Maybe the Court Got this One Right?

 

shutterstock_19836403As 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.”

Published in Domestic Policy, Law
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  1. Rodin Member
    Rodin
    @Rodin

    While the offending acts themselves are being carried by private citizens the volume and impact derive from the substantive law of the state of Colorado. So I don’t know why the Court would not hear the dispute. The more difficult question was how they would dispose of the dispute. My guess the majority had no clue how to resolve it.

    • #1
  2. ctlaw Coolidge
    ctlaw
    @ctlaw

    Thomas was right.

    Your logic would require dismissal for lack of jurisdiction.

    • #2
  3. Ball Diamond Ball Inactive
    Ball Diamond Ball
    @BallDiamondBall

    Imagine if Colorado follows through on its libertarian scheme and legalizes slavery. Nothing to do with the court, though.
    Dreads caught.

    • #3
  4. Pilgrim Coolidge
    Pilgrim
    @Pilgrim

    Otherwise New York would have a cause of action against neighboring states whose gun laws facilitate importation of guns into NY.

    • #4
  5. JRez Inactive
    JRez
    @JRez

    Rodin:The more difficult question was how they would dispose of the dispute. My guess the majority had no clue how to resolve it.

    Easy.  Impose a tax or penalty on Nebraska and Oklahoma if they refused to a) change their respective State laws prohibiting marijuana possession, b) purchase Colorado-grown marijuana or c) set up a state-run marijuana exchange for purchase marijuana according to various pricing plans.

    I think there’s even recent precedent for this?

    • #5
  6. ctlaw Coolidge
    ctlaw
    @ctlaw

    Pilgrim:Otherwise New York would have a cause of action against neighboring states whose gun laws facilitate importation of guns into NY.

    No. Because Colorado is engaging in a criminal conspiracy to violate federal law.

    You are at least four levels removed from analogy. First, you’d have to get rid of the federal prohibition on pot. Then you would have to create a federal pot regulatory system that Colorado in fact complied with. You’d also have to have a Constitutional provision protecting the people (like the 2nd A) and one protecting the state (like the militia clause).

    • #6
  7. Pilgrim Coolidge
    Pilgrim
    @Pilgrim

    ctlaw:

    Pilgrim:Otherwise New York would have a cause of action against neighboring states whose gun laws facilitate importation of guns into NY.

    No. Because Colorado is engaging in a criminal conspiracy to violate federal law.

    You are at least four levels removed from analogy. First, you’d have to get rid of the federal prohibition on pot. Then you would have to create a federal pot regulatory system that Colorado in fact complied with. You’d also have to have a Constitutional provision protecting the people (like the 2nd A) and one protecting the state (like the militia clause).

    Well reasoned.  I stand corrected.

    • #7
  8. Fredösphere Inactive
    Fredösphere
    @Fredosphere

    Pilgrim: Well reasoned. I stand corrected.

    No, no, no, Pilgrim, this won’t do at all. If someone has a better argument, you’ve got to take it personal. He pulls a fact, you pull an ad hominem. He sends one of yours to the hospital, you send one of his to the morgue! That’s the Chicago way!

    • #8
  9. Mike H Coolidge
    Mike H
    @MikeH

    Ball Diamond Ball:Imagine if Colorado follows through on its libertarian scheme and legalizes slavery. Nothing to do with the court, though.
    Dreads caught.

    It’s not libertarian to legalize impermissible acts.

    • #9
  10. Quinn the Eskimo Member
    Quinn the Eskimo
    @

    I think the court should have at least issued an opinion on the denial with respect to Justice Thomas’s objection.  That said, I think Colorado should have won on the merits.

    • #10
  11. ShellGamer Member
    ShellGamer
    @ShellGamer

    Ball Diamond Ball:Imagine if Colorado follows through on its libertarian scheme and legalizes slavery. Nothing to do with the court, though.
    Dreads caught.

    A putative slave would have standing to contest the Colorado law by filing as case in district court. The 13th Amendment is self-executing, so that court would stay enforcement of Colorado’s slave law. It would only reach the Supreme Court on appeal.

    A state could not jump directly to the Supreme Court by filing a direct complaint against Colorado. States are not in charge of enforcing the Constitutional generally–only those subject to unconstitutional laws typically have standing to contest them.

    • #11
  12. Fred Cole Inactive
    Fred Cole
    @FredCole

    Ball Diamond Ball:Imagine if Colorado follows through on its libertarian scheme and legalizes slavery. Nothing to do with the court, though.
    Dreads caught.

    Um, a few things:

    1. If you think libertarianism is pro-slavery somehow, I can suggest some books you need to read.
    2. There’s a constitutional amendment against slavery.
    3. Dude, did you really just compare pot legalization to slavery?
    • #12
  13. ShellGamer Member
    ShellGamer
    @ShellGamer

    ctlaw:

    Pilgrim:Otherwise New York would have a cause of action against neighboring states whose gun laws facilitate importation of guns into NY.

    No. Because Colorado is engaging in a criminal conspiracy to violate federal law.

    Even granting this premise, it’s for the Federal government to prosecute conspiracies to violate its laws, not individual states.

    As noted in the original post, this case illustrates the domino effect when branches of government won’t perform their Constitutional duties. The Executive is enforcing the CSA selectively, state-by-state, which violates the premise of the Supremacy Clause. Congress acquiesces because this allows legalization to progress without Congress having to take any accountability.

    This leaves the courts as the state’s only recourse. But having the courts tell Colorado what laws it must enact would only further subvert our federalist structure.

    The controversy here is between Nebraska/Oklahoma and the Federal government. The Fed’s decision not to enforce the CSA in Colorado is what’s making it difficult for them to enforce their anti-pot laws. But a case against the Feds would have to start in district court and work its way up the system, just like the current suits over non-enforcement of immigration laws.

    • #13
  14. ctlaw Coolidge
    ctlaw
    @ctlaw

    ShellGamer:

    ctlaw:

    Pilgrim:Otherwise New York would have a cause of action against neighboring states whose gun laws facilitate importation of guns into NY.

    No. Because Colorado is engaging in a criminal conspiracy to violate federal law.

    Even granting this premise, it’s for the Federal government to prosecute conspiracies to violate its laws, not individual states.

    Disagree. The analogue is a private nuisance suit in a situation where the State has not acted. If my neighbor is operating a brothel, I can sue for nuisance even though the state has chosen not to prosecute the associated criminal violation.

    As noted in the original post, this case illustrates the domino effect when branches of government won’t perform their Constitutional duties. The Executive is enforcing the CSA selectively, state-by-state, which violates the premise of the Supremacy Clause. Congress acquiesces because this allows legalization to progress without Congress having to take any accountability.

    We are agreed that Congress should either repeal the federal drug laws or impeach those who fail to enforce them. I do not find that the exclusive remedy.

    This leaves the courts as the state’s only recourse. But having the courts tell Colorado what laws it must enact would only further subvert our federalist structure.

    You are mis-characterizing the situation. It is not a mere inaction situation. Colorado is taking affirmative steps to promote the illegal activity. Thus, the Court would not be telling Colorado what laws it must enact as much as telling it not to act to promote the violation of Federal law.

    The controversy here is between Nebraska/Oklahoma and the Federal government. The Fed’s decision not to enforce the CSA in Colorado is what’s making it difficult for them to enforce their anti-pot laws. But a case against the Feds would have to start in district court and work its way up the system, just like the current suits over non-enforcement of immigration laws.

    • #14
  15. Duane Oyen Member
    Duane Oyen
    @DuaneOyen

    Rodin:While the offending acts themselves are being carried by private citizens the volume and impact derive from the substantive law of the state of Colorado. So I don’t know why the Court would not hear the dispute. The more difficult question was how they would dispose of the dispute. My guess the majority had no clue how to resolve it.

    Either that or the left majority was sympathetic to legalization and didn’t want to hear about attendant problems.

    • #15
  16. Quinn the Eskimo Member
    Quinn the Eskimo
    @

    Duane Oyen: Either that or the left majority was sympathetic to legalization and didn’t want to hear about attendant problems.

    The possibility that comes to my mind is that the Court might have wanted to discourage states from taking every complaint they have with the practices of another state to the Supreme Court.  California decides it doesn’t like the emissions standards of Nevada and wants to go to the Supreme Court to force its emissions standards on other states.  Stuff like that.  The court doesn’t want to clutter up its docket with things that are properly political disputes.  Even if you don’t think this specific case follows that pattern, I think you can see the road it leads to.

    • #16
  17. Rodin Member
    Rodin
    @Rodin

    Quinn the Eskimo: The possibility that comes to my mind is that the Court might have wanted to discourage states from taking every complaint they have with the practices of another state to the Supreme Court.

    I agree, but it would have been better to accept the case and have expedited briefs on the single issue of why this dispute isn’t a non-justiciable political question. By rejecting the case there is no precedent established that this kind of dispute is a political question.

    • #17
  18. RickMac87 Inactive
    RickMac87
    @RickMac87

    Can someone explain to me why the prohibition of alcohol required a constitutional amendment, but the prohibition of marijuana required only a law passed by congress? It seems to me that alcohol could be added to the CSA and then we have Prohibition all over again.

    • #18
  19. Fred Cole Inactive
    Fred Cole
    @FredCole

    I can’t give you the legal reason, but I can give you the practical political one:
    Because white people drank alcohcol. And back when marijuana prohibition was passed, it was Mexicans and scary negroes who smoked pot.
    (And anyone who thinks that’s hyperbolic exaggeration needs to examine the rhetoric of the time period.)

    • #19
  20. Pilgrim Coolidge
    Pilgrim
    @Pilgrim

    A consitutional amendment was necessary to permit a federal law (Volstead Act) to ban alcohol in the states.  There was no federal police power at that time.  States could and can still ban alcohol today e.g. the “dry” counties still around the southland.

    Now if the federals wanted to reimpose prohibition, they would just use the commerce clause and/or the power to tax.

    • #20
  21. RickMac87 Inactive
    RickMac87
    @RickMac87

    Pilgrim:A consitutional amendment was necessary to permit a federal law (Volstead Act) to ban alcohol in the states. There was no federal police power at that time. States could and can still ban alcohol today e.g. the “dry” counties still around the southland.

    Now if the federals wanted to reimpose prohibition, they would just use the commerce clause and/or the power to tax.

    I guess that’s what I’m getting at. A constitutional amendment was required to permit a federal law banning alcohol in the states. But no constitutional amendment was needed to authorize the CSA. I grew up in a dry town in Ohio. It was unlawful to purchase alcohol, however, it wasn’t unlawful to possess alcohol.

    My point is that the federal government overstepped its authority with the CSA. While I don’t condone marijuana use, it should be a state issue and not a federal issue (without a constitutional amendment authorizing the federal government to ban marijuana and/or other drugs). And if it’s a state issue, one state shouldn’t be able to impose it’s will on another state.

    • #21
  22. Pilgrim Coolidge
    Pilgrim
    @Pilgrim

    RickMac87:

    Pilgrim:A consitutional amendment was necessary to permit a federal law (Volstead Act) to ban alcohol in the states. There was no federal police power at that time. States could and can still ban alcohol today e.g. the “dry” counties still around the southland.

    Now if the federals wanted to reimpose prohibition, they would just use the commerce clause and/or the power to tax.

    I guess that’s what I’m getting at. A constitutional amendment was required to permit a federal law banning alcohol in the states. But no constitutional amendment was needed to authorize the CSA. I grew up in a dry town in Ohio. It was unlawful to purchase alcohol, however, it wasn’t unlawful to possess alcohol.

    My point is that the federal government overstepped its authority with the CSA. While I don’t condone marijuana use, it should be a state issue and not a federal issue (without a constitutional amendment authorizing the federal government to ban marijuana and/or other drugs). And if it’s a state issue, one state shouldn’t be able to impose it’s will on another state.

    The 18th Amendment (prohibition) was 1919. The federal government was truly limited by the Constitution.  The New Deal rulings especially Wickard v Filburn  (1942) undermined that forever.  After Wickard, the federal government could regulate almost everything under the commerce clause.

    • #22
  23. RickMac87 Inactive
    RickMac87
    @RickMac87

    Pilgrim:

    RickMac87:

    Pilgrim:A consitutional amendment was necessary to permit a federal law (Volstead Act) to ban alcohol in the states. There was no federal police power at that time. States could and can still ban alcohol today e.g. the “dry” counties still around the southland.

    Now if the federals wanted to reimpose prohibition, they would just use the commerce clause and/or the power to tax.

    I guess that’s what I’m getting at. A constitutional amendment was required to permit a federal law banning alcohol in the states. But no constitutional amendment was needed to authorize the CSA. I grew up in a dry town in Ohio. It was unlawful to purchase alcohol, however, it wasn’t unlawful to possess alcohol.

    My point is that the federal government overstepped its authority with the CSA. While I don’t condone marijuana use, it should be a state issue and not a federal issue (without a constitutional amendment authorizing the federal government to ban marijuana and/or other drugs). And if it’s a state issue, one state shouldn’t be able to impose it’s will on another state.

    The 18th Amendment (prohibition) was 1919. The federal government was truly limited by the Constitution. The New Deal rulings especially Wickard v Filburn (1942) undermined that forever. After Wickard, the federal government could regulate almost everything under the commerce clause.

    Another great outcome of the New Deal.

    • #23
  24. ShellGamer Member
    ShellGamer
    @ShellGamer

    The string is getting long, so let me quote ctlaw here:

    If my neighbor is operating a brothel, I can sue for nuisance even though the state has chosen not to prosecute the associated criminal violation.

    This is true if the brothel is operated in such a way as to create a nuisance, but I don’t think illegal activity constitutes a nuisance per se. Similarly, the fact that activity is lawful doesn’t prevent it from being a nuisance.

    To use a less loaded example, if your state prohibits wagering stakes on sports contests, I don’t think a court will enjoin your office’s NCAA pool absent a showing of some harm to you. And, if an NCAA pool were legal, but somehow injurious to you (e.g., your the boss and it causes too much disruption), an injunction may lie (although that would be a silly way to deal with it).

    If there were no CSA, and the states sued Colorado simply alleging a nuisance, my response would be “this is the nature of a federal republic, deal with it.” Invoking the CSA and the Supremacy Clause just obscures this.

    • #24
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