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Obama Admin Asks SCOTUS to Reject Original Juris. Pot Case

The Obama Administration has just asked SCOTUS to reject a lawsuit filed by the states of Oklahoma and Nebraska which both seek to block Colorado's recently approved law legalizing recreational pot use by adults. The two states argue that marijuana is being smuggled across state borders and the drugs threaten the health and safety of their children.

Even with the rejection of the suit, a rather large legal gap would still continue to widen between the illegal status of marijuana in the eyes of the federal government, and its increasingly legal status in many states.

Original Jurisdiction

Most cases reach the eyes of the Supreme Court under the process of granting certiorari -- or "cert." It's known that several thousands of cases petition for SCOTUS review, but only a lucky few ever get selected -- mostly because they deal heavily with legal issues the Court has determined to be extraordinary. This tightly selective process is the usual and typical means of becoming a "SCOTUS case."

However, Nebraska and Oklahoma decided to opt for a more obscure means intended to bypass the lengthy process of lower court litigation: original jurisdiction. Even some lawyers are not aware (or don't remember) that federal law vests the Supreme Court with "original and exclusive jurisdiction of all controversies between two or more States." On the face of it, since the lawsuit reads Oklahoma and Nebraska v. Colorado, this controversy certainly fits the bill.

Allegations

U.S. Solicitor General Donald Verrilli, however, urged the justices to throw the case out because it would, in his opinion, "represent a substantial and unwarranted expansion" of the Court's power to hear cases between states. Just this week, he authored and filed the Justice Department's legal opinion about Nebraska's and Oklahoma's allegations and theories. In it, he rejects the contention that the law increases pot trafficking into the plaintiff states; and even if it did, they failed to show that there was any direction by Colorado of such traffic.

Colorado and the Controlled Substances Act

Colorado's Amendment 64 is at odds with marijuana's current status as an illegal substance according to the federal Controlled Substances Act. Under that statute, pot is listed as a Schedule 1 drug along with heroin and LSD. Use of marijuana in the United States raises messy issues of state legality in possible preemption conflict with federal law.

There is yet no scheduled time when SCOTUS will decide the matter.

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