Two years after Colorado amended its constitution to legalize and regulate the recreational use of marijuana, in December 2014, the states of Nebraska and Oklahoma filed a motion in  the U.S. Supreme Court for leave to file a complaint against the state of Colorado, ultimately seeking to invalidate portions of Colorado’s constitutional amendment concerning marijuana and to enjoin its implementation.

Upon request by the Supreme Court, the United States submitted an amicus brief in support of its views on the enforcement of the Controlled Substances Act (“CSA”) in states wherein the sale and distribution of marijuana has been de-criminalized.  After citing to memoranda from 2009 and 2013—in which the Department of Justice provided instructions in reviewing the prosecution of CSA violations related to marijuana use in these states—the DOJ expressed the view that the Plaintiff states’ motion should be denied.  The United States proposed denial of the motion because the case was not “appropriate… for the exercise of [the Supreme Court’s] original jurisdiction” and “[e]ntertaining 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 [the Supreme Court’s] original jurisdiction.”

The United States continued by citing Supreme Court precedent related to the Court’s original jurisdiction in disputes between or among states.  “The model case for invocation [of such] is a dispute between States of such seriousness that it would amount to casus belli if the States were fully sovereign” (emphasis added).  The United States rejected the idea that the case at bar fell into the above category, and provided examples where original jurisdiction was found (e.g., claims that an agent of the defendant state was engaging in environmental harms against plaintiff state).  Further, the United States argued that original jurisdiction is proper only where one state’s actions amounted to the direct cause of harm to another state.  Essentially, the United States argued that the Supreme Court should hear cases only where one state’s actions were the direct cause of another state’s harm.  The Plaintiff states’ contention that the de-criminalization of the sale and distribution of marijuana in Colorado would increase the amount of third-party crime in their states simply did not meet the referenced standards as Colorado did not direct or authorize such action, the United States argued.

Moreover, the United States appeared unpersuaded by the Plaintiff states’ assertion that the Supreme Court was the only venue in which they could sue Colorado.  However, the United States pointed out that the states could engage in suit at the district court level, and noted that two suits raising the issues at bar were pending in the District of Colorado courts. …
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