Nebraska, allies must be careful what they ask for |

Nebraska, allies must be careful what they ask for

Randy Essex
The Post Independent
Randy Essex


It's embedded at the bottom of this column.

Will Nebraska and Oklahoma, by asking the U.S. Supreme Court to block legal marijuana in Colorado, squelch the state’s new industry and the party for its customers?

Colorado’s supporters of Amendment 64 probably can exhale and relax: Constitutional scholars around the country agree that the lawsuit filed last week is unlikely to succeed.

Further, a win for the plaintiffs could have unintended consequences they would rue.

Scholars think the case will be dismissed because our neighbors will have a hard time showing that Colorado has harmed them sufficiently to sue.

Nebraska and Oklahoma attorneys general are right, or course, that marijuana is illegal under federal law. And they are right that the U.S. Constitution establishes that it and federal statutes “shall be supreme law of the land … any thing in the constitution or laws of any state to the contrary notwithstanding.”

The states go from there to contend that Colorado “has created a dangerous gap in the federal drug control system … 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.”

Colorado rules “lack safeguards to prevent the retail sale of marijuana either to persons intending to transport marijuana to other states or to persons engaged in a criminal enterprise.”

The U.S. Constitution provides that the Supreme Court is the proper venue to settle disputes between the states — we don’t want border wars — and the court tilts conservative these days, so why would it not say that marijuana is illegal, thus, Colorado’s practice is illegal?

Because, constitutional scholars say, Colorado isn’t the bad guy.

“The federal government’s failure to enforce those laws is the reason … why these neighboring states have suffered any alleged injury,” University of Denver law professor Jan Laitos said in an email.

“Any injury that has been suffered (if at all) is caused by the U.S. Department of Justice policy, not Colorado’s laws. So, our neighboring states will have failed to prove that they have been injured by the defendant listed in the complaint – Colorado, and be denied standing.”

OK, he’s from Colorado, so might be biased.

Kermit Roosevelt, a constitutional scholar at the University of Pennsylvania law school and author of “Conflict of Laws,” agreed, if for slightly different reasons.

“I don’t think Nebraska and Oklahoma have standing to sue Colorado over a law that only applies within Colorado,” he said.

“If drugs are being brought into states where they’re illegal, the authorities in those states should be able to prosecute those responsible — and Colorado certainly doesn’t purport to prevent states from doing that. … I don’t think they have suffered the kind of injury that they could sue about.”

A contrary view, however, likens Colorado’s legalization to pollution from a neighboring state and notes the case Georgia v. Tennessee Copper. In that case early last century, the Supreme Court found that “the Constitution bars states from undertaking endeavors that conscript the citizens or property of their neighbors as guinea pigs in their experiments.” This view argues, though, that the proper remedy might be monetary damages that Nebraska would have to prove, rather than an order blocking Amendment 64.

Colorado, of course, has an obligation to ensure that its experiment does as little harm as possible. It must get a better handle on edibles and keeping them out of children’s hands. It must continue its regulatory work, documented earlier this month in the PI, in closing operations that don’t follow the state’s strict rules.

Ultimately, whether marijuana remains legal in Colorado will depend greatly on the next president. The Obama Justice Department has decided not to block recreational pot legalization in Colorado and Washington state. Twenty-three states permit medical marijuana in some fashion, which also is illegal under federal law.

A move by, say, a President Jeb Bush or Chris Christie to crack down would continue an expensive war that has failed to prevent drug use and trafficking. It would not stop illegal drug trafficking in Nebraska and Oklahoma — which, whether the AGs admit it or not, had those problems long before Colorado legalized pot.

It also would be risky for a candidate to promise to fight legal pot. Colorado is a purple state that will be in play in deciding the winner of presidential elections in 2016 and 2020. A candidate is unlikely to even mention an issue approved by a majority of voters in the state. Nebraska, Oklahoma and like-minded states are locked up for Republicans and don’t matter in presidential politics.

Nebraska, my home state, also is deep into a bit of hypocrisy here. Whiteclay, Nebraska, population 12, for decades has been the source of beer — 3.8 million cans in 2012 — sold to residents of the Pine Ridge Indian Reservation in South Dakota.

Nebraska Attorney General Jon Bruning can sue Colorado over legal pot, but has done nothing to help the Ogalala Sioux mitigate the well-documented damage from Whiteclay’s beer sales.

The tribe finally gave up and ended its century-old ban on sales on the reservation in hopes of improving regulation.

Perhaps if Nebraska succeeds against Colorado, it would buttress the Ogalalas’ case against Whiteclay.

A win also could open the door to lawsuits from states that have stricter gun laws than their neighbors, for example.

Nebraska and Oklahoma elected leaders ordinarily would argue against federal intervention. They need to be careful what they ask for.

Randy Essex is editor of the Post Independent.

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