Not everybody has been high on life since Colorado passed Amendment 64 on November 6, 2012, which legalized the sale and distribution of marijuana in Colorado.  Since the passage of Amendment 64, several states have voiced their concerns regarding the inherent conflict between states legalizing medical and/or recreational marijuana, and the Controlled Substances Act (“CSA”), which lists marijuana as a Schedule I drug, and forbids its sale or use.  On March 21, 2016, the Supreme Court of the United States (“SCOTUS”) exercised its discretion to reject a challenge by Oklahoma and Nebraska to Amendment 64, and other marijuana legalization efforts, alleging that Amendment 64 is preempted by federal law.  In other words, Oklahoma and Nebraska, argued that the Colorado law violates the CSA, and that SCOTUS should adjudicate this case based on “original jurisdiction,” which empowers SCOTUS to hear disputes between the states without first being tried at the District Court and Court of Appeals.

With SCOTUS refusing to adjudicate Oklahoma and Nebraska’s case, marijuana legalization advocates felt they could take a celebratory toke.  However, undeterred by their previous effort, Oklahoma and Nebraska have pursued a creative strategy to continue fighting marijuana legalization in Colorado.  On June 3, 2016, Oklahoma and Nebraska filed a brief in support of their intervention in Safe Streets Alliance v. Hickenlooper and Smith v. Hickenlooper, which were combined as Safe Streets Alliance v. Hickenlooper in the U.S. Court of Appeals for the Tenth Circuit.

In Safe Street Alliance, the plaintiffs — an anti-drug origination and law enforcement officials from Colorado, Kansas, and Nebraska — sued Colorado officials seeking a declaration that Amendment 64 and its corresponding provisions are preempted by the CSA.  The district court dismissed the plaintiffs’ complaints holding that Amendment 64 could not be challenged as preempted, since the CSA does not explicitly allow private citizens to sue the state in order to enforce the CSA.

In their brief, Oklahoma and Nebraska argue that they have jurisdiction to challenge Amendment 64.  They contend that the legalization of marijuana in Colorado has had a substantial effect on interstate commerce and has burdened the states’ public resources, such as the use of their police force.  For example, “Colorado has facilitated purchase of marijuana by residents of neighboring states by issuing licenses to an unusually high number of marijuana retailers perched on Colorado’s borders,” and Colorado allows the sale of marijuana to anyone over the age of 21- even those with convictions for distribution of marijuana in neighboring states.”  Oklahoma and Nebraska cite several instances where individuals were arrested after purchasing marijuana in Colorado, with the intent to distribute the marijuana in neighboring states.

Furthermore, Oklahoma and Nebraska argue that SCOTUS has long recognized the ability of states to bring actions in federal court against other states whose laws and regulations are causing them harm.  In this regard, SCOTUS has in the past enjoined the actions of another state as a violation of the Supremacy Clause of the U.S. Constitution.


It remains to be seen how the Tenth Circuit will react to Oklahoma and Nebraska’s intervention in Safe Street Alliance.  What is clear is that businesses with operations across multiple states are burdened by inconsistent laws regarding marijuana legislation, especially if those businesses intend to enforce a drug-free workplace.  Therefore, if Oklahoma and Nebraska are successful in their intervention, businesses could benefit from a uniform policy holding marijuana to be illegal.

It should be noted that this lawsuit could be less significant for states where medical marijuana is legal, as federal authorities have announced their intention to review the classification of marijuana, and consider reclassifying it as a Schedule II drug.  As a Schedule II drug, marijuana would be in the same category as other doctor-prescribed medication such as, Ritalin, Adderal, and Oxycoton, and there could be a nationwide, uniform, regulated market for medical marijuana.

As always, we will continue to follow and update you on this case as it percolates through the Tenth Circuit.  If you have any questions or concerns, please contact your local Seyfarth Shaw attorney.  Paul Galligan ( is a partner in the New York office, and Samuel Sverdlov ( is an associate in the New York office.