Pubdate: Mon, 29 Jun 2015
Source: Minneapolis Star-Tribune (MN)
Copyright: 2015 Star Tribune
Author: Zachary Bolitho
Note: Zachary Bolitho is a professor at the Campbell University 
School of Law. Before joining academia he was a federal prosecutor 
with the Department of Justice. He wrote this article for the Los 
Angeles Times.


Lifting the prohibition might make sense, but it's not the issue. The 
Constitution is.

As surely as presidential candidates promise to change Washington, 
nominees for attorney general pledge to uphold the law, not personal 
policy preferences. Loretta Lynch, now the 83rd attorney general of 
the United States, was no different when she made her case to 
Congress in January. Trying to distinguish herself from her lightning 
rod of a predecessor, Eric H. Holder Jr., she said the law would be 
her "lodestar."

In the Supreme Court case Nebraska and Oklahoma vs. Colorado, Lynch 
has a chance to prove that her statement was more than a confirmation 
hearing cliche.

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.

Before reading any further, please understand that this is not about 
marijuana, per se. There is a legitimate debate to be had regarding 
our national marijuana policy. That debate, however, is irrelevant to 
the issue of whether the CSA invalidates Colorado's marijuana law.

Under the supremacy clause of the Constitution, when federal and 
state law clash, federal law wins. Accordingly, the Supreme Court has 
established that if a state law interferes with congressional 
policies and objectives, it cannot stand.

That's precisely what we have with Colorado's marijuana law and the 
CSA. Passed by Congress in 1970, the CSA comprehensively regulates 
the manufacture, distribution and possession of drugs. A central 
feature of the CSA is a classification system that separates drugs 
into five "schedules." Schedule I drugs are the most heavily 
regulated because they have no accepted medical use and a high 
potential for abuse. From the inception of the CSA to present, 
marijuana has been listed in Schedule I.

It is therefore a federal crime to possess, distribute or manufacture 
marijuana. It is also a federal crime to own, lease, use or maintain 
any property for the purpose of manufacturing or distributing 
marijuana. Violations of the CSA are punishable by imprisonment. And 
the CSA further provides that all money generated by the sale of 
illegal drugs, including marijuana, is forfeitable to the federal government.

Notwithstanding the clear terms of the CSA and the equally clear 
terms of the supremacy clause, Colorado passed a law authorizing the 
distribution, manufacture and possession of marijuana. 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 within 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.

Recognizing as much, the Justice Department - under Holder's 
leadership - successfully argued in the 2012 case Arizona vs. United 
States that federal law preempted Arizona's controversial immigration 
law. The situation in Nebraska and Oklahoma should receive the same treatment.

The framers understood that there would be occasional conflicts 
between state and federal law. And in the supremacy clause, they 
provided a clear instruction for resolving such conflicts: Federal 
law wins. That is true regardless of whether the federal law is bad 
policy or outdated or draconian. And it is true regardless of whether 
the federal law aligns with the political preferences of the current 
presidential administration.

If the law is really Lynch's lodestar, then she has no choice but to 
argue that the CSA preempts Colorado's marijuana law.
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MAP posted-by: Jay Bergstrom