Nebraska and Oklahoma Sue Over Colorado's Legal Marijuana Law

Republican attorneys general versus legal weed.

Marijuana buds and one hundred U.S. dollar bills ($100) are arranged for a photograph in Toronto, Ontario, Canada, on Wednesday, Oct. 26, 2011

Photographer: Brent Lewin/Bloomberg

The first year of fully legal marijuana sales in Colorado turned out as well as adherents could have hoped. Moving the black market into daylight netted the state around $60 million. There has been no crime wave; there has been no civilizational collapse, except for Democrats who wanted Senator Mark Udall to win his re-election race.

But life has been more complicated in neighboring states, and yesterday the Republican attorneys general of Nebraska and Oklahoma sued Colorado over the law, claiming that violated the supremacy clause of the Constitution. The lawsuit, readable here, is a little shot of cognitive dissonance for anyone who listens to conservative Republicans on other matters. First, most jarringly, it cites America's agreements with foreign nations as a reason that Colorado's law can't stand.

"Through its exclusive Constitutional power to conduct foreign policy," argue the plaintiffs, "the United States is a party to international treaties and conventions under which it has agreed to control trafficking in drugs and psychotropic substances, such as marijuana."

Conservatives are more comfortable deriding foreign entanglements and treaties than appealing to them; but here we are. Later, the attorneys general make a series of arguments about the absence of a state right to ignore the feds. "The [legal code]’s provision at 21 U.S.C. § 903 that a state law is preempted when a 'positive conflict' exists such that a CSA provision and the state law in question 'cannot consistently stand together,'" they write. It's a position, sure, but not one often applied by conservative AGs to abortion laws or laws attempting to unwind the Affordable Care Act with exemptions in the states.

It's also proven to be a loser position for opponents of medical marijuana laws. The "supremacy clause" argument has not unwound any of those laws in 23 states. The attorneys general now say that their states' law enforcement agencies are being overwhelmed by the pressure of enforcing marijuana laws and seizing Colorado-grown pot. But that pot was being smuggled long before Colorado made it legal. Colorado's voters found a way to take the pressure off of their cops that was a little more innovative, and lucrative, than the one favored by red state attorneys general. 

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