Supreme Court dismisses Nebraska-Oklahoma lawsuit against pot legalization in Colorado

|The Volokh Conspiracy |

A marijuana plant in Denver (AP).
A marijuana plant in Denver (AP).

The Supreme Court today refused to hear a case filed by the states of Nebraska and Oklahoma claiming that neighboring Colorado's legalization of marijuana violates federal law and inflicts various harms on them:

The U.S. Supreme Court on Monday refused to consider a lawsuit from Nebraska and Oklahoma against Colorado's regulated sale of marijuana for recreational use, removing a major threat to the multibillion-dollar state-legal cannabis industry.

Possession of marijuana for any reason outside limited research remains a federal crime, and marijuana reform advocates feared an unfavorable ruling would take a wrecking ball to laws in four states that allow recreational pot sales and medical marijuana laws in many others.

Colorado's neighbors argued the 2014 opening of recreational marijuana stores selling small amounts to anyone 21 and older caused an increase in cross-border criminality, and that Colorado's regulation of pot stores was illegal under federal law.

For reasons I discussed here, the Nebraska-Oklahoma lawsuit was ill-conceived and would have severely undermined constitutional federalism, had it prevailed. See also comments about the case by prominent federalism scholars Jonathan Adler, Randy Barnett, and Robert Mikos.

Though marijuana remains illegal under federal law, states cannot be forced to ban it under their own state laws, just as states are not required to ban other activities criminalized by Congress. The Supreme Court has ruled that the federal government cannot compel states to enforce federal law, and it is even more obvious that fellow states cannot do so. It is ironic that this lawsuit was brought by two state governments that, in other contexts, have forcefully advocated state autonomy and tighter enforcement of constitutional limits on federal power.

In a dissent joined by Justice Alito, Justice Clarence Thomas argued that the Court should have taken the case, because it has no authority to refuse to consider a lawsuit that is within its mandatory jurisdiction (in this case, a dispute between two states). However, as Thomas recognizes, the Court has several times refused to consider mandatory jurisdiction cases in the past (presumably because the justices believed the case was too weak to merit a hearing).

I think it might have been better if the majority justices had briefly summarized their reasons as to why the Nebraska-Oklahoma lawsuit lacks merit, instead of rejecting it without any explanation. But, on balance, I think it was appropriate for them to refuse to consider it. Just as lower courts have various procedural devices for dismissing meritless lawsuits without a full hearing, so the same should apply to the Supreme Court when it considers cases within its mandatory jurisdiction. However, I am not an expert on the law of mandatory jurisdiction, and therefore recognize that there might be an angle here that I am overlooking.

Whatever might be said of the procedural aspect of the Court's ruling, substantively the termination of this lawsuit is an important victory for constitutional federalism.

UPDATE: I have made a few minor revisions to this post. Because they were added within minutes of initial posting, I will not go over them in detail here.