Nebraska and Oklahoma Take Colorado to the Supreme Court Over Legalized Marijuana

Earlier this month, the Attorneys General of Nebraska and Oklahoma filed a lawsuit on behalf of their respective states, naming the state of Colorado as the defendant. Nebraska and Oklahoma allege that Colorado’s legalization of marijuana undermines their ability to maintain their own prohibitions of marijuana because Colorado takes inadequate measures to prevent legal intrastate marijuana from crossing state borders, where it enters the illegal market. Taking advantage of a provision of the Constitution covering cases “in which a State shall be Party,” Nebraska and Oklahoma filed their complaint in the Supreme Court of the United States.

Nebraska and Oklahoma v. Colorado raises a number of important procedural and substantive questions, including these: Does Colorado’s marijuana legalization violate federal law or does it merely fail to enforce federal law? And given the essential role that the federal marijuana prohibition plays in the plaintiff states’ case, should the lawsuit be dismissed on the ground that their real complaint lies with the federal government, not Colorado?

The case also smacks of political irony. The Attorneys General who brought this lawsuit—Jon Bruning of Nebraska and Scott Pruitt of Oklahoma—are both ideologically conservative Republicans. Yet their case should ultimately fail because it contravenes conservative Supreme Court precedents regarding federalism. Their best hope of success would be to drop this suit and re-file an action against the federal government. Yet to have any hope of success in that endeavor, they would need to rely on an important liberal Supreme Court precedent about standing and global warming.

The Supreme Court’s Original Jurisdiction

Nearly all of the cases before the Supreme Court come by way of appeal from the state courts and lower federal courts. However, the Constitution also grants the high Court “original Jurisdiction” over a small category of cases, including those in which one state sues another—often over border disputes. For example, in a 1998 original jurisdiction case, the Court ruled that nearly all of Ellis Island was in New Jersey, rather than in New York, as millions of immigrants had been told.

The original jurisdiction disputes between states typically turn on principles of property, contract, or tort law, but these are state law subjects. Moreover, they are typically common law subjects, meaning that the relevant principles are based solely on judicial precedents, rather than any state statute or regulation. It would be unfair to use the substantive law of any of the party states in a state-versus-state case; yet as first-year law students learn when they study the landmark case of Erie R.R. v. Tompkins, there is no general federal common law.

So where does the Supreme Court find the operative legal rules and standards to decide state-versus-state cases? The Court applies a body of limited-purpose federal common law that the Justices assemble from prior federal precedents, federal policies implicit in statutes and other authoritative texts, an amalgamation of all of the states’ common law, and, ultimately, their own sense of justice.

The Plaintiff States’ Preemption and Treaty Claims

By contrast with most Supreme Court original jurisdiction plaintiffs, Nebraska and Oklahoma do not rely on federal common law principles. Instead, they contend that Colorado’s legalization of marijuana violates a federal statute—the Controlled Substances Act (CSA)—and various treaties to which the United States is a party.

The treaty claims appear to be insubstantial because Nebraska and Oklahoma offer no evidence that the underlying treaties are self-executing, that is, that they impose domestically enforceable legal obligations without the need for implementing federal legislation. Yet as Chief Justice Roberts wrote for the Supreme Court in the 2008 case of Medellin v. Texas, absent specific evidence, treaties are presumed to be non-self-executing.

The CSA claim is at least superficially more plausible. Federal statutes do indeed displace contrary state laws, and in legalizing marijuana Colorado could be said to be acting contrary to the CSA. Thus, Nebraska and Oklahoma argue that the CSA’s provisions making marijuana illegal preempt the Colorado law making marijuana legal.

Upon inspection, however, the preemption argument confuses state violation of federal law with state failure to enforce federal law. A historical example and a thought experiment will illustrate how.

Misunderstanding Preemption

In the early Nineteenth Century, New York granted a monopoly to steamboat inventors Robert Fulton and Robert Livingston to operate along the state’s waterways. However, a federal statute enacted in 1793 already provided that a federal coasting license was sufficient for operation in those same waters. In the landmark 1824 decision in Gibbons v. Ogden, the Supreme Court held that the federal law was a valid exercise of Congress’s power to regulate interstate commerce and that, as such, it preempted the New York monopoly. State law could not render illegal what federal law affirmatively licensed.

Colorado’s legalization of marijuana does not present the same problem. It does not render illegal any act that federal law declares to be legal. Still, one might wonder, isn’t the mirror image—state law declaring legal what federal law declares to be illegal—also problematic? The short answer is no.

Consider a thought experiment. Suppose that Colorado had no law whatsoever regarding marijuana. Would that be preempted by federal law? Surely not. Federal law operates of its own force and states are not under any obligation to enact copies of federal law.

Indeed, under the 1992 Supreme Court ruling in New York v. United States, Congress lacks the constitutional power to require states to enact laws. Such “commandeering” of state legislatures, the Court’s conservative majority has insisted, would contravene state sovereignty.

Nor may Congress insist that state executive officials enforce federal law. That too would be impermissible commandeering, according to the opinion of Justice Scalia for a mostly conservative 6-3 Supreme Court majority in Printz v. United States. Hence, Colorado was not obligated—and could not constitutionally have been given an obligation—to enact its own laws forbidding marijuana or to enforce federal laws forbidding marijuana.

It should now be apparent that the Nebraska and Oklahoma lawsuit rests on a conceptual error. The Colorado laws purporting to “legalize” marijuana in fact do no such thing. What they actually do is to modify state laws that previously prohibited marijuana, so that now people who comply with the state’s regulatory requirements will not be subject to state prosecution for marijuana cultivation, distribution, or possession. But because Colorado has and can have no federal obligation to forbid marijuana at all, this substantial loosening of its prohibition does not contravene federal law. There is no preemption of state non-criminalization of marijuana via the CSA—and if there were, that would contravene the anti-commandeering rules of New York and Printz.

The Nuisance Alternative

Accordingly, Nebraska and Oklahoma should lose their case against Colorado. However, two other avenues of redress may be open.

The plaintiff states might amend their complaint to abandon preemption and instead rely on the common law tort of nuisance. In ordinary private litigation, a landowner can sue a neighbor for nuisance when the defendant uses the property in some noxious way that causes external harm—for example, by polluting air or water. The Supreme Court has long allowed nuisance suits in its original jurisdiction, as in the 1907 case of Georgia v. Tennessee Copper Co. An intriguing draft article by Concordia University law professors Chad DeVeaux and Anne Mostad-Jensen proposes that Colorado could be subject to suit by its neighbors not on preemption grounds, but on the ground that the CSA establishes for purposes of federal law that marijuana is a nuisance with harmful spillover effects. In recognition of the anti-commandeering principle, DeVeaux and Mostad-Jensen would only allow recovery for damages, not injunctive relief.

Although the DeVeaux/Mostad-Jensen proposal is much more subtle and sophisticated than the actual lawsuit filed by Nebraska and Oklahoma, it still may founder on the anti-commandeering principle. As a practical matter, holding a state liable for failing to enact or enforce federal law seems tantamount to obliging the state to enact or enforce federal law, in contravention of the anti-commandeering cases. Likewise, if the anti-commandeering principle has bite, Congress should not be permitted to circumvent it simply by describing the relevant action as a nuisance.

Suing the Federal Government

That leaves Nebraska and Oklahoma with one remaining option: They could sue the Obama Administration for its failure to enforce the CSA in Colorado.

In general, plaintiffs lack standing to sue the government for its failure to enforce the law against third parties. As Justice Scalia wrote for the Supreme Court in the 1992 case of Lujan v. Defenders of Wildlife, “to convert the undifferentiated public interest in executive officers’ compliance with the law into an ‘individual right’ vindicable in the courts is to permit Congress to transfer from the President to the courts the Chief Executive’s most important constitutional duty, to ‘take Care that the Laws be faithfully executed.’”

However, the standing limits appear to be relaxed when the plaintiff is a state rather than a private party. Hence, in the 2007 case of Massachusetts v. EPA, Justice Stevens, writing for the Court and relying on the 1907 Tennessee Copper case, explained that when the states entered the Union they surrendered part of their sovereignty in the expectation that the federal government would enforce federal law—in that case, the regulation of greenhouse gases.

The Lujan and Massachusetts cases divided the Court ideologically, with liberals favoring broad standing and conservatives taking a narrow view of standing in both cases. For the conservative Attorneys General of Nebraska and Oklahoma to establish standing to sue the Obama Administration over marijuana non-enforcement, they would therefore need to rely on the liberal view of standing.

Of course, even if Nebraska and Oklahoma establish standing to sue the federal government, they could lose on the merits. But such a lawsuit could fare better than the meritless one they filed against Colorado. It would also have the virtue of honesty, as their real gripe appears to be with the federal government, not Colorado.

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