Lawsuit To End Marijuana In Colorado: Supreme Court Asks Obama Administration to Weigh In

The 1925 Supreme Court. Let's hope that much has changed since then....
The 1925 Supreme Court. Let’s hope that much has changed since then….

The dramatic legal saga spurred by the lawsuit brought by Oklahoma and Nebraska against the State of Colorado seeking to strike down Colorado’s recreational marijuana laws continues. This time though, the Supreme Court justices are getting more involved. Or, at least, SCOTUS is thinking of getting more involved in the litigation, but it wants the Obama Administration’s opinion about the suit first.

To refresh your memory, in December last year, Nebraska and Oklahoma filed suit against Colorado in the United States Supreme Court, seeking to invalidate Colorado’s cannabis legalization laws. Here is a quick summary of the complaint:

Nebraska and Oklahoma want the Supreme Court to invalidate Colorado laws implementing a 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.

Both Washington and Oregon filed amicus briefs supporting Colorado’s right to legalize cannabis for adult use.

What is important to remember is that when states sue each other and invoke the jurisdiction of the Supreme Court (which only very rarely happens), the Supreme Court has original jurisdiction power, rather than appellate power. In this type of scenario, SCOTUS does not host a trial on the merits of the case; it typically selects and assigns an expert to the case to gather facts and make recommendations about how SCOTUS should proceed.

On Monday, the newest development in the case is that SCOTUS asked the Justice Department (specifically, the Office of the Solicitor General) to essentially explain its “position” relative to the litigation. Though a DOJ response is not expected for months, we are hoping that the DOJ will reiterate to SCOTUS its position set forth in the most recent Cole Memo.

According to the Wall Street Journal, at least one high level legal scholar has opined that the lawsuit should and likely will be dismissed on procedural grounds:

University of Texas law professor Sanford Levinson said odds were slim that the justices would allow Nebraska and Oklahoma to circumvent the normal process of filing suit in district court and appealing to circuit court before seeking Supreme Court review. “The real lawsuit shouldn’t be filed against Colorado. It ought to be Nebraska and Oklahoma v. Lynch, to force the attorney general to enforce federal law which undoubtedly is supreme over Colorado law,” Mr. Levinson said.

We are not quite so sure.

The last time SCOTUS weighed in on a marijuana case of significant magnitude, it did not go well for the marijuana industry. Nonetheless, much has changed since Gonzales v. Raichwhich is evident by the number of states that have chosen to end marijuana prohibition and by the recent California federal court decision to hear evidence on the constitutionality of marijuana as a Schedule I drug under federal law.

It is anyone’s guess as to how SCOTUS will handle this potentially critical case of first-impression. So, be sure to stay tuned.