Nebraska and Oklahoma vs. Colorado: Irony Flows

Vintage distressed retro version of the Colorado State flag with Marijuana leaf in center - controversial issue
Vintage distressed retro version of the Colorado State flag with Marijuana leaf in center - controversial issue

The U.S. Supreme Court recently declined to hear a lawsuit brought by Nebraska and Oklahoma opposing Colorado's regulation of the sale and cultivation of legalized marijuana. The reaction has been a mixed bag. The challenge and its ultimate dismissal have provided a smorgasbord of topics to be served up and savored -- from scholarly debates on jurisdiction, federalism, states' rights and constitutional law, to crystal ball predictions as to what this foretells for the future of marijuana legalization. As a former prosecutor, what is striking to me is that throughout the fabric of this diverse commentary, a common thread steadily rocks along embroidering its name across the landscape -- irony.

Nebraska and Oklahoma did not challenge Colorado's legalization of marijuana. They conceded that Colorado has the power to legalize the production, distribution, possession and use of marijuana. Rather, they criticized the Justice Department for turning its back on enforcing federal law, thereby allowing it to be "dismantled by piecemeal nullification." The states complained that Colorado's establishment of a legal, regulated market caused marijuana to flow into their states, thereby undermining their strict laws prohibiting marijuana. This, they claimed, caused "irreparable injury" by draining their treasuries, placing stress on their criminal justice systems and endangering the health of their residents.

Irony #1: Nebraska and Oklahoma did not challenge the fact that Colorado could legalize marijuana. Just last year, Oklahoma enacted legislation known as Katie and Cayman's Law, which legalized cannabidiol (CBD) oil for children with epilepsy. However, the law is silent on how patients can actually obtain CBD products and provides no safe, in-state access. This leaves patients and their families with few options, all involving significant risk and expense. Ultimately, they must travel to another state with a legalized market to obtain the medical oil.

Irony #2: The criticisms Nebraska and Oklahoma launched against the Justice Department for allowing "piecemeal nullification" of federal marijuana laws have backfired. It is difficult to argue "the supreme law of the land" to spur a crusade when the ones leading the charge cannot pass the "fair weather federalism" smell test. Both states have fervently fought Obamacare on the grounds of states' rights and personal liberties. The federal power they zealously opposed on the healthcare front is the same federal power they sought to rely upon to force a change in their neighbor state's laws. The lawsuit against Colorado not only contradicted their long-held stances on state sovereignty, but inadvertently advocated for dissolution of states' rights altogether. Had the lawsuit succeeded, the stage would be set for states to sue each other over any differing laws and policies or anything that just didn't suit them. Moreover, states that choose to carry a torch for prohibition policies do nothing but fuel a never-ending expansion of the size and power of government. As drug enforcement efforts expand, states' rights and individual liberties shrink as a result of raids and civil asset forfeiture.

Irony #3: Nebraska and Oklahoma argued that Colorado's providing a legal, regulated marketplace naturally resulted in more people entering their states with marijuana, which taxed their criminal justice systems and hurt the health of their residents. It was never alleged that the flow of marijuana into their states was due to Colorado's engaging in any conduct that would promote interstate trafficking, such as setting up dispensaries near the states' borders or encouraging bulk sales or shipments. Basically, Nebraska and Oklahoma were advocating for legalization without regulation. If the lawsuit had succeeded, marijuana would still remain legal in Colorado. The only difference would be control of the supply would return to the underground market, thus perpetuating crime, violence and likely more trafficking.

The Final Irony: The crime, violence and health risks that Nebraska and Oklahoma, and in fact, all drug warriors try to suppress are not derived from marijuana itself, but are the ultimate consequences of the continuation of failed prohibition policies. Regardless of the reason the US Supreme Court declined to hear this case, states that cling to outdated myths and misinformation, pander to industries with vested and conflicting interests, and rely on civil asset forfeitures and drug enforcement funding to justify their drug wars or to attack their neighboring states are wasting valuable time and resources and are not serving the best interests of their citizens. A person who possesses or uses marijuana should not be deemed a patient or merely a free citizen in one state and a criminal or unfit parent in the next.

It is undisputed that eliminating the market for marijuana is impossible. The governments we elect and entrust must decide how to responsibly handle this market. Decades of prohibition have produced mass incarceration, corruption, disease and a dangerous underground market. States choosing to replace marijuana prohibition with smart legalization, responsible regulation and effective education are seeing different results. Criminal justice systems can dedicate their time and resources to serious, violent crimes. Underground markets are replaced with licensed, regulated markets, which ensure product quality, customer safety and prevent sales to minors. Families and lives are no longer being destroyed by incarceration and the lifelong consequences of marijuana convictions. Funds being generated and saved are pouring into communities rather than to gangs and cartels. The benefits of better health, education and safety are flowing into the lives of their citizens.