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Pot, Prohibition, and Original Jurisdiction

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As noted in today's News Scan, the states of Nebraska and Oklahoma have filed suit in the Supreme Court against Colorado over its marijuana law.  Here are a few random thoughts.

My first impression was that such a suit would be meritless, bordering on frivolous.  Of course a state is within its constitutional authority to not prohibit something.  After skimming quickly through the complaint, though, it is more nuanced than that.  The gist of the claim is that the Colorado law involves its government in affirmatively promoting a trafficking in marijuana that violates federal law.  I will have to study it more carefully to form an opinion on the merits of the complaint.

Procedurally, there is some inside baseball on the peculiarities of Supreme Court jurisdiction.
The vast majority of the Supreme Court's jurisdiction is appellate, reviewing decisions of other courts.  Even when the procedure takes the form of a new lawsuit, such as a petition for writ of mandamus or habeas corpus, as long as the issue in substance is the review of a decision of a lower court, it still comes under the heading of appellate jurisdiction.  (This was decided two centuries ago, in the case of an alleged co-conspirator of Aaron Burr.)

For a very small set of cases defined in the Constitution itself, though, the plaintiff can file directly in the Supreme Court without going to any other court first.  This is the high court's "original jurisdiction."  See Article III, § 2.  The most common of these are cases where states are suing each other or the federal government, and it usually has something to do with water -- boundary disputes from shifting river channels, rights to the water in a river, or mineral rights under the water.  It's a pretty wet docket, and generally quite boring.  The most recent decision of this type was last Monday, United States v. California.  Zzzzz.

The new case is different and interesting.  Will the Court even take it up?

Of the kinds of cases that the Supreme Court can constitutionally take as original matters, Congress has designated the State versus State type as the only kind in the high court's exclusive jurisdiction.  Such cases cannot be filed anywhere else.  See 28 U.S.C. § 1251.

Even though the Constitution and the statute give the Supreme Court jurisdiction in these cases, the Supreme Court's Rule 17 requires a State to ask permission to file the complaint, and that is what Nebraska and Oklahoma have filed.

Can they do that?  The high court has been pretty hard on states and courts that don't want to take cases within their jurisdiction.  See, e.g., Haywood v. Drown (2009).  Generally, courts cannot refuse cases within their jurisdiction except for prerogative writs, which this isn't.  Such a refusal would seem to be particularly offensive when no other court has jurisdiction.

But though there is a strong argument that the leave-to-file requirement is illegal and possibly unconstitutional, there is a problem.  Where you gonna appeal?  For a violation of the Constitution or laws of the United States by anyone else, the road to review eventually leads to the Supreme Court.  Where do you go when the high court itself is the alleged violator?

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I am eager ot hear your informed thoughts on the merits, Kent. Bill's too.

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