Supreme Court

SCOTUS Turns Away Oklahoma and Nebraska's Challenge to Legal Pot in Colorado

Perturbed by smuggling, the two states had demanded an end to their neighbor's licensing and regulation of marijuana merchants.


Jacob Sullum

Today the Supreme Court declined to hear Oklahoma and Nebraska's challenge to marijuana legalization in neighboring Colorado, which they say harms them through interstate smuggling. They argued that legalization in Colorado had "a direct and significant detrimental impact" on them by forcing "the diversion of limited manpower and resources to arrest and process suspected and convicted felons involved in the increased illegal marijuana trafficking or transportation." The Obama administration had urged the Court to reject Oklahoma and Nebraska's petition, saying their beef did not amount to a bona fide interstate controversy, since it grew out of lawbreaking that was neither directed nor approved by Colorado.

Oklahoma and Nebraska argued that Colorado's licensing, regulation, and taxation of marijuana growers and distributors violates the Controlled Substances Act (CSA) and therefore the Supremacy Clause, which makes federal statutes "the supreme law of the land." Colorado argued that it is acting well within the leeway that states enjoy under the Constitution and that its tolerance of heretofore criminal behavior does not create a "positive conflict" with federal law, as required for pre-emption under the CSA.

Justice Clarence Thomas, joined by Samuel Alito, dissented from the Court's decision not to hear the lawsuit. "The complaint, on its face, presents a 'controvers[y] between two or more States' that this Court alone has authority to adjudicate," he writes. "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."

Marijuana Majority's Tom Angell welcomed the Court's decision, saying it avoids what could have been "a dark shadow on the marijuana ballot measures voters will consider this November" by allowing states to "move forward with implementing voter-approved legalization laws even if their neighbors don't like it." He adds that "if officials in Nebraska and Oklahoma are upset about how much time and resources their police are spending on marijuana cases, as they said in their briefs, they should join Colorado in replacing prohibition with legalization."