Federal Government Supports Cannabis Industry in Critical Supreme Court Case (Nebraska and Oklahoma v. Colorado)

These nine justices will soon be deciding on the fate of cannabis legalization. We are optimistic.
These nine justices will soon be deciding on the fate of Colorado’s cannabis legalization. We are optimistic.

After seven months, the federal government has finally weighed in on the U.S. Supreme Court’s request that it opine on the Nebraska and Oklahoma v. Colorado pot lawsuit. And we’re happy to write that the Solicitor General (i.e., the Fed’s top attorney) is telling SCOTUS (The Supreme Court of the United States) to throw in the towel and not hear the case at all. This is a major political and legal boon for Colorado and for the marijuana industry as a whole.

As you may recall, in December of last year, Nebraska and Oklahoma filed suit against Colorado in the United States Supreme Court, seeking to invalidate Colorado’s cannabis legalization laws. To summarize the complaint:

Nebraska and Oklahoma want the Supreme Court to invalidate Colorado laws implementing its 2012 voter initiative. The states claim Colorado has created a “cross-border nuisance” by increasing the supply of marijuana that could flow throughout the region, something exacerbated by the Obama administration’s policy to avoid interference with state experiments in legalization. Ultimately, Nebraska and Oklahoma argue that Colorado’s legalization measure is pre-empted by federal law and should be struck down.

Both Washington and Oregon filed amicus briefs supporting Colorado’s right to legalize cannabis for adult use. Most recently, SCOTUS asked the Office of the Solicitor General to explain the federal government’s “position” on the litigation, potentially testing the strength of the most recent Cole Memo.

In his amicus curiae brief on behalf of the Solicitor General’s Office, Solicitor General Donald Verrilli, Jr. sides with Colorado. Solicitor General Verrilli argues in the brief that the lawsuit does not fall under the Court’s original jurisdiction and, therefore, SCOTUS has no power to take the case. Specifically, the Solicitor General writes that,

[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.

The brief goes on to say that the injuries allegedly suffered by Nebraska and Oklahoma are not “direct [injuries] to their sovereign interests warranting an exercise of original jurisdiction. At most, they have alleged that third-party lawbreakers are inflicting those injuries, and that Colorado’s legal regime makes it easier for them to do so.”

The Solicitor General argues that this case differs from previous cases where SCOTUS ruled on disputes between states grappling with each other over cross-border pollution, environmental damage inflicted by one state on another, or boundary disputes. Since Colorado has only permitted but not specifically approved of or directed its marijuana commercial activity to impact, affect, or injure the Plaintiff states, the Solicitor General’s position is that neither Nebraska nor Oklahoma can show that they have suffered any direct injury to their sovereign interests warranting review by SCOTUS. The Solicitor General hammers this important point home:

Nebraska and Oklahoma essentially contend that Colorado’s authorization of licensed intrastate marijuana production and distribution increases the likelihood that third parties will commit criminal offenses in Nebraska and Oklahoma by bringing marijuana purchased from licensed entities in Colorado into those States. But they do not allege that Colorado has directed or authorized any individual to transport marijuana into their territories in violation of their laws. Nor would any such allegation be plausible.

It’s great for the cannabis industry to see the federal government’s number one attorney telling SCOTUS that it lacks jurisdiction to hear this case. Nonetheless, these arguments are all based on procedure, not the actual merits of the case. Essentially, the Feds are trying to knock out the suit without having to navigate any of the factual or legal issues in play, including whether federal law preempts Colorado’s recreational marijuana laws.

Though we would really like to see the Feds tout the tenets of the Cole Memo and admit that there is no federal preemption if a state opts to legalize marijuana through a robust licensing and taxation system, if SCOTUS dismisses the suit on procedural grounds it will still be a big ‘W’ for our industry.

Stay tuned.

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