There is much that I agree with in Mr. Zachary Bolitho’s Los Angeles Times op-ed — and enough with which I disagree that I feel compelled to write this short reply.
How legal is legal pot?
Law professor Zachary Bolitho wrote an op-ed in the Los Angeles Times last week saying that legal marijuana’s days are numbered in America and that Nebraska and Oklahoma’s proposed Supreme Court lawsuit against Colorado should kill recreational cannabis throughout the U.S. Another law professor, Sam Kamin from the University of Denver, responds to Bolitho’s column in this op-ed.
First, the areas of agreement. Federal law is the supreme law of the land. Every person in every state is obligated to obey federal provisions and is subject to sanction if they fail to do so. The federal government criminalizes marijuana and the Supreme Court has upheld its power to do so; federal law enforcement officials may enforce marijuana laws anywhere in the country, including in those states that have passed medical or recreational marijuana legalization. Thus, every person in Colorado who manufactures, sells or possesses marijuana is in violation of federal law and is subject to arrest, prosecution and imprisonment upon conviction.
It is there that Mr. Bolitho and I must part ways. For it simply does not follow from the fact of federal supremacy that the states are obligated to pass laws similar to the Controlled Substances Act or to keep such prohibitions on the books if they wish to remove them. With this even the states of Oklahoma and Nebraska agree; their complaint against Colorado in the Supreme Court says as much. But just as obviously, the federal government (or, more fundamentally, the states of Oklahoma and Nebraska) cannot force any state to administer a federal program or to enforce a federal law. Mr. Bolitho writes about the Clean Water Act and the Brady Gun laws, but it is unmistakably clear that the federal government cannot force state officials (cannot commandeer them, to use the constitutional term) to enforce those laws. This is what ultimately dooms the Oklahoma and Nebraska suit and is the crux of my disagreement with Mr. Bolitho.
Furthermore, this case is fundamentally different from Bolitho’s other principal example: the federal lawsuit against Arizona to keep that state from creating its own immigration laws. There, it was important that the United States have a single, uniform immigration policy. The federal government expressed that view by filing suit against Arizona and the Supreme Court agreed, striking down key provisions of the Arizona law. In the context of marijuana law reform in the states, things are quite different. The federal government has thus far been willing to accommodate state law experimentation, largely because the Controlled Substances Act by its own terms provides room for inconsistent state laws even while prohibiting marijuana at the federal level. In passing the Controlled Substances Act, Congress stated its intent to preempt only those state laws that present a positive conflict such that the state law and the federal law cannot be read together.
And that makes good sense; the regulation of drugs and the enforcement of criminal laws is work generally left to the states themselves. Congress prohibited marijuana but in doing so it left room for the states to develop other approaches to marijuana. U.S. Attorney General Loretta Lynch’s predecessor, Eric Holder endorsed such experimentation so long as eight federal criteria were met by state law reform. Ms. Lynch should follow Mr. Holder’s lead and should allow experimentation to take its course. This is not lawlessness or disrespect for federal law; it is exactly the sort of laboratory of ideas that our states can be at their best.
The day is coming when the federal marijuana prohibition will disappear; the coming years provide a powerful opportunity to determine what comes next. It would be a shame if that opportunity were lost.