A Cannabis Coup: SCOTUS Rejects Challenge to Colorado’s Legalization of Marijuana by Oklahoma and Nebraska AGs

Colorado Flag on Cannabis backgroundThe U.S. Supreme Court will not hear a lawsuit brought by the attorneys general of Nebraska and Oklahoma challenging Colorado’s oversight of a legal marketplace for marijuana.  In a one line order released this week, the Court denied the states’ request for leave to file a complaint invoking the Supreme Court’s original jurisdiction—a tool that allows the Court to hear disputes between states in the first instance.  At stake was whether state attorneys general should be broadly empowered to enforce federal laws when the governing administration has declined to do so.

As previously reported (see our full discussion here), the attorneys general of Nebraska and Oklahoma accused Colorado of operating a de facto drug cartel that earns hundreds of millions of dollars per year with the tacit consent of the U.S. Department of Justice.  According to the plaintiff states, Colorado’s neighbors are forced to expend untold sums seizing more drugs as well as prosecuting and incarcerating a greater number of defendants. 

Justice Thomas, joined by Justice Alito, dissented from the dismissal. The dissent suggests that at least two justices considered the plaintiff states’ novel strategy for enforcing federal laws plausible.  “The plaintiff States have alleged significant harms to their sovereign interests caused by another State,” writes Justice Thomas, and the Court therefore “should let this complaint proceed further rather than denying leave without so much as a word of explanation.”  The dissent further questions whether the Court’s “discretionary approach” to original jurisdiction comports with the plain meaning of federal law and urges the Court to reconsider the practice.

The path of any future litigation between these states is, at best, hazy:  the Supreme Court’s jurisdiction over controversies between states is not only original, but also exclusive.  Both attorneys general have nevertheless stated that  are presently weighing alternative options for pursuing their claims against Colorado. 


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