The Washington PostDemocracy Dies in Darkness

Colorado’s neighbors say they’re spending too much on minor pot offenses. So maybe they should stop prosecuting them

Sheriff Adam Hayward shows off a selection of confiscated marijuana items in Chappell, Nebraska, on July 1, 2014. (Nikki Kahn/The Washington Post)
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Nebraska and Oklahoma are suing Colorado to put an end to the state's recreational marijuana market. The 83-page lawsuit complains that "the State of Colorado has created a dangerous gap in the federal drug control system enacted by the United States Congress. Marijuana flows from this gap into neighboring states, undermining Plaintiff States’ own marijuana bans, draining their treasuries, and placing stress on their criminal justice systems."

Two central ideas animate the lawsuit. The first is that marijuana is still illegal under federal drug laws, and that the Supremacy Clause of the Constitution prohibits states from enacting local laws in violation of federal ones. The second, as Eugene Volokh notes, is that "the lawsuit is basically a public nuisance 'pot pollution' lawsuit." In other words, Colorado's weed is overflowing the state boundaries into Nebraska and Oklahoma, leaving those states with a mess to clean up.

The Supreme Court may be tempted to take up the case on the basis of the first argument. Justice Antonin Scalia has already tipped his hat on this point, making a coy reference to the Supremacy Clause when asked recently what he thought of Colorado's laws. There's no doubt that laws in Colorado, Washington and soon elsewhere are in direct contradiction of the federal Controlled Substances Act. The Justice Department has only allowed legalization to proceed on the basis of a sort of gentlemen's agreement outlined in a 2013 memo, which promises that the Drug Enforcement Administration will look the other way so long as states that legalize weed follow a few common-sense guidelines in doing so.

But on a practical level, Nebraska and Oklahoma's nuisance argument is a stretch. Cops along those states' borders with Colorado have been complaining about an uptick in marijuana possession arrests all year. It seems that most of these are simple possession arrests stemming from traffic stops. "We don’t go after it," said a Nebraska sheriff quoted in the Post earlier this year, "but this Colorado marijuana is very potent, very aromatic, and we often trip over it if somebody’s speeding and we pull them over.”

He went on: “Every time we stop somebody, that’s taking up my deputy’s time with your Colorado pot. We have to pay overtime, pay the prosecutor, pay to incarcerate them, pay for their defense if they’re indigent. Colorado’s taxing it, but everybody else is paying the price.”

Writ large, this is the crux of the states' argument against Colorado: that their justice systems are being strained with the burden of dealing with low-level marijuana offenders coming out of Colorado. But if the states are concerned with the costs of arresting and prosecuting minor pot offenses, there is a simple solution already available to them: they could stop arresting and prosecuting minor pot offenders.

Nebraska has already decriminalized the possession of up to an ounce of weed. But bulky edible products that people bring from Colorado often tip the scales well above that threshold. Somebody driving out of Colorado with a few ounces of weed is most certainly not a major drug dealer. But Nebraska, and evidently Oklahoma, continue to prosecute these people as if they were.

Nebraska and Oklahoma are essentially blaming Colorado for their own law enforcement priorities. As Volokh notes, if this argument were upheld by the Supreme Court, then what would stop New York from suing Vermont over the latter's lax gun laws? Or New Jersey from suing Pennsylvania over fireworks?

It's notable that Nebraska's attorney general invited other neighboring states to join his lawsuit, but Oklahoma was the only one that took him up on it. It's an open question whether the court will take up the case. Until then, we're left with states suing other states over an excess of federalism.