- The Washington Times - Thursday, April 2, 2015

Colorado’s decision to legalize marijuana is stirring the pot in Nebraska and Oklahoma, where top officials say they’re dealing with spillover effects from their neighbor’s bright-line breach of federal law.

They are so angry about it that they’ve taken their case straight to the U.S. Supreme Court, hoping the justices will accept their pleadings under a rarely used clause of the Constitution that lets the court consider interstate squabbles directly.

Legal analysts say the case raises a host of issues that are still hazy, from the intersection of federal and state drug laws to whether cultural differences are eclipsing actual policy concerns among the states.

“This suit is as much, if not more, about the politics of marijuana reform as the practicality,” said Douglas Berman, a law professor at Ohio State University who teaches a seminar on marijuana law.

Ripples from state differences are nothing new — cigarette or fireworks shops often set up on borders to leverage tax or sales regulations — but the Colorado suit could be a vital test case for the nation, as feds directed by President Obama to look the other way on state marijuana laws confront the interstate dispute.

There is no specific deadline for the Supreme Court to take up the case, experts said, so the issue may bleed into the term next fall, leaving the states in limbo even as they plead for congressional clarity on how far they can loosen their pot laws.

At issue is Amendment 64, which Coloradans passed in 2012 to legalize possession of small amounts of marijuana for recreational use, paving the way for the sale, regulation and taxation of the drug.

Washington state joined Colorado that year at the vanguard of the legalization movement, and voters in Alaska, Oregon, and the District of Columbia passed their own initiatives in last year’s elections.

Nebraska and Oklahoma, which maintain a prohibition, say Colorado’s initiative is forcing them to beef up anti-trafficking efforts along their borders and incarcerate suspected and convicted drug felons. They want the justices to invalidate the voter-approved pot amendment to Colorado’s constitution, saying it is pre-empted by federal drug laws.

“Not only is Colorado affirmatively authorizing the trafficking of federal contraband, reaping enormous profits from doing so and causing plaintiff states to incur significant costs, but its violation is substantial and growing,” the states said in their December filing with the Supreme Court.

They’ve got the backing of nine former Drug Enforcement Administration chiefs, who filed a brief urging the court to hear the case because the Obama administration has “willfully ignored Colorado’s violation of federal law.”

Colorado fired back last Friday, saying legal trade is better than a black market, since the federal government has acknowledged it is unable to go after violators.

“In other words, if plaintiffs’ requested relief is granted, recreational marijuana would remain legal, but Colorado would lose the ability to monitor and regulate its retail supply and distribution,” Colorado Attorney General Cynthia H. Coffman told the justices.

While the plaintiff states may have genuine concerns, Mr. Berman said it will be hard for them to strike at the regulations without challenging the will of another state’s voters.

“You’re telling Colorado’s voters they weren’t allowed to do what they did with their own state law,” Mr. Berman said. “That’s a rough sell for lots of reasons.”

Nebraska and Oklahoma cite a report by the Rocky Mountain High Intensity Drug Trafficking Area, which says trafficking of Colorado-sourced marijuana is ballooning.

The report, though, is weighted toward seizures by Colorado authorities, has limited information about Nebraskan efforts and doesn’t appear to address Oklahoma’s seizures or arrests, according to the nonpartisan Congressional Research Service.

Colorado shares a border with five other states — Arizona, Kansas, New Mexico, Utah and Wyoming — that are not plaintiffs in this suit. But that doesn’t mean they’re happy with the initiative.

“Colorado’s decision to ‘legalize’ marijuana and the federal government’s subsequent decision to limit enforcement of federal law in Colorado have combined to cause harm in Kansas, and we are assessing our options,” Kansas Attorney General Derek Schmidt said in a statement through his spokeswoman.

Mason Tvert, a spokesman for the Marijuana Policy Project and key player in the legalization effort, said Nebraska and Oklahoma are bowing to anti-marijuana politics to try to dismantle Colorado’s tightly regulated market.

“It’s quite clear,” he said, “there are cultural differences between the states.”

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