Obama Administration Backs Colorado in Supreme Court Lawsuit

Published on December 17, 2015 · Last updated July 28, 2020

The White House “steadfastly opposes legalization of marijuana,” its website says, but the Obama administration nevertheless sided this week with Colorado in a lawsuit seeking to overturn its recreational cannabis law.

Nebraska and Oklahoma filed suit in U.S. Supreme Court a year ago, arguing that legalization in Colorado has created a burden on law enforcement in neighboring states as consumers bring cannabis across borders (never mind the fact that Nebraska has proposed its own medical marijuana legalization bill). In a brief filed Wednesday, the Justice Department’s top courtroom lawyer pushed back, urging the high court to toss the case.

U.S. Solicitor General Donald Verrilli Jr. wrote that Nebraska and Oklahoma aren’t claiming that Colorado’s law “directed or authorized” anyone to bring cannabis across state lines.

“At most, they have alleged that third-party lawbreakers are inflicting those injuries, and that Colorado’s legal regime has made it easier for them to do so,” Verrilli wrote. Accepting the case, he added, “would represent a substantial and unwarranted expansion of this court's original jurisdiction.”

States are able to sue one another in the Supreme Court directly, one of the few examples in which justices aren’t considering a lower court’s decision.

But Nebraska and Oklahoma’s case is unusual. If the allegations were legitimate grounds to sue Colorado, one might ask whether states with restrictive gun laws should sue more permissive states when individuals illegally smuggle firearms across state lines. Criminals in California used about 6,000 guns from other states last year, the New York Times reported last month, “mainly from those with few gun-buying restrictions like Arizona and Nevada.”

Verrilli’s brief also notes that Colorado’s law limits cannabis possession to an ounce or less. Carrying such small amounts across the border doesn’t cause neighboring states “to suffer great loss or any serious injury in terms of law-enforcement funding or other expenditures," he wrote.

Justices in May invited the Obama administration to weigh in.

While the Supreme Court could still choose to hear the case, cannabis advocates in Colorado cheered the Obama administration's move. Both Nebraska and Oklahoma prohibit cannabis use.

“Nebraska and Oklahoma’s primary problems are their own punitive policies regarding marijuana use and possession,” said Art Way, Colorado director for the Drug Policy Alliance. “It is not Colorado’s fault these states look to spend such a high degree of law enforcement and judicial resources on marijuana prohibition."

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Ben Adlin
Ben Adlin
Ben Adlin is a Seattle-based writer and editor who specializes in cannabis politics and law. He was a news editor for Leafly from 2015-2019. Follow him on Twitter: @badlin
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