Attorney general nominee Loretta Lynch testifies before the Senate Judiciary Committee on Capitol Hill in Washington on Wednesday, Jan. 28, 2015. (J. Scott Applewhite, The Associated Press)

Professor: Why Nebraska, Oklahoma have a right to kill Colorado’s legal pot

Law professor Zachary Bolitho says Attorney General Loretta Lynch must side with Nebraska and Oklahoma in their quest to kill Colorado's ongoing experiment with legal marijuana

Law professor Zachary Bolitho, a former federal prosecutor with the Department of Justice, wrote a compelling op-ed in the Los Angeles Times earlier this week saying that, if the letter of the law is followed, legal American marijuana’s days are numbered.

In his new opinion piece, Bolitho argued that Nebraska and Oklahoma have the unquestionable right to squash Colorado’s legal pot system with their proposed case in the U.S. Supreme Court — and he thinks it might just happen, given that new Attorney General Loretta Lynch is looking to “distinguish herself from her lightning rod of a predecessor, Eric H. Holder Jr.”

Here’s how Bolitho got started:

Nebraska and Oklahoma claim that the federal Controlled Substances Act, or CSA, preempts Colorado’s marijuana law. Because the case involves one state suing another, it falls within a special category of lawsuits that go straight to the Supreme Court. Typically, the federal government would be the entity seeking to enforce federal law against a state. But because the Department of Justice under Holder refused to challenge Colorado’s law, Nebraska and Oklahoma — neighboring states that say marijuana is flowing across their borders and burdening their criminal justice systems — have taken on the task.

The Supreme Court recently asked the federal government to file a brief explaining its position on the issue, which is expected shortly. From a legal standpoint, the correct opinion is obvious: Lynch must side with Nebraska and Oklahoma.

That’s when Bolitho took a step back to point out that this isn’t about America’s policy on cannabis. That’s a legitimate conversation, he says, but it has nothing to do with the game of chicken going on between Colorado’s groundbreaking, first-of-its kind weed laws and the Controlled Substances Act.

He argued that the supremacy clause is all that is needed in situations like this. When federal law conflicts with state law, federal law wins — “that is true regardless of whether the federal law is bad policy or outdated or draconian,” Bolitho wrote. “And it is true regardless of whether the federal law aligns with the political preferences of the current presidential administration.”

He continued:

Put simply, Colorado treats marijuana dealers like legitimate entrepreneurs. But the reality is that every state-licensed marijuana dispensary in Colorado is in direct violation of the CSA. Every dollar that Colorado’s state-licensed marijuana dispensaries generate is forfeitable under the CSA as criminally derived property.

If states are free to disregard federal laws they don’t like, then our entire governmental structure is at risk. What’s next? Could a state that doesn’t like the federal Clean Water Act pass a law authorizing the pollution of its waterways? Could a state that doesn’t like the federal Brady Handgun Violence Prevention Act pass a law authorizing gun dealers inside its borders to sell handguns without conducting background checks? Are congressional enactments simply suggestions that the states may accept or reject at their pleasure? That’s not how our system is supposed to work.

Bolitho then looked at what former Attorney General Eric Holder’s Department of Justice did with Arizona’s controversial immigration law a few years ago. It successfully argued that federal law preempts state law, and Bolitho finished his comparison with a simple statement condemning Colorado’s legal marijuana experiment to the unknown:

“The situation in Nebraska and Oklahoma should receive the same treatment.”