannot see how the CSA and The Constitution would be off-limits to the defence since the plaintiff already uses both as grounds for the case.

  22. The Drug cartels and the chemical companies want to continue cannabis prohibition. The prison industrial complex in both states are benefiting financially from their inmate populations’ workloads. How long will americans remain complicit in confiscation without due process, mental health indifference, policing for profit. Leaning towards third world realities here, just because of a broken judicial system?

  23. As far as the treaties that the NE AG brings up, there is SCOTUS precidence:
    with that. “Reid V. Covert.”

  24. Sorry for the earlier post.:

    There is SCOTUS precedence on this treaty business. “Reid V. Covert”.:

    The domestic and international legal nature of these treaty obligations must be considered in light of the supremacy of the United States Constitution over treaties or acts and the equality of treaties and Congressional acts. In Reid v. Covert the Supreme Court of the United States addressed both these issues directly and clearly holding:
    [N]o agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution.
    Article VI, the Supremacy Clause of the Constitution, declares:
    “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof, and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; . . .”
    There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result. These debates, as well as the history that surrounds the adoption of the treaty provision in Article VI, make it clear that the reason treaties were not limited to those made in “pursuance” of the Constitution was so that agreements made by the United States under the Articles of Confederation, including the important peace treaties which concluded the Revolutionary War, would remain in effect. It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights—let alone alien to our entire constitutional history and tradition—to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions. In effect, such construction would permit amendment of that document in a manner not sanctioned by Article V. The prohibitions of the Constitution were designed to apply to all branches of the National Government, and they cannot be nullified by the Executive or by the Executive and the Senate combined.
    There is nothing new or unique about what we say here. This Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty. For example, in Geofroy v. Riggs, 133 U. S. 258, 133 U. S. 267, it declared:
    “The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government itself and of that of the States. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the government, or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent.”
    This Court has repeatedly taken the position that an Act of Congress, which must comply with the Constitution, is on a full parity with a treaty, and that, when a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of conflict renders the treaty null. It would be completely anomalous to say that a treaty need not comply with the Constitution when such an agreement can be overridden by a statute that must conform to that instrument.[19]

  25. “irreparable injury”?!!

    To WHAT? Nebraska Attorney General Jon Bruning and Oklahoma Attorney General E. Scott Pruitt’s Corruption Ring with their D.A.’s, a few dirty Judges taking kickbacks, a bunch of crooked agents and law enforcement, their local and foreign cartels and the subsequent flow of violent, dirty, illegal narco traffic of your preferred choice and all the asset forfeitures that go with it? Oh but it’s COLORADO spreading all the mayhem?! Talk about an extinction burst tantrum.

    I just can’t imagine the HUBRIS of their claim;

    “Plaintiff States are suffering a direct and significant detrimental impact – namely the diversion of limited manpower and resources to arrest and process suspected and convicted felons involved in the increased illegal marijuana trafficking or transportation.”

    The state of Colorado’s Affirmative Defense should be, “Reduced arrest of those in possession of non-violent marijuana? Great. Sounds like Colorado is exporting PEACE and GOOD WILL to MANKIND. Plaintiff’s claims are fraudulent and baseless considering recent evidence from N.I.D.A. that shows a reduction of use among teens in states that have legalized, a reduction in violence as well as an increase in socioeconomic stability and cooperation between civilians and law enforcement in states that have legalized.Therefore the violent, prohibitive policies of the states of Oklahoma and Nebraska are in fact causing damages across state lines to the State of Colorado.”
    “The State of Colorado would like to counterclaim on the basis of the unconstitutional scheduling of marijuana under the Controlled Substances Act, as defined as a “dangerous drug without medicinal use.” In conclusion, it is in the combined interest of the majority of Americans, and the great state of Colorado that Oklahoma and Nebraska begin to use their revenue from their state’s hard-earned tax payer dollars on solving real violent crimes like rape and murder instead of backlogging rape kits and offering promotions and overtime to cops that make their quota arresting nonviolent citizens in possession of an unconstitutionally scheduled substance, marijuana, under the Controlled Substance Act. Finally, the State of Colorado requests that the State’s of Oklahoma and Nebraska take nothing from this case, As the prohibitive policies of their states are causing collateral economic damages across our state lines in the form of arrested non-violent socioeconomic development and equality, by disproportionately incarcerating minorities and spreading civil unrest and discontent across their state lines through unconstitutionally prohibitive enforcement, thereby violating the Constitutional right of the Citizens of Colorado for their pursuit of life, liberty and happiness. Furthermore, under Federal Rules of Civil Procedure, the State of Colorado Moves the Court to Sanction the Attorney’s Generals of Nebraska and Oklahoma for willfully pursuing a fraudulent case with gross and reckless negligence for the purpose of harassment, and Sets the Hearing in Motion for Sanctions no later than 30 days from this date.”

    Do it Colorado. A good Federal Sanction against the Attorneys Generals of Oklahoma and Nebraska will either get’m to shut up… or get’m to spill their guts and reveal their phony claims. Plus it will force them to scramble out their evidence before the period of Discovery drags out.. evidence of which they have nothing but violations of crossing marijuana across state lines against the “guidelines” of the DOJ… A DOJ which will stay the Hell away from this case leading up to 2016 elections. Counterclaim on Constitutional grounds of the scheduling of marijuana and SANCTION the $#!+ out of them.

    FYI, you (Colorado, NORML, et al) can always drop the sanctions just to flush out their defense of your counterclaim and then pursue the counterclaim on Constitutional merits.;-)
    Finally, Raven’s reference to Geofroy v. Riggs could stand to hold up in the Supreme Court, which is already looking for ways to play out the endgame on International Treaties.
    Oklahoma and Nebraska may have shot themselves in the foot with this case. The appeal could hit right when the U.S. Government v. Picard, et al, moves out of Federal court and appeals to the Supreme Court, RIGHT when California, Maine and Nevada are about to legalize…
    I might have to break out the Pot-poppers TM for this one…

  26. Clarification on Colorado’s affirmative defense;
    “Colorado is setting an example of reducing arrests of nonviolent marijuana possessions and increasing arrests on violent crimes such as rapes and murders. The claim that Nebraska and Oklahoma are “forced” to increase arrests on nonviolent marijuana possessions is a fraudulent claim based on a groundless policy of prohibition and the unconstitutional scheduling of marijuana under the Controlled Substances Act. Oklahoma and Nebraska are therefore causing collateral damages to Colorado by not directing their resources on violent crimes, and allowing their criminals to spill into the borders of Colorado.”

  27. Taxation without representation is at the heart of the matter for myself. I live in Nebraska I pay taxes and vote as well. John burnings agenda is at the complete opposite spectrum of where many Nebraskans stand. With this being said I see this as an excellent opportunity for Nebraska and its citizens to come together and challenge our state laws. And to become part of the majority of america’s who believes in safe access to medical and recreational marijuana.

  28. How long will americans remain complicit in confiscation without due process, mental health indifference, policing for profit. Leaning towards third world realities here, just because of a broken judicial system? – Mark I

    Until The United States of Kochmerica becomes a purposely failed Nation…or a subsistence/slave supported Dictatorship…or both?

  29. Eric K. Jhonson says:
    December 29, 2014 at 4:18 pm

    The Koch Bros. are anti-Prohibition. Unfortunately it is not their priority when giving money to candidates.

  30. Wow Mary Fallen has lied to her voters I would say again but I was told she was to pass medical but just for the kids with seizures as over 70% of bible belt oklhomans, believed it necessary for our children which it is. I went to high school with her brother as she was a few years olDer but if she had a grandson thst had had seizures since bOrth and couldn’t take a step until 2 and still not spike and if she had to watch her son go through the pain of watching his first born son seize daily we would have medical Marijuana in oklahoma. It seems that they thought they, the politicians, should see how other states set theirs up to be run is how she skated but I will cut her no slack. These politicians are getting pockets padded by pharmaceutical companies as my pain meds are over 700 a month and I’m on disability so you can imagine I think I heard 50 million Americans on disability and we are broke why? Just like the oil moguls dropped their prices to shut down our drilling g and our families jobs, noticing oil field lay offs, and then when we are shut down by cut throat prices they will raise them back up to 5.00$ a gallon. America is getting stupid and this is why I don’t play with politics but I am physically dependent on opiates which have ruined 8 years of my life and I still hurt everyday and if they got stole I would die in withdrawals and that’s eat the kids here in Oklahoma are stealing from parents or buying off the street and try yo get help to recover or find something like oh shit medical Marijuana which has no withdrawals and you can’t overdose. I think we as a country are a, bunch of loser because we know that pot fights cancer and we’d rather let our citizens die or face horrible yet expensive cancer treatments that just kill so quickly many times that legalize something God put on this planet to help us. I know he didn’t put Mary Fallen here to help but then maybe to know her brother maybe scares her. He is a well kept secret. I feel like I have the right to sue Oklahoma for denting me the tight to proper medical care and the ability to fight oft cancer cells along with the damage my grandson suffers daily. I bel I eve I will call my lawyer aND see if she can be held accountable for neglecting the rights of the Oklahoma xitizens. I hope I get the chance to tell her that it should have been her grandson not mine and that I wish she could live with what oklahoma pain management has done to my 40s and now into my 50s because I would not wish opiates on my worst enemy but I wouls wish that everyone could benefit from the medical help proven effective by Marijuanna. I guess the politicians just think we all want to set around stoned like many of them do drunk but I never even liked being high but I did like my life before pain killers stole it from me….

  31. As a Missouri business man, I had to chuckle when Gov. Hickenlooper recommended that other states wait a few years and see what happens in Colorado. Roots. Big Roots! Time to break out the snow skis!

  32. They call them red states because they are actually commies that are paid by the black markets to squash freedom and rights from Americans. Democrats or Republicans don’t think it matters much which party is in as long as they have the ability to listen to the american people and do whats right.

  33. Meanwhile, I suspect most of the jurists involved had a drink or two with lunch, thus impairing their judgment.

    Hypocrisy, thy name is Congress.

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