Colorados

Citing a host of constitutional, legal and practical problems, the Obama administration urged the Supreme Court on Wednesday not to allow two states to sue Colorado directly in the Supreme Court over their claim of cross-border crime traced to their neighbor’s regime of legal sales of marijuana.

Nebraska and Oklahoma do have the option, the administration argued, to try to challenge the Colorado program in lower courts — though it suggested that such an approach may have problems, too.

Under the Constitution, the Supreme Court has the authority to try, as an original trial court, controversies between states. It has great discretion to do so or not, and U.S. Solicitor General Donald B. Verrilli, Jr., noted that permission is seldom granted. Mainly, he argued, it is the right approach only when one state is the direct cause of harm to another.

Colorado, the Solicitor General contended, is not directly harming either Nebraska or Oklahoma, and any criminal activity inside those states is the result of actions by third parties, not instigated by Colorado’s marijuana policy.

One year ago, the two states filed their plea to sue Colorado directly in the Supreme Court, contending that there is no other court where they could do so. They do not challenge Colorado’s legalization of personal and medical use of marijuana, but they do object to the regime’s manufacture, possession, and distribution of marijuana — in short, its commercial aspects.

Solicitor General Verrilli, asked by the Court for the federal government’s views, outlined the federal policy against marijuana marketing, which has been relaxed so that it allows states to do as Colorado and Washington State have done in legalizing the availability of the drug in small quantities. That is the gap in federal enforcement that Colorado’s neighbors have argued has led to marijuana buyers bringing the drug back across their borders.