Oregon and Washington Back Colorado Marijuana Regime at the Supreme Court

Colorado's Recreational Marijuana Regime
These Nine Supreme Court justices will be deciding the fate of Colorado cannabis

Last week, the Attorneys General from Oregon and Washington filed a joint brief in support of Colorado, which is facing a Supreme Court law suit brought by Nebraska and Oklahoma (I will refer to them as the NO states) seeking to shut down Colorado’s recreational marijuana program. Their brief attacks the merits of the NO states’ complaint by arguing that the Supreme Court does not have jurisdiction to hear the case and that the NO states do not have standing to bring the case.

Let’s unpack these arguments.

First, they argue that the Court should not invoke “original jurisdiction” — a special provision in the Constitution that allows certain litigants (like States) to use the Supreme Court like a trial court instead of an appellate court. The Supreme Court does not usually hear a case until it has been litigated in state or federal trial and appellate courts, and they (Washington and Oregon) urge the Supreme Court to reject original jurisdiction because the case does not implicate competing sovereign interests and because a trial court is better suited to provide the NO states the relief they seek.

Original jurisdiction cases typically involve disputes over interstate pollution, where one state finds itself downstream or downwind from a source of pollution in a neighboring state. In that situation, the affected state “has no sovereignty to command the winds and waters” and has no option but to sue the state from which the pollution originates. In this instance, the NO states can act to stop the diversion of cannabis into their own states simply by increasing police interdiction efforts along their borders. The NO states claim that they should not have to do this, but Oregon and Washington note that the Federal Controlled Substances Act does not preempt state regulation of marijuana and the federal government cannot commandeer states to enforce federal law. In other words, there is nothing stopping the NO states from using additional funds to “protect” their borders if they so choose. Oregon and Washington correctly characterize the case as a “policy dispute” that does not require Supreme Court intervention.

Oregon and Washington also argue that the NO states lack standing because the relief they seek would not redress their grievance, an essential element of constitutional standing. They point out that the relief sought would actually make the problem worse: stripping Colorado’s ability to regulate marijuana would actually increase the spillover effects on neighboring states, not reduce them.

From our perspective (having offices in both Washington and in Oregon) we are delighted to see these two states step in to help defend Colorado, and by doing so, defend their own respective legalization programs.  Will Washington and Oregon’s intervention be the knockout punch to this half-baked lawsuit? No, but only because the lawsuit was doomed from the start, with or without other states’ help.

For more on this case, check out Nebraska And Oklahoma Sue Colorado for Legalizing Cannabis.