In December 2014, the Attorneys General of Nebraska and Oklahoma asked the Supreme Court for permission to file a lawsuit against the state of Colorado under the court’s original jurisdiction to hear “Controversies between two or more States . . .” under Article III, Section 2, Clause 2.

The nub of the controversy is deceptively simple: Nebraska and Oklahoma are challenging spillover effects from Colorado’s efforts at legalization of marijuana. In 2012, Colorado voters passed constitutional Amendment 64, which created a detailed set of rules providing for legal medical and personal-use marijuana, along with regulation of the commercial establishments that would supply such marijuana. After Amendment 64 passed, the U.S. Attorney’s Office for Colorado announced that it would limit prosecutions of marijuana activity that don’t violate state law. According to the lawsuit, the “significant increase in the trafficking of marijuana” resulting from these decisions has created a significant burden to the plaintiff states.

Nebraska and Oklahoma allege that by authorizing this system for marijuana distribution without adequately ensuring that the neighboring states would not be affected, Colorado has created an interstate nuisance. Amendment 64, they argue, is federally pre-empted by the Controlled Substances Act (CSA). The plaintiff states propose that the high court enjoin Colorado’s enforcement of those pre-empted laws.

Although the suit is still in the early stages and we don’t yet know the precise details of the plaintiffs’ theory, a preview contained in the initial filings suggest that they are expressly relying on the Supreme Court’s 2005 decision in Gonzales v. Raich (2005). Raich held that the Necessary and Proper Clause permits Congress to criminalize possession of marijuana for personal medical use in the exercise of its Commerce Clause powers, even if the marijuana has never actually traveled in interstate commerce.

The reliance on Raich in this case seems to be the starting point for most criticism of the case so far (even though several commentators have also criticized the suit under anticommandeering principles). Eugene Volokh was an early skeptic, predicting that if this suit succeeds, then a gun suit will soon follow. Fellow Bench Memos contributor Jonathan Adler was even more skeptical, criticizing the plaintiffs for embracing a broad reading of Raich:

An interesting wrinkle in the preemption argument, as put forward by the complaining states, is that it expressly relies upon the rationale of Gonzales v. Raich, in which the Supreme Court upheld the application of the CSA to the intrastate possession of marijuana for medical purposes authorized by state law. Raich remains good law, but I am nonetheless surprised to see states such as Oklahoma and Nebraska embrace it so enthusiastically. Most of those who seek to constrain federal power, and expand the reach of state autonomy, see Raich as an obstacle, a decision to be distinguished and narrowed, not a precedent to be expanded.

Adler also contended that if the Supreme Court strikes down Colorado’s laws as pre-empted by the CSA, it would make the problem worse and violate anti-commandeering principles. Worst of all, he suggested, it would call into question their commitment to their principles:

It is curious — and disappointing — to see a suit like this filed by two states that have taken the lead in defending state prerogatives in other policy areas. It is as if their arguments about federalism and state autonomy were not arguments of principle but rather an opportunistic effort to challenge federal policies they don’t like on other grounds. It makes Oklahoma and Nebraska look like fair-weather federalists.

Randy Barnett, who unsuccessfully argued Raich before the Supreme Court, argued that the lawsuit misconstrued Raich entirely, noting that “[i] n no way did it say or even imply that Congress had the power to compel state legislatures to exercise their police power to criminalize the possession of marijuana, or to maintain their previous legislation criminalizing such behavior.” Ilya Somin chimed in, arguing that the suit (if it succeeded) would expand Raich, which he called “one of the Supreme Court’s worst federalism precedents.”

In response, David Rivkin and Elizabeth Price Foley took to the pages of the Wall Street Journal to mount a defense of the suit:

Whatever one thinks about Raich, it is still binding precedent. Colorado’s law is not about a limited, medical-need exemption for marijuana use. It is a full-scale defiance of the CSA. There is no federalism defense to Colorado’s law, unless one believes that Congress’s power to regulate interstate commerce doesn’t include the power to regulate the buying and selling of marijuana, a commercial market that involves interstate transportation, lures sellers and consumers from other states, and now generates more than $7 million in tax revenue for Colorado every month.

And then:

When federal power has been legitimately invoked, states may not go rogue. When they do, sister states that can demonstrate concrete injury are entitled to obtain a court declaration that state laws in conflict with federal law are unconstitutional. Normally such lawsuits wouldn’t be necessary because the federal government would enforce its superior law against rogue states. But these aren’t ordinary constitutional times, and it isn’t “fair-weather federalism” to defend these core constitutional principles.

Randy Barnett responded (emphasis in original):

Rivkin and Price Foley make a telling concession in a single important sentence: “States cannot be required to enforce federal law.” This is the key. States cannot be compelled by Congress to use their legislative powers to outlaw activity. Such “commandeering” was ruled unconstitutional in New York v. United States even where Congress is exercising its Commerce Clause powers. What Rivkin and Price Foley are implicitly conceding is that states are entirely free to “legalize” or decriminalize all drug offences entirely. Put another way, they cannot be compelled to criminalize and prosecute such activity under state law.
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As I acknowledged in my previous post, Nebraska and Oklahoma’s most plausible claim is that, by employing such regulation, Colorado is actively “aiding and abetting” the violation of federal law under the CSA, rather than merely passively permitting such violations. That perhaps while Congress may not mandate that states criminalize marijuana, it could still prohibit or bar states from regulating and thereby “facilitating” marijuana possession, use, and sale.

What is the future of this lawsuit? It’s too early to tell. Colorado has 60 days to respond to the plaintiffs’ motion, after which the plaintiffs have 10 days to file a reply brief. SCOTUSblog’s Lyle Denniston notes that the Supreme Court could deny the plaintiff states’ motion to file the lawsuit outright, which would end the case immediately. That seems unlikely, though, given the lack of a serious jurisdictional problem and the novelty and seriousness of the merits issues. Assuming that the Court wants to proceed to the merits, the case would probably go to a Special Master for development of a record. In other words, this is going to take a while.