On January 6, 2016, the attorneys general of Oklahoma and Nebraska fired what may be the final salvo in the first round of a battle over Colorado’s legalization of marijuana before the U.S. Supreme Court. The aggrieved states have accused Colorado of operating “a massive criminal enterprise” that earns hundreds of millions of dollars per year by exporting marijuana to its neighbors. Dissatisfied with the response from the U.S. Department of Justice, the attorneys general are pursuing an unusual, if not unprecedented, strategy to take federal law into their own hands.
The plaintiff states argue that Colorado’s establishment and oversight of a marijuana marketplace—not merely its legalization of the drug—has forced them to spend money and resources seizing more drugs, prosecuting more defendants, and incarcerating more prisoners, all of which they claim are traceable to Colorado. Attorney General Scott Pruitt of Oklahoma remarked that “[t]he state of Colorado would be prosecuted as a drug cartel if it were based south of the border.”
Despite its focus on Colorado, there is strong evidence that this lawsuit it is symptomatic of a broader fight between federal authorities and the state attorneys general over who should enforce federal laws. The plaintiff states pin the DOJ—which is not a party—with partial responsibility for any harm allegedly caused by Colorado because it “wants to give the mastermind a pass and blames the whole problem on Joe Blunt.”
The colorful rhetoric is not the only noteworthy characteristic of this case. The Oklahoma and Nebraska attorneys general are employing an unusual procedural strategy based on the Supreme Court’s rarely invoked authority to hear disputes between states in the first instance. Some statutes expressly empower state authorities to enforce federal laws, but not the Controlled Substances Act (“CSA”). In an apparent end-run around this obstacle and DOJ policy, the plaintiff states have asked the Supreme Court to invoke its original jurisdiction and settle the matter with finality.
If the Court takes the case, Oklahoma and Nebraska will argue that the CSA preempts Colorado’s legalization and that, in light of federal non-enforcement, they are the proper parties to administer that statute. The United States has argued in its amicus brief that the states have no standing to bring these claims and that allowing their suit to proceed would invite a deluge of litigation.
What the Supreme Court will do is, of course, uncertain. If the Court takes the case, the underlying premise of the claims—that state attorneys general should be broadly empowered to enforce federal laws when the governing administration has declined to do so—may incentivize other states to push the envelope further and, to paraphrase Carl von Clausewitz, continue politics by other means.