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High Court Puffs, Puffs, Passes on Interstate Marijuana Suit

By Casey C. Sullivan, Esq. on March 21, 2016 12:02 PM

This morning, the Supreme Court declined to hear a challenge to Colorado's legalized marijuana brought by neighboring states Oklahoma and Nebraska. Both Oklahoma and Nebraska had sued the state over instate crime connected to Colorado's legal weed industry.

The denial should calm the nerves of marijuana enthusiasts, as the case threatened to end Colorado's experiment with legal pot. But, a dissent to the denial shows that not all of the High Court is ready to let Oklahoma and Nebraska's complaints slide.

Rocky Mountain High

In case you missed it, the Centennial State legalized marijuana way back in 2012. And we're not just talking medical marijuana, here, but recreational. That means any adult can legally buy and consume marijuana throughout the state, from Breckenridge to Grand Junction. Fodor's even has a guide to "pot tourism" in Colorado.

Colorado and Washington State were the first jurisdictions to embrace full marijuana decriminalization. And the federal government, which still classifies marijuana as a Schedule I drug, has been fine with it so far. The 2013 Cole Memo announced that the Department of Justice would not focus enforcement resources on actors who obeyed the laws of their state, even if those laws conflicted with federal drug laws.

Colorado Weed as Cross-Border Nuisance

Nebraska and Oklahoma were less comfortable with Colorado's weed policy. The two states sued Colorado directly in the Supreme Court, relying on the Court's original jurisdiction over controversies between two or more states.

The grounds? Colorado had created an interstate nuisance, allowing marijuana to flow from the Rocky Mountains "into neighboring states, undermining Plaintiff States' own marijuana bans, draining their treasuries, and placing stress on their criminal justice systems," according to the complaint.

They sought to enjoin Colorado's marijuana program, effectively shutting down the nation's first legal marijuana market.

They won't get their way just yet, though. In a 6-2 vote, the Supreme Court denied Nebraska and Oklahoma's motion for leave to file a bill of complaint.

Justices Thomas and Alito Dissent

The denial wasn't unanimous, however. Justice Thomas penned a dissent, which Justice Alito joined. Rather than a rehash of "this is your brain on drugs," the dissent focuses on the discretionary nature of the Court's grants of original jurisdiction. That discretion, Justice Thomas notes, is not found "on its face" in the Constitution. The challenge to Colorado's marijuana laws "presents an opportunity for us to reevaluate our discretionary approach" to original jurisdiction, he writes.

Passing on the case at this point, however, does not signal the end of the road for Oklahoma and Nebraska. The states are still free to pursue their claims in federal district court.

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