Nebraska and Oklahoma v. Colorado

e are entering a new year and Colorado remains on the cutting edge of cannabis legalization. So, what about the lawsuit filed by Oklahoma and Nebraska against Colorado over cannabis? Because the lawsuit is between two states, it was filed in the United States Supreme Court and entitled “States of Nebraska and Oklahoma, Plaintiffs, v. State of Colorado, Defendant”.

So, what is the basis for this lawsuit? There is a federal law entitled The Controlled Substances Act (CSA) to regulate the market of controlled substances (i.e. heroin, morphine, cannabis, hydrocodone, etc.). This act makes it “unlawful to manufacture, distribute, dispense, or possess any controlled substance except in a manner authorized by the CSA.” Gonzales v Raich, 545 U.S. 1, 13 (2005).

The CSA categorizes all controlled substances into five schedules and since 1970 cannabis has been classified as a Schedule I drug it was determined by Congress that cannabis has a high potential for abuse and has no accepted medical use in treatment in the United States. Therefore, under the CSA the possession, distribution or manufacture of cannabis is a criminal offense and therefore, as an illegal drug, cannot flow through interstate commerce between and among the United States. 

Coloado passed Amendment 64 in 2012 which essentially and in essence, made the cultivation, possession and distribution legal in Colorado under their regulatory scheme and so long as there is compliance with the regulatory scheme.

The State of Nebraska and the State of Oklahoma are saying that if they sue Colorado for violating the CSA by making cannabis legal, then they must sue in the United States Supreme Court as that is the court to hear cases between states and which the Supreme Court would have jurisdiction over. The two states are alleging that Colorado’s regulatory scheme has effectively resulted in the interstate trafficking of drugs into other states. Nebraska and Oklahoma are saying that their state resources of law enforcement, jails, court time, and other matters are being overwhelmed due to the influx of cannabis into their state, and the subsequent prosecutions of the people involved, from Colorado cannabis. These problems have been created by Colorado authorizing conduct (with Colorado’s regulatory scheme) which is prohibited by federal law (CSA) sanctioning the cultivation, distribution and possession of cannabis which has been detrimental to and a direct threat to the health, safety, and welfare of the citizens of the two states.

So, is this a real threat to our state regulatory scheme for cannabis? You would think not as greater numbers of states have passed laws allowing medical cannabis and legalization of cannabis and even more are slated to have those freedoms on their ballots. The lawsuit though does have a point. There remains a federal law making cannabis illegal. Now is the time to contact your Congressman and Senator Michael Bennett and Senator Corey Gardner. Contact your new Attorney General Coffman and give Colorado support. This might be just what is needed to take cannabis off of Schedule I of the CSA.