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Colorado’s Neighbors Sue over Amendment 64


 Some neighbors wish Colorado weren't quite so accessible.

Colorado is bordered by six states: New Mexico, Utah, Wyoming, Nebraska, Kansas, and a sliver of Oklahoma. According to NetNebraska, “Legalization of medical marijuana in Colorado causes almost daily headaches for law enforcement in neighboring states,” and the legalization of recreational pot has compounded that issue. The issue has sparked television and radio programs, frustration, and even anger. Most recently, the United States Supreme Court has been asked to get involved.

Nebraska Attorney General Jon Bruning and Oklahoma Attorney General E. Scott Pruitt have filed a suit against the State of Colorado with the U.S. Supreme Court. They argue that the “nation’s anti-drug laws” prohibit any state from establishing “its own policy that is directly counter to federal policy against trafficking in controlled substances or establish a state-sanctioned system for possession, production, licensing, and distribution of drugs in a manner which interferes with the federal drug laws that prohibit possession, use, manufacture, cultivation, and/or distribution of certain drugs, including marijuana.”

The suit also posits that Colorado’s Amendment 64 is “devoid of safeguards to ensure marijuana cultivated and sold in Colorado is not trafficked to other states, including Plaintiff States.” There is therefore “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.”

There is some evidence that marijuana may, indeed, be more available in Colorado’s neighboring states. Certainly that is the opinion of Deuel County, Nebraska, Sheriff Adam Hayward, who told the Associated Press that marijuana has “basically flooded our county.” In response, border states are reportedly responding by “singling out vehicles crossing the border for Colorado for suspicion of carrying marijuana,” a practice called “geographic profiling” (Politico).

And yet not everyone in neighboring states supports the lawsuit. Seven Republican members of Oklahoma’s legislature have spoken out against it in a letter to Attorney General Pruitt, where they expressed the following “very serious concerns” about the lawsuit:

  1. The Tenth Amendment:

“Our primary concerns surround the implications of this lawsuit for states' rights, the Tenth Amendment, and the ability of states and citizens to govern themselves as they see fit. As you know, Oklahoma has been a pioneer and a leader in standing up to federal usurpations of power on everything from gun control to Obamacare and beyond.”

  1. The supremacy clause of the U.S. Constitution:

“If the federal government can force Colorado to criminalize marijuana, using the exact same arguments, it could also force Oklahoma to criminalize a wide range of goods and activities that would be anathema to the citizens of Oklahoma that we are sworn to serve.”

  1. National sovereignty:

“If the argument in the lawsuit were successful, the federal government could, in theory, adopt any UN treaty, then force the states, including Oklahoma, to help impose it.”

They conclude that if the Supreme Court takes the case, “many of our Constituents want us to consider filing an amicus brief on behalf of Colorado.”

On the other hand, they do share Pruitt’s “concerns about the growing amounts of marijuana apparently coming into our State from Colorado” and appreciate his efforts to “protect the people of Oklahoma from this dangerous substance.”

Colorado’s other neighboring states have not announced they will join in the suit. Although legalization has caused “harm in Kansas,” Kansas Attorney General Derek Schmidt isn’t part of the lawsuit “at this time.” And Utah Govenor Gary Herbert said his state has “no plans to sue Colorado” (Washington Post).

Colorado Attorney General John W. Suthers said in a statement that the suit was “without merit.” The problems Nebraska and Oklahoma may be facing are stem from “non-enforcement of federal laws regarding marijuana,” not Colorado’s Amendment 64. As a result, his office “will vigorously defend against it in the U.S. Supreme Court.”

Snapshot

To date, voters have approved the legalization of recreational marijuana in Alaska, Colorado, Oregon and Washington. Voters also approved the decriminalization of pot in the nation’s capital, although Congress may block it. Eight additional states are currently considering some sort of legalization: Arizona, California, Florida, Maine, Massachusetts, Missouri, Montana, and Nevada. In other words, the issue is being increasingly difficult to ignore.

And with legalization comes complications. In Washington State, for example, confusion persists over how to tax businesses supplying medical marijuana to customers, since "medical marijuana dispensaries aren't licensed to sell" in the Evergreen State. Numerous medical marijuana dispensaries now find themselves saddled with delinquent sales tax notices, and in some cases felony charges. But some say to pay the taxes is to admit to engaging in a federal crime.

Thus far, the Obama administration has opted to not enforce “marijuana prohibition.” This has resulted in “a legally murky situation where no one is completely sure what states can or can’t do.” Adding to the confusion is the recently approved federal spending bill, which included language that both “invalidate(s) D.C.’s Initiative 71” and “prohibit(s) federal agents from raiding medical marijuana facilities in states where pot is legal”(Politico), effectively ending the federal prohibition of medical marijuana.

If the Supreme Court accepts the Colorado case, it may add clarity to that that murky situation.

photo credit: Ken Lund via photopin cc


Gail Cole
Avalara Author
Gail Cole
Gail Cole
Avalara Author Gail Cole
Gail began researching and writing about sales tax in 2012 and has been fascinated with it ever since. She has a penchant for uncovering unusual tax facts, and endeavors to make complex sales tax laws more digestible for both experts and laypeople.