John Walters, the federal drug czar, has been striving for a
delicate balance during his recent visits to Nevada. On the one hand, he has
made it clear that he wants Nevadans to vote against an initiative on
Tuesday's ballot that would legalize private marijuana use by adults.
"This is a con, and it's insulting to the voters of the state in
which it was presented," Walters said in Reno last month. He dismissed
supporters of the initiative, which would allow licensed marijuana sales and
possession of up to three ounces, as "goofballs."
On the other hand, Walters has tried not to come across as too
heavy-handed, lest he antagonize an electorate that seems to be evenly split
on the issue. "People have a right to make their own decisions," he said in
Las Vegas last summer. He added that if Nevadans decide to legalize pot, "I
don't believe you'll see federal officials coming into (Nevada) to enforce
The implication that the federal government would let Nevada go
its own way is hard to believe when you consider how the Clinton and Bush
administrations have responded to more modest marijuana policy reforms. A
week before Election Day, a U.S. appeals court rebuked the federal
government for threatening to put doctors out of business if they dared to
recommend marijuana as a medicine.
The medical use of marijuana is permitted by nine states
(including Nevada), in all but one case as a result of ballot initiatives.
Far from conceding that people -- whether voters, physicians or patients --
"have a right to make their own decisions," Walters and his predecessor,
Barry McCaffrey, have insisted that doctors who recommend cannabis should
lose their federal prescription licenses.
Responding to a challenge brought by California patients and
physicians, the U.S. Court of Appeals for the 9th Circuit rejected that
threat as an unconstitutional infringement on freedom of speech. In a
concurring opinion, Judge Alex Kozinski noted that "the federal government's
policy deliberately undermines the state by incapacitating the mechanism the
state has chosen for separating what is legal from what is illegal," since
California allows marijuana use only by patients who have a doctor's
"In effect," Kozinski wrote, "the federal government is forcing
the state to keep medical marijuana illegal." Such an imposition, he
suggested, amounts to unconstitutional "commandeering" in violation of a
state's prerogatives under the 10th Amendment. That kind of strong-arming is
especially suspect, he said, when "Congress legislates at the periphery of
The federal drug laws are ostensibly based on Congress's
authority to "regulate Commerce . . . among the several States." Yet as
Kozinski noted, "medical marijuana, when grown locally for personal
consumption, does not have any direct or obvious effect on interstate
Last year, the U.S. Supreme Court ruled that federal law does
not allow a "medical necessity" defense against marijuana charges. In other
words, the fact that marijuana is the only effective way for someone to
obtain relief from debilitating nausea or agonizing pain does not protect
him from federal prosecution.
But the Court did not address the question of whether the
federal prohibition of medical marijuana violates the 10th Amendment or
exceeds Congress's authority under the Commerce Clause. Those issues, among
others, are raised in a lawsuit filed last month by two California patients
who are challenging the Drug Enforcement Administration's crackdown on
organizations that distribute marijuana to sick people.
Both the unsuccessful attempt to gag doctors and the (so far)
successful effort to shut down medical marijuana clubs indicate that the
federal government is reluctant to let states experiment with new drug
policies, as they have every right to do under our constitutional system.
Local resentment of this interference is so strong that San
Franciscans are likely to approve a measure on Tuesday that would ask the
city to explore the possibility of growing and distributing medical
marijuana. An Arizona proposition that would establish a state distribution
system also has attracted substantial support.
By contrast, Nevada's initiative (which has to be approved by
voters twice because it would amend the state constititution) would allow
private sales, not just to patients but to anyone 21 or older. Could John
Walters, who can't stand the idea that sick people might use marijuana to
get relief from their symptoms with state approval, learn to live with such
a system, as he suggests? I hope we get a chance to find out.