The U.S. Solicitor General filed a brief in the U.S. Supreme Court December 16, 2015 opposing Nebraska and Oklahoma’s challenge to Colorado’s legalization of marijuana. Last December, the states of Nebraska and Oklahoma filed a motion in the U.S. Supreme Court seeking permission to file suit against the state of Colorado, arguing that Colorado’s legalization of marijuana is unconstitutional. They argue that the “legal” marijuana in Colorado overflows into its neighboring states, creating law enforcement problems for those states.  Among other things, Nebraska and Oklahoma argue that Colorado’s law is preempted by federal law which provides that marijuana is illegal.

In May, the Supreme Court invited the U.S. Solicitor General to file a brief expressing the view of the United States. The Solicitor General now states that the United States opposes Nebraska and Oklahoma’s motion on the following grounds:

• The Supreme Court should not exercise original jurisdiction because Colorado has not directed or authorized injury to its neighboring states. Where a state permits – but does not direct or approve – injury to another party, the Court typically declines to exercise original jurisdiction. There is no direct injury to Nebraska and Oklahoma inflicted by Colorado; rather, Nebraska and Oklahoma argue that third parties will commit criminal offenses in their states by bringing marijuana purchased in Colorado into their states.

• Because the Colorado law only permits individuals to possess one ounce or less of marijuana, it is not likely that Nebraska and Oklahoma are suffering great loss or serious injury in terms of law enforcement expenditures.

• Neither the Supremacy Clause nor the Controlled Substances Act provide a private cause of action.

• Nebraska and Oklahoma could sue in a district court action.

Nebraska and Oklahoma will have an opportunity to respond to the brief before the Supreme Court makes its decision.

The Solicitor General’s brief is being touted as a show of the federal government’s support for legalization of marijuana.  According to the White House’s Office on National Drug Control Policy, however, “the Administration steadfastly opposes legalization of marijuana and other drugs because legalization would increase the availability and use of illicit drugs, and pose significant health and safety risks to all Americans, particularly young people.”