In January and April I highlighted the briefs filed in one of the rare cases brought under the Supreme Court’s original jurisdiction, Nebraska & Oklahoma v. Colorado, which alleges that the plaintiff states are being damaged by Colorado’s scheme to authorize and enable violations of federal drug law. Recently I obtained the plaintiffs’ reply brief, which I’ve posted here.

Some highlights, first on Colorado’s challenged action (citations omitted):

The question here is whether a State can affirmatively facilitate the violation of federal law. To be sure, Plaintiff States are not challenging Colorado’s decriminalization of marijuana. Plaintiff States agree that Colorado is free to make policy decisions that part ways with its neighboring states. Rather, Plaintiff States challenge only Colorado’s creation of a regulatory scheme that affirmatively facilitates the violation of federal law.

On Colorado’s responsibility for the policy:

As long as the federal government possesses the power to establish comprehensive national drug policy, Colorado cannot roguishly facilitate the dismantling of that policy. The current Presidential Administration’s non-enforcement policy cannot be viewed as a waiver of Colorado’s obligation to abide by federal law. . . . The Presidential Administration’s failures to enforce the law did not transform Colorado into a largescale hub for the industrial production and distribution of illegal marijuana. Rather, Colorado did so by its own actions.

And:

Plaintiff States should not become corridors for trafficking federal contraband because of Colorado’s choice to participate in and profit from the illegal marijuana market. Given this direct assault on the health and welfare of Plaintiff States’ citizenry, Plaintiff States submit Colorado’s illegal action carries such seriousness as to invoke this Court’s original jurisdiction.

On the Supremacy Clause:

There is precedent to allow an original jurisdiction action under the Supremacy Clause. In Maryland v. Louisiana, 451 U.S. 725 (1981), several states sued Louisiana challenging the constitutionality of the “first-use” tax that Louisiana imposed on natural gas imported into the state. The Court recognized the well-settled principle that “a state statute is void to the extent it conflicts with a federal statute – if, for example, ‘compliance with both federal and state regulations is a physical impossibility’ . . . or where the law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’ ” The Court accordingly held that the Louisiana law “violate[d] the Supremacy Clause” and enjoined its further enforcement.