Cornell law professor Michael C. Dorf, writing in a column in Justia, notes how Nebraska and Oklahoma, two of Colorado's neighboring states, are challenging Colorado's law legalizing marijuana in the U.S. Supreme Court. The basis for the Supreme Court's jurisdiction is the part of the federal constitution covering cases in "which a state shall be a party," Dorf notes.
Nebraska and Oklahoma's attorneys general argue that Colorado's pot legalization undermines their ability to "maintain their own prohibitions of marijuana because Colorado takes inadequate measures to prevent legal intrastate marijuana from crossing state borders, where it enters the illegal market." They also argue that Colorado's law violates the federal Controlled Substances Act. But Dorf finds a hole in the two states' argument about the CSA, reasoning that there is no federal preemption of states choosing not to criminalize marijuana.
Instead, he suggests that Nebraska and Oklahoma should sue the federal government for failing to enforce the CSA against third parties.
Lawyer and Legal Journalist
