In December of 2014 the states of Colorado and Oklahoma sought permission to sue the state of Colorado directly in the United States Supreme Court. The basis for this request is that Colorado, in enacting "Amendment 64", authorized the manufacture, cultivation, distribution and possession of marijuana and marijuana products in direct contravention of the Federal Controlled Substances Act.
Nebraska and Oklahoma claim that Colorado has taken insufficient steps to ensure that marijuana from Colorado is not unlawfully diverted to their states. They argue that this has led to detrimental effects in their states, including: increased costs to law enforcement, prosecution and incarceration, and diversion of state resources. They seek the intervention of the Supreme Court under the Supremacy Clause of the United States Constitution. If the Supreme Court accepts jurisdiction, Nebraska and Oklahoma are asking the Court to declare Colorado's marijuana laws to be null and void as pre-empted by federal law and to prevent or enjoin Colorado from engaging in the state-wide legalization and regulation of marijuana.
In February of 2015, nine former DEA administrators file a "Friend of the Court" brief urging the court to accept jurisdiction, and not so implicitly urging the Court rule for the Plaintiffs and strike down Colorado's law.
In March Colorado filed its response along with a Friend of the Court Brief authored by the states of Oregon and Washington. All three states have or are in the process of legalizing recreational marijuana. The three states argue that the lower state and federal courts are the proper forums in which to challenge Colorado's laws. They further argue that Federal intervention as requested by the Plaintiff's would violate traditional notions of federalism in which the states are envisioned as the great experimenters in liberty and social change. Colorado points out that the Plaintiffs lawsuit is the result not of the growing legalization movement, but rather with their dissatisfaction at the perceived federal acquiescence in state medical and recreational decriminalization. Lastly they argue the State of Colorado is not responsible for any injuries to states still prohibiting the possession and use of marijuana. Rather it is third party criminals who cause any such injuries: third parties not presently before the Court.
On Monday May 4, 2015, the Court issued an invitation to the U.S. Solicitor General to file their own brief expressing the views of the federal government on the issue. The invitation has folks on both sides of the debate abuzz with speculation. Congress, in the Federal Controlled Substances Act, still lists marijuana as a schedule one controlled substance, and prohibits virtually all possession, manufacture and distribution of marijuana or marijuana products. On the other hand the Executive Branch, through the Department of Justice, maintains a stand-offish policy by advising against federal enforcement actions against those involved in state-authorized medical and recreational programs. It will be interesting to see what the position of the Solicitor General is both with regard to both the jurisdictional and the substantive questions raised by the suit.
The federal approach to state programs authorizing the medical and/or recreational use of marijuana continues to be one in flux. At the moment only tenuous internal DOJ memos on guidance to U.S. Attorneys in the federal prosecution of state marijuana offenses stand between those engaged in such programs and federal criminal prosecution and asset forfeiture. Shaky ground indeed, but interesting in the extreme.