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In December 2014, the States of Nebraska and Oklahoma filed a motion for leave to file a complaint against the State of Colorado with the Supreme Court of the United States (SCOTUS).  The motion argued, among other things, that Colorado’s recreational marijuana laws are allegedly preempted by the Controlled Substances Act and they cause increase drug trafficking and other crimes in Nebraska and Oklahoma.  As such, Nebraska and Oklahoma sought leave from SCOTUS to file a complaint against Colorado on the same basis and to request that SCOTUS strike down and enjoin Colorado’s recreational marijuana laws.

On March 21, 2016, however, SCOTUS issued an order denying Nebraska and Oklahoma’s request.  The denial was without explanation.  Instead, it simply states that “[t]he motion for leave to file a bill of complaint is denied.”  More interesting, however, is the fact that Justice Thomas, joined by Justice Alito issued a dissenting opinion, arguing that the Court not only should have granted the motion and permitted the filing of a complaint, but that SCOTUS was constitutionally and statutorily obligated to do so.

Specifically, the dissent argued that Article III of the Constitution provides, in part, that “[i]n all Cases . . . in which a State shall be [a] Party, the supreme Court shall have original Jurisdiction.”  Further, and in accordance with that Constitutional provision, Congress has also statutorily provided that SCOTUS “shall have original and exclusive jurisdiction of all controversies between two or more States.”  See 28 U.S.C. § 1251(a).  As such, the dissent reasoned that because neither the Constitution nor the statute provides SCOTUS with discretion in exercising original jurisdiction over disputes between states, the Court was required to hear the case.