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December 17, 2015

Justice Department urges SCOTUS to refuse to take up original suit about marijuana brought by neighbor states against Colorado

As discussed here by Rob Mikos over at my Marijuana Law, Policy & Reform blog, late yesterday the US Solicitor General filed an amicus brief in the Supreme Court concerning the suit brought by Nebraska and Oklahoma against Colorado seeking various kinds of legal relief in the wake of Colorado's legalization of recreational marijuana.  Rob provides this basic background and summary of the filing:

Per its practice, SCOTUS had requested the SG’s input. The brief can be found via this link.  (To provide some background, the SG handles all litigation involving the United States before SCOTUS, and it also commonly files amicus briefs in SCOTUS cases in which the U.S. is not a party. The SG’s positions can be quite influential on the Court.)  For earlier postings on this case, see here, here and here.

In a nutshell, the SG argued that SCOTUS should refuse to exercise original jurisdiction over the action. Why? Perhaps most importantly, the SG suggested that the NE / OK suit didn’t fit the mold of cases over which SCOTUS had traditionally exercised original jurisdiction – namely, cases in which one state had directly harmed another. Importantly, the SG argued that CO hadn’t directly injured its neighboring states, e.g., by exporting marijuana or authorizing private citizens to do so.  Rather, any injury NE / OK have suffered is more directly traceable to the actions of private parties who buy marijuana in CO and then take it outside the state.

Because it focused on SCOTUS practice, the SG did not need to weigh in on the merits of the underlying action. But I think the argument the SG makes favors CO, if SCOTUS (or another court) ever had to decide the matter. After all, if CO is not directly responsible for the injury to NE / OK’s regulatory interests, it’s hard to see why CO could be held responsible for any injury to federal regulatory interests. In other words, if CO isn’t responsible for people using marijuana in NE / OK, then it arguably isn’t responsible for people using marijuana in CO either.

As the SG itself notes, even if SCOTUS declines original jurisdiction over the suit, NE / OK could still file it in a federal district court. Of course, it would have to overcome some daunting procedural hurdles there as well (e.g. ,standing), as noted in the SG brief.

I am hopeful I will have time in the coming days to closely analyze this SG amicus brief and to post some additional commentary at the Marijuana Law, Policy & Reform blog or here.  In the meantime, here is how the Discussion section of the SG's brief gets started:

The motion for leave to file a bill of complaint should be denied because this is not an appropriate case for the exercise of this Court’s original jurisdiction.  Entertaining the type of dispute at issue here — essentially that one State’s laws make it more likely that third parties will violate federal and state law in another State — would represent a substantial and unwarranted expansion of this Court’s original jurisdiction.

December 17, 2015 at 10:05 AM | Permalink


Am I missing something here? The first thing that comes to mind is: if this is actionable, then anytime a state declares anything illegal that its neighbor does not, then that would be actionable, too, no? Some states bar possession or use of radar detectors, others don't. Same with certain types of guns. States have different ages for marriage. And so on and so forth.

I must be missing something obvious. Can somebody spell it out for me?

Posted by: ADC Wonk | Dec 18, 2015 1:45:11 PM

Well, I'm not a big fan of this lawsuit, but two things cited would be (1) marijuana is illegal under federal law [though Congress did pass a funding rule that in some fashion stops enforcement in states that allow it) and (2) the legalization causes harms that bleed into neighboring states. The "anything illegal" rule would not apply there.

The discussion and links provide more details, of course.

Posted by: Joe | Dec 18, 2015 3:10:32 PM

ETA: I should clarify that the states CLAIM that legalization causes harms such as leakage of marijuana to their prohibitionist states. One might compare this to alcohol, which the federal government allows obviously & the 21st Amendment provides states express power over. So, a dry state might be upset at a neighboring wet state, but is stuck.

Again, this is not a vote of confidence but meant to explain the reasoning going on.

Posted by: Joe | Dec 18, 2015 8:08:02 PM

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