Solicitor General Says SCOTUS Shouldn't Hear Challenge to Marijuana Legalization

The Obama administration says Nebraska and Oklahoma have not described a genuine controversy with Colorado.


In a brief filed on Wednesday, the Obama administration urges the Supreme Court not to hear Oklahoma and Nebraska's challenge to marijuana legalization in Colorado. "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," Solicitor General Donald Verrilli Jr. writes. 

Oklahoma and Nebraska argue that Colorado's licensing and regulation of marijuana businesses violates the Controlled Substances Act and therefore the Supremacy Clause. They brought their complaint directly to the Supreme Court because they think Colorado has created an interstate conflict by allowing the production and distribution of marijuana that may end up in Oklahoma or Nebraska. Federal law gives the Supreme Court "original and exclusive jurisdiction of all controversies between two or more States."

Verrilli rejects Oklahoma and Nebraska's contention that the smuggling of Colorado cannabis creates an interstate controversy. "Where the plaintiff State does not allege that the defendant State has 'confirmed or authorized' the injury-inflicting action, there does not exist a 'controversy' between the States appropriate for initial resolution under this Court's exclusive original jurisdiction," he writes. "Nebraska and Oklahoma essentially contend that Colorado's authorization of licensed intrastate marijuana production and distribution increases the likelihood that third parties will commit criminal offenses in Nebraska and Oklahoma by bringing marijuana purchased from licensed entities in Colorado into those states. But they do not allege that Colorado has directed or authorized any individual to transport marijuana into their territories in violation of their laws. Nor would any such allegation be plausible."

Verrilli's opinion, which the Supreme Court solicited, probably will carry a lot of weight, since Nebraska and Oklahoma's argument is based on Colorado's alleged violation of federal law. If the Court declines to hear the case, Nebraska and Oklahoma can still refile it in U.S. District Court.

"This is a meritless and, quite frankly, ludicrous lawsuit," says Mason Tvert, director of communications at the Marijuana Policy Project. "We hope the court will agree with the solicitor general that it's not something it should be spending its time addressing. These states are literally trying to prevent Colorado from controlling marijuana within its own borders. If officials in Nebraska and Oklahoma want to have a prohibition-fueled marijuana free-for-all in their states, that's their prerogative. But most Coloradans would prefer to see marijuana regulated and taxed similarly to alcohol."