Citing a host of constitutional, legal and practical problems, the Obama administration urged the Supreme Court on Wednesday not to allow two states to sue Colorado directly in the Supreme Court over their claim of cross-border crime traced to their neighbor’s regime of legal sales of marijuana.

Nebraska and Oklahoma do have the option, the administration argued, to try to challenge the Colorado program in lower courts — though it suggested that such an approach may have problems, too.

Under the Constitution, the Supreme Court has the authority to try, as an original trial court, controversies between states.  It has great discretion to do so or not, and U.S. Solicitor General Donald B. Verrilli, Jr., noted that permission is seldom granted.  Mainly, he argued, it is the right approach only when one state is the direct cause of harm to another.

Colorado, the Solicitor General contended, is not directly harming either Nebraska or Oklahoma, and any criminal activity inside those states is the result of actions by third parties, not instigated by Colorado’s marijuana policy.

One year ago, the two states filed their plea to sue Colorado directly in the Supreme Court, contending that there is no other court where they could do so.  They do not challenge Colorado’s legalization of personal and medical use of marijuana, but they do object to the regime’s manufacture, possession, and distribution of marijuana — in short, its commercial aspects.

Solicitor General Verrilli, asked by the Court for the federal government’s views, outlined the federal policy against marijuana marketing, which has been relaxed so that it allows states to do as Colorado and Washington State have done in legalizing the availability of the drug in small quantities.  That is the gap in federal enforcement that Colorado’s neighbors have argued has led to marijuana buyers bringing the drug back across their borders.

In its brief, the federal government argued: “Where a state has alleged that another state permitted — but did not direct or approve — the injurious actions of other parties, this Court has declined to exercise original jurisdiction . . . .  This Court has continued to enforce the direct-injury requirement, which substantially overlaps with the Article III standing requirement that the injury be fairly traceable to the defendant’s actions.”

The Nebraska-Oklahoma complaint does not meet that standard, the federal government contended. Their basic complaint is that the authorization of licensed marijuana production and distribution within Colorado “increases the likelihood that third parties will commit criminal offenses in Nebraska and Oklahoma.”  Colorado has not directed or authorized anyone to carry marijuana across the state border, Verrilli said.

While the states have claimed that the Colorado program makes it easier for such transport, the federal government said, “that is a far less direct connection between state action and the alleged injury” that the Court had previously found in allowing original lawsuits between states.

Allowing this original case to go forward, Verrilli said, would open the way to many attempts by states to sue in the Supreme Court to try to compel other states to conform their laws to federal policies that do not demand such adherence.  The government argued that a number of other technical legal problems would arise if states were free to try to police the conduct of other states.

The government implied that the neighboring states were exaggerating the problem of cross-border criminal activity, noting that the Colorado program only allows the purchase of one ounce or less of marijuana.  Large-scale trafficking in marijuana is not likely, the government contended.  Moreover, that type of distribution is the focus of direct federal law enforcement, Verrilli pointed out.

The Solicitor General also discounted the states’ claim that the Supreme Court is the only tribunal where they could get relief from the Colorado marijuana scheme.  He noted that non-state parties interested in enforcing laws against marijuana have already filed two suits in federal court in Washington, D.C.

While private parties are on both sides of those two lawsuits, Verrilli said Nebraska and Oklahoma could sue in their own names against an appropriate state official in Colorado.  He conceded, though, that such a claim might encounter some of the same legal complications as their attempt to sue in the Supreme Court.

As a final point, Verrilli rejected Colorado’s suggestion that, if the original case went forward, the federal government would have to be sued, too, because of federal drug policy and its relationship to Colorado’s program.   The neighbors’ lawsuit would require no rulings on the rights or powers of the federal government, he argued.

The two states will get an opportunity to respond to the federal government’s views before the Justices decide whether to allow the states’ lawsuit to go forward. Colorado has already filed its opposition to the case.

Posted in Nebraska and Oklahoma v. Colorado, Cases in the Pipeline, Featured

Recommended Citation: Lyle Denniston, U.S. opposes marijuana challenge by Colorado’s neighbors, SCOTUSblog (Dec. 17, 2015, 9:05 AM), https://www.scotusblog.com/2015/12/u-s-opposes-marijuana-challenge-by-colorados-neighbors/