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.

In response to the United States’ brief, the states of Nebraska and Oklahoma filed a Supplemental Brief arguing that Colorado’s actions have indeed directly caused harm to Nebraska and Oklahoma, that the states’ pleading validly states a cause of action, the Supreme Court has original jurisdiction, and that the Court is the appropriate forum to hear the states’ claims. Perhaps most interesting was the states’ proposition that Colorado was directly harming them by, in part, issuing licenses to “an unusually high number of marijuana retailers perched on Colorado’s borders” and sells marijuana even to those criminally convicted for distribution of the substance in neighboring states. The states appear to imply that Colorado’s lack of oversight in the way and to whom it licenses to sell and distribute marijuana amounts to direct harm, especially in light of the nature of the substance and its portability. Another point the Plaintiff states made was that procedurally, the U.S. Constitutional allows that one state may sue another in the Supreme Court without exercising its options at lower court levels. However, though the option is there, it is ultimately at the Supreme Court’s discretion whether to allow such action to proceed before it.

Though the Plaintiff states’ arguments appear to make sense at first blush, the Supreme Court disagreed. Without going into detail, the Court denied review of the Plaintiff states’ complaint by a 6-2 vote. Justice Thomas (joined by Justice Alito) dissented from the Court’s denial, finding the dispute within the exercise of the Court’s original jurisdiction and noted that it should be allowed to proceed. Thomas further noted that “[f]ederal law does not, on its face, give this Court discretion to decline to decide cases within its original jurisdiction.” He continued by positing that where a state alleges significant harms, the Court should at least allow the action to proceed to determine the merits and hear the parties’ explanations of its assertions.

The Court’s denial now seems to pave the way for more litigation against Colorado’s marijuana amendment, but at the district court level. The denial seems to open the door to federal legislation on the legalization of marijuana given the issues arising between and among states on the topic. As Colorado’s Attorney General Cynthia Coffman has expressed, perhaps judicial review was not the “proper” way to “address the challenges posed by legalized marijuana.” Coffman has stated that in order to overcome the inherent problems of legalizing marijuana where its use and sale are illegal at the federal level, Congress needs to act and provide better guidance, likely through new legislative rules and policies.

Only time will tell how this story plays out.