In what was generally considered to be the biggest challenge to Colorado’s recreational cannabis laws to date, the U.S. Supreme Court denied a motion by the states of Nebraska and Oklahoma seeking to file a Bill of Complaint, effectively refusing to hear the arguments brought against the State of Colorado.

In their Complaint, Nebraska and Oklahoma argued that Colorado does not have authority to pass laws that conflict with the federal prohibition on marijuana. Allowing Colorado to pass such laws, the plaintiffs claim, violates the Supremacy Clause of the U.S. Constitution. The plaintiff states challenged Colorado’s ability to license and regulate the production and sale of cannabis, arguing that Colorado’s legalization of marijuana for recreational use has “increased trafficking and transportation of Colorado-sourced marijuana” into their territories, requiring them to expend significant “law enforcement, judicial system, and penal system resources” to combat the alleged trend. The plaintiffs made the motion to file a Bill of Complaint in the Supreme Court pursuant to the Court’s original jurisdiction. The original jurisdiction of the U.S. Supreme Court is governed by Article III, section 2 of the United States Constitution and Title 28 of the United States Code, section 1251. Most commonly, original jurisdiction cases involve suits between states as parties.

While the Supreme Court declined to hear the case without opinion, the decision was not without dissent on both procedural and substantive grounds. Procedurally, citing past instances where the Court has declined to exercise original jurisdiction, Justice Clarence Thomas wrote a four-page opinion in which he stated that the doctrine of original jurisdiction contained in Article III section 2 clause 2 is unambiguous and not discretionary.

Substantively, Justice Thomas referenced past decisions where the Court referred to the Controlled Substances Act (CSA) (21 USC section 812(c)) as a statute that established “a comprehensive regime to combat the international and interstate traffic in illicit drugs” (Gonzales v. Raich, 545 U.S. 1, 12 (2005). Conversely, Colorado’s Amendment 64 to the state’s Constitution served to legalize, regulate, facilitate, license and tax an item that is specifically prohibited by the CSA. Justice Thomas argued in the dissent that these past decisions regarding the importance and function of the CSA coupled with the question of whether Colorado’s Amendment 64 preempts the CSA constitutes a controversy between two or more states that could significantly harm the sovereign interests of the plaintiff states and that these facts justify allowing their Complaint to proceed.

While Justice Thomas’s dissent was joined by Justice Samuel Alito, generally considered the two most conservative justices, the decision to deny the plaintiffs’ motion for leave to file a Bill of Complaint was undoubtedly hurt by the recent death of Justice Antonin Scalia. Since the earliest days of the United States, the Supreme Court has shifted between conservative and liberal interpretation of its original jurisdiction, but has historically erred on the liberal position of using original jurisdiction “sparingly.” Utah v. United States, 394, U.S. 89 (1968); California v. Southern Pacific Co., 157 U.S. 229 (1895).


While denying the motion by Nebraska and Oklahoma without written decision or comment aside from the dissent, the Supreme Court did not address the issue of preemption and whether the regulation of cannabis under state law only constitutes a direct conflict with federal law. However, the Supreme Court’s silence may be worth a thousand words.