In a brief filed with the Court on Wednesday night, Solicitor General Donald B. Verrilli argues in part that the case is not properly before the Court.
The case highlights the tension between a state -- Colorado -- that has chosen to legalize marijuana, and others, such as Nebraska and Oklahoma, who say they are having difficulties protecting their borders from the increased flow of the drug.
Last spring, the Supreme Court asked for the administration's views
as the justices decide whether to take up the case.
"Entering the type of dispute at issue here -- essentially that one state's laws make it more likely that third parties will violate federal and state law in another state -- would represent a substantial and unwarranted expansion of this Court's" jurisdiction, Verilli argued.
He also said that lawyers for the states of Nebraska and Oklahoma should have filed their case first with the district court, instead of going directly to the Supreme Court.
In briefs, Nebraska and Oklahoma are not challenging Colorado's legalization of marijuana, but how it regulates the market.
They say, for example, that their law enforcement officers are increasingly making routine stops of individuals who possess marijuana purchased in Colorado. They say that Colorado's regulatory scheme is pre-empted by federal law which establishes "a comprehensive regime to combat the international and interstate traffic in illicit drugs."
Supporters of legalized marijuana point out that if Nebraska and Oklahoma were to ultimately win, marijuana would still be legal but the regime set up by the state to regulate how it is distributed and controlled might be struck.
Beginning in 2009, the Obama Justice Department advised selected U.S. Attorneys that while the prosecution of significant traffickers of illegal drugs would remain a priority, federal resources should not be focused on individuals who were in "unambiguous compliance with existing state laws" and not involved in large-scale industrial marijuana cultivation centers.