Nebraska v Colorado

My news feed was interrupted yesterday, a bit, by talk of an unusual thing: two Supreme Court Justices dissented from the denial of certiorari by the Supreme Court. This is a rare thing for various reasons, and rare as it is for me to agree with the Justices who dissented, I think in this case they may have it right.

The case in question was an original jurisdiction lawsuit between Nebraska and Oklahoma (on one side) and Colorado on the other side. Under Article III of the US Constitution, which says “In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction”, such cases go straight to the Supreme Court, which acts as a trial court, rather than an appellate court, in such cases. The distinction here is important: when a trial court is deciding whether or not to take a case, it should in general base that decision not on an analysis of the merits of the case, but on the answer to the questions: (1) if what the plaintiff alleges is true, would there be an injury sufficient to seek redress, and (2) is there enough evidence that it’s plausible that it’s true and a trier of fact should be enlisted to determine whether or not it is?

Oklahoma and Nebraska allege that (a) Colorado has established a legal regulatory scheme which is contrary to federal law, and that federal law prohibits Colorado’s regulatory scheme, and (b) that regulatory scheme has resulted in harm to Nebraska and Oklahoma in the form of increased drug trafficking and, as a result, increased expenses in enforcement activity and incarceration.

The thing is, for a trial court considering whether or not to take the case, allegation (b) above should be treated as true, and the question should be: if the allegation were true, is there an actionable case?

There’s a colorable argument that even if the argument were true, there would be no actionable case. While I think it’s fairly clear that Colorado’s regulatory scheme conflicts with the Controlled Substances Act, it’s also not clear to me that the Controlled Substances Act gives anyone other than the US Dept. of Justice standing to sue to resolve such conflicts. And it’s also not clear to me that the nature of the harm Oklahoma and Nebraska allege is a federal question.

But surely those are questions that are entitled to a hearing. Stripped of the context of the war on drugs, these are important questions of structural federalism – and only the Supreme Court can really resolve them.

So I think the dissent had it right: the court should have taken this case.

[Note that while I think there’s an interesting question of law here, and while I think it’s entirely possible that Colorado’s regulatory scheme is actually prohibited by federal law and pre-empted in a way that renders it unconstitutional, I think that’s a question regarding the regulatory scheme.

Which is to say: it’s perfectly clear that the federal government cannot compel Colorado to make  marijuana illegal under Colorado law, or to enforce the federal law; what is at issue is whether or not Colorado may construct a regulatory scheme which is inconsistent with the federal regulatory scheme.

To take it out of the realm of drugs for a moment, a structurally equivalent case would be if the federal government had a policy prohibiting the trade in ivory in order to protect the remnant elephant population, but Colorado law allowed a heavily regulated, licensed trade in ivory; would that regulatory system be allowed to stand?

The irony in this, of course, is that Oklahoma and  Nebraska’s position is massively self-defeating as a matter of policy. If they’re right that the CSA precludes Colorado’s regulatory scheme, the net result would be that marijuana  would remain not-illegal under Colorado law, but that Colorado would be unable to regulate its trade; that seems like it would be more likely to produce problems for the neighboring states.]



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