« Rounding up commentary highlighting why I am just not that into SCOTUS nomination of Chief Judge Merrick Garland | Main | Some interesting recent discussions of religion and the death penalty »

March 21, 2016

SCOTUS rejects original lawsuit brought by Nebraska and Oklahoma against Colorado over marijuana reform

Legal gurus closely following state-level marijuana reforms have been also closely following the lawsuit brought directly to the Supreme Court way back in December 2014 by Nebraska and Oklahoma complaining about how Colorado reformed its state marijuana laws.  Today, via this order list, the Supreme Court finally officially denied the "motion for leave to file a bill of complaint" by Nebraska and Oklahoma against Colorado.  This is huge news for state marijuana reform efforts, but not really all that surprising.  (It would have been bigger news and surprising if the motion was granted.)

Notably, Justice Thomas authored an extended dissent to this denial, which was joined by Justice Alito.  Here is how this dissent stats and ends:

Federal law does not, on its face, give this Court discretion to decline to decide cases within its original jurisdiction. Yet the Court has long exercised such discretion, and does so again today in denying, without explanation, Nebraska and Oklahoma’s motion for leave to file a complaint against Colorado.  I would not dispose of the complaint so hastily. Because our discretionary approach to exercising our original jurisdiction is questionable, and because the plaintiff States have made a reasonable case that this dispute falls within our original and exclusive jurisdiction, I would grant the plaintiff States leave to file their complaint....

Federal law generally prohibits the manufacture, distribution, dispensing, and possession of marijuana.  See Controlled Substances Act (CSA), 84 Stat. 1242, as amended, 21 U. S. C. §§812(c), Schedule I(c)(10), 841–846 (2012 ed. and Supp. II).  Emphasizing the breadth of the CSA, this Court has stated that the statute establishes “a comprehensive regime to combat the international and interstate traffic in illicit drugs.”  Gonzales v. Raich, 545 U.S. 1, 12 (2005).  Despite the CSA’s broad prohibitions, in 2012 the State of Colorado adopted Amendment 64, which amends the State Constitution to legalize, regulate, and facilitate the recreational use of marijuana.  See Colo. Const., Art. XVIII, §16.  Amendment 64 exempts from Colorado’s criminal prohibitions certain uses of marijuana. §§16(3)(a), (c), (d); see Colo. Rev. Stat. §18–18–433 (2015).  Amendment 64 directs the Colorado Department of Revenue to promulgate licensing procedures for marijuana establishments. Art. XVIII, §16(5)(a).  And the amendment requires the Colorado General Assembly to enact an excise tax for sales of marijuana from cultivation facilities to manufacturing facilities and retail stores. §16(5)(d).

In December 2014, Nebraska and Oklahoma filed in this Court a motion seeking leave to file a complaint against Colorado.  The plaintiff States — which share borders with Colorado — allege that Amendment 64 affirmatively facilitates the violation and frustration of federal drug laws.  See Complaint ¶¶54–65.  They claim that Amendment 64 has “increased trafficking and transportation of Coloradosourced marijuana” into their territories, requiring them to expend significant “law enforcement, judicial system, and penal system resources” to combat the increased trafficking and transportation of marijuana.  Id., ¶58; Brief [for Nebraska and Oklahoma] in Support of Motion for Leave to File Complaint 11–16.  The plaintiff States seek a declaratory judgment that the CSA pre-empts certain of Amendment 64’s licensing, regulation, and taxation provisions and an injunction barring their implementation. Complaint 28–29.

The complaint, on its face, presents a “controvers[y] between two or more States” that this Court alone has authority to adjudicate. 28 U. S. C. §1251(a).  The plaintiff States have alleged significant harms to their sovereign interests caused by another State.  Whatever the merit of the plaintiff States’ claims, we should let this complaint proceed further rather than denying leave without so much as a word of explanation.

Cross-posted at Marijuana Law, Policy & Reform.

March 21, 2016 at 09:55 AM | Permalink


Unexpected but the dissent was right to call them on it -- USSC yet again didn't explain themselves when it was warranted. The stun gun ruling was surprising. It didn't say much but them taking a 2A case and one that actually took Heller seriously, especially one involving a stun gun outside the home, was notable.

Posted by: Joe | Mar 21, 2016 11:12:08 AM

ugh: "expected."

Posted by: Joe | Mar 21, 2016 11:12:26 AM

Has Justice Thomas expressed his views on whether the Court has discretion to decline original lawsuits before? I think it's an interesting question.

The actual lawsuit is a strange one. On its face, I don't see the plaintiffs actually seeking a remedy with their suit. Their claimed harm is drugs coming across their borders but their remedy is to prevent Colorado from regulating drugs at all (since everyone agrees they can't force Colorado to enforce federal law). They may hope, given the choice, Colorado would rather criminalize again rather than deregulate, but that's a hope, not a legal argument.

Posted by: Erik M | Mar 21, 2016 12:24:25 PM


Doesn't sound they want Colorado "from regulating drugs at all" but specifically not to regulate it ("marketing" etc.) in a certain fashion. A state also need not enforce federal law but Colorado went further here and set up a pro-legalization regime the states argue is blocked by federal law/preemption. And, the result were harms to bordering states.

It's an interesting question.

Posted by: Joe | Mar 21, 2016 1:05:10 PM

Doug, do you have any sense of what is likely to happen if they refile their case in District Court?

Posted by: Daniel | Mar 21, 2016 1:39:26 PM

The Supreme Court's jurisdiction over a controversy between two states is exclusive, so a district court can't hear it. I guess there might be a way of reframing the litigation so it demands an injunction against an individual defendant.

Posted by: anon | Mar 21, 2016 8:45:25 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB