RYAN ALEXANDER-TANNER

Is the US Supreme Court going to rule on marijuana legalization?

YES, IN A WAY. Last year around this time, Nebraska and Oklahoma ("NO States") filed suit against Colorado in the Supreme Court of the United States (SCOTUS), seeking to invalidate neighboring Colorado's recreational cannabis laws. SCOTUS invited the Obama administration to weigh in, which finally happened two weeks ago.

Before I get to those musings, some background is required. The NO States allege that Colorado marijuana has strained their financial and legal resources by forcing them to make arrests, house criminals, impound vehicles, and seize "drugs." Without statistics to support their whining, the NO States further complain that Colorado has failed to keep its weed in Colorado, undermining the NO States' marijuana prevention programs.

The NO States do not seek an order that Colorado ban or prosecute the use of pot. Instead, the lawsuit goes all in: It seeks to end Colorado's recreational marijuana program entirely. The legal argument here is that Article VI of the Constitution requires that federal law prevail over contradictory state law. Because we are all in this together, Oregon and Washington filed amicus (friend) briefs supporting Colorado.

Procedurally, the Constitution mandates that one state may sue another state in the Supreme Court without first suing in a lower court, but only with permission of SCOTUS. When states sue each other and invoke "original" SCOTUS jurisdiction, it's rare. In that scenario, the court does not host a trial on the merits of the case; it typically assigns an expert to gather facts and recommendations regarding how it should proceed.

After seven months of waiting, I am glad to report that Donald B. Verrilli Jr., the solicitor general (i.e., the feds' top attorney), is telling SCOTUS to refuse to hear the case. In short, the solicitor general argues that this case differs from previous cases where SCOTUS ruled on cross-border pollution or boundary disputes between states. Since Colorado has only permitted but not directed its marijuana commercial activity to allegedly impact, affect, or injure the NO States, the solicitor general argues that the NO States can't show any direct injury warranting review by SCOTUS.

It is fantastic for weed boosters everywhere to see the federal government's #1 attorney telling SCOTUS that it lacks jurisdiction to hear this case. Still, these arguments are all based on procedure, not whether the NO States' complaint has any merit. This means that the feds are trying to ice the suit without having to navigate the factual or legal issues at hand, including whether federal law preempts Colorado's recreational marijuana laws.

I would really like to see the feds concede there is no federal preemption if a state chooses to legalize marijuana through a robust licensing and taxation system, like in Oregon. Still, if SCOTUS dismisses the suit on procedural grounds, that's a win.