The U.S. Supreme Court on Monday asked for views from the Obama administration on a lawsuit filed by Nebraska and Oklahoma that contends Colorado's regulation of marijuana is causing an increase in drug crimes in their states.
"The Solicitor General is invited to file a brief in this case expressing the views of the United States," the court said in the order.
This kind of court order, called a CVSG -- or call for the views of the solicitor general on behalf of the U.S. government -- is commonly requested, and doesn't necessarily mean the court is moving forward with the case.
"This is a fairly routine procedural step, and does not signal one way or another what the Supreme Court will do," said attorney Brian Vicente, one of the key drafters of Colorado's 2012 amendment that legalized recreational marijuana, to The Huffington Post. Vicente added that the court frequently seeks the input of the solicitor general on issues in which the Department of Justice has "much less of an interest."
"The brief is likely to focus on the procedural defects of Oklahoma and Nebraska’s complaint," Vicente said.
Dan Riffle, director of federal policies with Marijuana Policy Project, told HuffPost this is "exactly the kind of case" where a CVSG is expected to be requested by the court.
"Because this is involves issues that impact how the DOJ does its job, and because the DOJ has been grappling with the tension between state and federal marijuana laws for years, SCOTUS would like the Justice Department’s views on the case," Riffle said.
Nebraska Attorney General Jon Bruning and Oklahoma Attorney General Scott Pruitt filed the lawsuit in December, alleging Colorado's legalization of marijuana caused a surge of marijuana trafficking in their states and “created a dangerous gap in the federal drug control system."
The states argue that under the U.S. Constitution's Supremacy Clause, Colorado's legalization of recreational marijuana is unconstitutional because marijuana remains illegal under federal law. States that have legalized marijuana for recreational or medical purposes rely on guidance from Attorney General Eric Holder's office urging federal prosecutors to refrain from targeting state-legal marijuana operations. But the clause states that, in general, federal law takes precedence over state law.
The states' suit doesn't target the actual legalization of marijuana; rather, it seeks to overturn Colorado's regulatory system. If achieved, this would leave "legalization intact" while neutering the state's ability to police state-licensed marijuana businesses, Colorado Attorney General Cynthia Coffman wrote in a brief filed with the high court in March defending the state marijuana laws. Coffman requested the court dismiss the lawsuit.
There is no deadline for Solicitor General Donald B. Verrilli Jr. to respond to the order, but as the high court legal analysis blog SCOTUSBlog explains about the CVSG process, previous SGs have filed "invitation" briefs three times a year: late May, August and December, and when they are filed, the court tends to take the SG's position very seriously.
"Many scholars have noted that when the SG makes a recommendation to the Court, the Court is more likely than not to follow that recommendation, sometimes substantially so," SCOTUSBlog reads.
Attorney Mike Evans, who represents the case of a quadriplegic medical marijuana patient from Colorado who was fired for taking his medicine while off duty and is very familiar with the disparity between federal and state marijuana law, said that while the court does find these SG briefs "persuasive," they are "not binding."
"The only binding authority in the [marijuana] question is Congress," Evans said. Meaning Congress, not the courts, is best suited to resolve the tension between state and federal marijuana laws by passing legislation that would protect states from federal interference. There happens to be legislation that has already been introduced that would do just that -- the "Respect State Marijuana Laws Act," introduced in the House by Rep. Dana Rohrabacher (R-Calif.) in April.
The Supreme Court has not yet decided whether it will accept the case, and MPP's Riffle is skeptical it will.
"Nebraska and Oklahoma lack standing to bring this suit," Rifle said. "But even if the Court did get to the merits of the case, most of us familiar with Supreme Court jurisprudence on this issue, and in particular the anti-commandeering doctrine, expect the court to say that Colorado’s regulatory regime for marijuana is not preempted by federal law."
Nebraska and Oklahoma's case leans on the federal government's supremacy over states. However, the anti-commandeering principles of the 10th Amendment stand in opposition to the kind of broad readings of the Supremacy Clause that the states have offered in their case against Colorado, serving as a kind of counterweight to that federal supremacy argument. If the court takes that into account, as Riffle argues they likely would, it would leave a significant dent in the states' case against Colorado.
"On the one hand this [CVSG] is concerning since it could be a sign that the court is taking the case more seriously than I think is actually merited," Tom Angell, chairman of drug policy reform group Marijuana Majority, told HuffPost. But he hopes clearer federal policy is the ultimate result.
"This could be a good opportunity for the Obama administration to further and more clearly articulate the president's position that states should be able to legalize marijuana if that's what their voters want," Angell added.