Raymond Yans is president of the International Narcotics Control Board (INCB), the U.N. agency charged with monitoring the implementation of anti-drug treaties. It is therefore not surprising that Yans takes a dim view of marijuana legalization in Colorado and Washington, which he says poses "a grave danger to public health and well-being."
But according to the INCB, legalization is not just dangerous; legalization is illegal. Even Americans who support marijuana prohibition should be troubled by the implications of that argument, which suggests that international treaties trump the Constitution.
In an INCB report issued on Tuesday, Yans scolds the U.S. government for letting Colorado and Washington repeal criminal penalties for production, possession and distribution of cannabis. "INCB reiterates that these developments contravene the provisions of the drug control conventions, which limit the use of cannabis to medical and scientific use only," he writes. "INCB urges the Government of the United States to ensure that the treaties are fully implemented on the entirety of its territory."
Under our federalist system, however, states have no obligation to punish every activity that Congress chooses to treat as a crime. The Supreme Court has said, based on a dubious reading of the power to regulate interstate commerce, that the federal government may continue to enforce its own ban on marijuana in states that take a different approach. But that does not mean the feds can compel states to help, let alone force them to enact their own bans.
According to the INCB, none of that matters. "The international drug control treaties must be implemented by States parties, including States with federal structures, regardless of their internal legislation, on their entire territory," it says in a recent position paper. "Those treaty obligations are applicable with respect to the entire territory of each State party, including its federated states and/or provinces."
In other words, our government is required to impose marijuana prohibition on recalcitrant states, regardless of what the Constitution says. Can that be true? Only if you believe that international treaties can give Congress authority that was not granted by the Constitution, which would obliterate the doctrine of enumerated powers and the state autonomy that depends on it.