A DELICATE BALANCE ON DRUG INITIATIVES

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 he wants Nevadans to vote against an initiative on tomorrow'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," Mr. Walters said in Reno last month. He dismissed
supporters of the initiative, which would allow licensed marijuana sales
and possession of up to 3 ounces, as "goofballs."

On the other hand, Mr. 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 possession laws."

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," Mr. 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. 9th Circuit Court of Appeals 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
recommendation.

"In effect," Judge 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
its powers."

The federal drug laws are ostensibly based on Congress' authority to
"regulate Commerce among the several states." Yet as Judge Kozinski noted,
"medical marijuana, when grown locally for personal consumption, does not
have any direct or obvious effect on interstate commerce."

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 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' 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 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 tomorrow 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 constitution) 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.

Jacob Sullum, a senior editor at Reason magazine, is a nationally
syndicated columnist.