Colorado AG Calls for Views for Solicitor General in Original Jurisdiction Battle with Nebraska and Oklahoma

March 30th, 2015

Nebraska and Oklahoma filed suit against Colorado in the Supreme Court’s original jurisdiction, raising various nuisance other claims to demonstrate they were injured by the Centennial State’s decision to decriminalize marijuana. From the outset, I thought this case was directed at the wrong defendant. The true  party to blame is the Executive Branch’s failure to enforce provisions of the Controlled Substances Act in states that legalized marijuana. This abdication fits in more broadly with the Obama Administration’s repeated failures to take care that the laws are faithfully executed. In addition to the drug laws, we have seen similar non-enforcement decisions with respect to immigration, Obamacare, No Child Left Behind, and other laws that proved inconvenient to the President.

Since the original jurisdiction case was filed, I was secretly hoping that the Court would call for the views of the Solicitor General. I would love to see how the government justifies, on the merits, this non-enforcement of the law. Now, in its brief in opposition to the motion for leave to file a complaint, the Colorado AG has explicitly called for the views of the federal government, dubbing it an “indispensable party.”

Colorado understands the Plaintiff States’ frustration that national marijuana policy now hinges on a series of executive memoranda articulating a policy of “prosecutorial discretion.” See, e.g., Cole Memo at 3. But, again, although the Plaintiff States are willing to challenge the Administration’s non- enforcement of federal law, see Texas v. United States, 2015 U.S. Dist. LEXIS 18551, they have not done so here.

This demonstrates the need for the federal government’s involvement in this case. The Complaint and Brief in Support raise questions of federal enforcement policy that are “distinctively federal interests, best presented by the United States itself.” See Maryland v. Louisiana, 451 U.S. at 745 n.21 (1981). As explained above in the Statement, Colorado’s marijuana regulations grew out of the federal government’s policy of deferring to state-level efforts to legalize and regulate marijuana within their borders. A court order invalidating Colorado’s regulatory laws would not close the alleged “gap” in the CSA, a statute that only the federal government may enforce. See above at 24–27.9

9 Nor would a Court order against Colorado ensure federal compliance with international treaties. See Compl. ¶¶ 23–30. Indeed, the United States has argued in previous cases that “Ensuring that treaty obligations are satisfied is a distinctly federal interest that is best presented . . . by the United States . . . .” Mem. in Supp. of Mot. of U.S. to Intervene at 9, Texas v. New Mexico, No. 141, Original (Feb. 2014).

The Plaintiff States’ claims are therefore “dependent upon the rights and the exercise of an authority asserted by the United States.” Arizona v. California, 298 U.S. 558, 571 (1936). The United States—or, at least, the Department of Justice—is an indispensable party. See California v. Arizona, 440 U.S. 59, 61–63 & n.3 (1979). That means either the federal government must intervene as a defendant or the suit must be dismissed. See id.; Maryland v. Louisiana, 451 U.S. at 745 n.21 (“We have often permitted the United States to intervene in appropriate cases where distinctively federal interests, best presented by the United States itself, are at stake.”); Texas v. New Mexico, 352 U.S. 991 (1957) (“[T]he bill of complaint is dismissed because of the absence of the United States as an indispensable party.”); see also Texas v. New Mexico, 134 S. Ct. 1783 (2014) (granting leave for the United States to intervene in a case with implications for a federal water project and the government’s relationship with Mexico).

Agreed entirely. The party to be charged here is the United States, not Colorado.

Before dismissing the complaint, the Court should Call for the Views of the Solicitor General and get the United States government on record of how it legally justifies its failure to enforce provisions of the CSA.