Breaking: SG Files Amicus Brief in Nebraska and Oklahoma v. Colorado with #SCOTUS

December 16th, 2015

I noted two weeks ago that the Court’s CVSG on the original jurisdiction claim brought by Nebraska and Oklahoma against Colorado’s marijuana law was still outstanding. Today, the SG has filed the amicus brief in the case. Here is a summary of the government’s argument about why leave should be denied:

The motion for leave to file a bill of complaint should be denied because this is not an appropriate case for the exercise of this Court’s original jurisdic- tion. Entertaining 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 original juris- diction.

The brief closes with a single paragraph about whether the federal government had the authority to issue the Cole Memoranda.

The United States is not an indispensable party to this suit because, if other threshold requirements were met, “complete relief” could be awarded Ne- braska and Oklahoma without joining the United States. Cf. Fed. R. Civ. P. 19(a); see California v. Arizona, 440 U.S. 59, 62 & n.3 (1979). This is not a case where the relief sought “could not be framed without the adjudication of the superior rights assert- ed by the United States,” or where a party’s asserted right is “dependent upon the rights and the exercise of an authority asserted by the United States [such] that no final determination of the one can be made without a determination of the extent of the other.” Arizona v. California, 298 U.S. 558, 571 (1936). There is no dispute about the United States’ authority to enforce the CSA, and the relief requested by Nebraska and Oklahoma would not require any adjudication of the rights of the United States or any exercise of authori- ty by the United States.

This is the only issue that I had interest in, and the SG casually, and unsurprisingly, ducked it.