Hilary Bricken
Last Monday, the Supreme Court of the United States issued a decision rejecting Nebraska and Oklahoma’s challenge to Colorado’s marijuana legalization regime. By a 6-2 vote, the Justices denied Nebraska and Oklahoma’s motion for leave to file a complaint, without providing any explanation.
The Court’s two most conservative justices — Justices Clarence Thomas and Samuel Alito Jr. — filed a written dissent. Justice Thomas wrote that “[t]he plaintiff states have alleged significant harms to their sovereign interests caused by another state. We should let this complaint proceed further rather than denying leave without so much as a word of explanation.”
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Nebraska and Oklahoma sued Colorado for legalizing marijuana, alleging marijuana from Colorado has strained Nebraska and Oklahoma’s financial, legal, and law enforcement resources, and essentially forced them to spend time and money making arrests, housing criminals, impounding vehicles, and seizing drugs. The lawsuit did not seek to require Colorado ban the personal use of marijuana or to prosecute marijuana use as a crime. The lawsuit instead sought to shut down Colorado’s legalization program that allows for legal growing and distribution of marijuana.
In December 2015, the federal government weighed in after SCOTUS requested the opinion of the Obama administration on the lawsuit. The Solicitor General recommended SCOTUS not hear the case at all. The cannabis industry was on pins and needles waiting to see how the Feds would rely on the 2013 Cole Memo, if at all.
In his amicus curiae brief on behalf of the Solicitor General’s Office, Solicitor General Donald Verrilli Jr. took Colorado’s side, arguing that the lawsuit did not come under the Supreme Court’s original jurisdiction and, therefore, SCOTUS had no power to take the case:
[Nebraska’s and Oklahoma’s] 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.
This is a big win for proponents of marijuana legalization across the country and it will likely mean no other states will waste their taxpayers’ money by butting into the affairs of neighboring states. This decision did not come as a big surprise to me because I did not expect the Supreme Court to rule against Colorado, for the following reasons:
- The votes of people in one state should not be canceled by the mores of another state.
- The importance of preserving the federalist ideal of allowing individual states to experiment, with the other states free to decide for themselves whether to follow suit or not.
- SCOTUS generally does not like hearing politically charged cases “before their time.” The legalization experiment is likely too new to provide much evidence on anything, including which way the political winds will eventually blow.
The Supreme Court may have been swayed by the Solicitor General’s brief, or it may have had other reasons for rejecting Nebraska and Oklahoma’s challenge. What is most important about this decision though, is that the highest court in our country refused to consider a challenge to state-legal marijuana.
Hilary Bricken is an attorney at Harris Moure, PLLC in Seattle and she chairs the firm’s Canna Law Group. Her practice consists of representing marijuana businesses of all sizes in multiple states on matters relating to licensing, corporate formation and contracts, commercial litigation, and intellectual property. Named one of the 100 most influential people in the cannabis industry in 2014, Hilary is also lead editor of the Canna Law Blog. You can reach her by email at [email protected].