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As noted in yesterday’s The Daily Shot, the Supreme Court finally ruled in the case of Nebraska and Oklahoma v. Colorado, wherein the former states sued their neighbor for undermining federal drug policy and their own drug prohibitions by legalizing marijuana. Having started a fairly lively conversation when the case was filed, I want to make some observations on the outcome. I suspect it’ll mostly remind people why lawyers drive them crazy. Here, in its entirety, is the court’s majority opinion:
The motion for leave to file a bill of complaint is denied.
That’s it. Justice Thomas, joined by Justice Alito, dissented:
The Constitution provides that “[i]n all Cases . . . in which a State shall be [a] Party, the supreme Court shall have original Jurisdiction.” Art. III, §2, cl. 2. In accordance with Article III, Congress has long provided by statute that this Court “shall have original and exclusive jurisdiction of all controversies between two or more States.” 28 U. S. C. §1251(a).
Federal law is unambiguous: If there is a controversy between two States, this Court—and only this Court—has jurisdiction over it. Nothing in §1251(a) suggests that the Court can opt to decline jurisdiction over such a controversy.
So why did Nebraska and Oklahoma need to ask permission to file their complaint, and how could the Court deny them a hearing?
The terse dismissal makes it impossible to say with certainty why the majority ruled as it did. But the Solicitor General filed a brief against the complaint, and one of the arguments struck me as appealing. (No pun here; this was a case of original jurisdiction.)
The Constitution gives SCOTUS original jurisdiction over “[controversies between two or more States”. Nebraska and Oklahoma were complaining that people were bringing marijuana from Colorado into their territory. But the State of Colorado wasn’t doing this by — for example — hiring Peyton Manning to throw bags of marijuana into other states. People were taking pot lawfully purchased in Colorado and transporting it into other states, not only without Colorado’s encouragement, but in direct violation of its law.
Put another way, Colorado’s legalization of pot was not a sufficient condition to the transportation of pot into Nebraska and Oklahoma. It wasn’t even a necessary condition, as people have found ways to import pot even when it was illegal in all 50 states.
While I generally support Justice Thomas’s view that the Constitution should be interpreted so that any citizen could understand its meaning, I’m not sure he was correct that any state law that makes it more difficult for another state to enforce its laws necessarily creates a “controversy between the states.”