The US drug policy is changing, pitting states against federal law. This essay explores this inner friction of contradictory drug legislation, and what it may mean for the international drug control regime, itself a result of US drug policy. (4,400 words)

Anti drug policies are being increasingly questioned in some states of the American union. In the US nearly 20 states allow medicinal marijuana, and Colorado and Washington State have made recreational marijuana use legal, in clear violation of the United Nations conventions. This is why it is important to understand why the US, the main force behind the international drug control regime (IDCR) has pressured other countries to comply with it, but cannot enforce it domestically.

The first section of this essay explores the historical relationship between the United States and the IDCR and shows how the US as its main sponsor has always insisted that parties to the UN drug conventions adhere strictly to them. In order to understand the apparent contradiction between domestic and international policies, the following section analyzes the US Constitution and shows how it limits the powers of the federal government and generates great ambiguity around the US government’s ability to enforce its laws on the states. The third section highlights the confrontations between federal and state governments and studies the Supreme Court sentences related to psychoactive illegal drugs. The fourth section tries to answer a key question: what can the federal government do to enforce its own drug laws and to comply with the IDCR? The essay ends with a few conclusions that highlight some possible consequences of the legalization of recreational marijuana in a few states.

The US and the IDCR

The IDCR is made by agreements that evolved from the 1909 Shanghai Opium Commission, The Hague Opium Convention of 1912 and three other conventions in the League of Nations. After the Second World War the UN took on the responsibility of administering the IDCR and the Single Convention on Narcotic Drugs of 1961 consolidated and substituted for the previous international norms. Ten years later, in 1971 another Convention on Psychotropic Substances was enacted, which was followed by the 1988 Convention against the Illicit Traffic of Narcotic and Psychotropic Substances.

Since 1909 the US government has led the IDCR and pressured other governments to sign, ratify and comply with the IDCR. For example, The Hague 1912 convention was made part of the Versailles Treaty to force Germany to sign it. During the 1920’s and 1930’s the US funded the League of Nations anti drug agencies despite not being part of the League. During the Second World War the US hosted the League’s anti drug organisations. After the war the US promoted a more restrictive regime and was the main driver behind the effort to have a new convention. Since then US international policy has promoted a strict compliance with the conventions across the world. During 2004-2006 the US frequently pressured the UN Office of Drugs and Crime (UNODC) and the European Union not to support syringe and needle exchange programs and to eliminate the use of the term “harm reduction”. At one point the US threatened to cut UNODC’s financial support. Recently the US has continued its tradition of pressuring countries to strictly comply with the conventions. In 2009 Bolivia requested to amend the Single Convention of 1961 to allow the traditional coca chewing practice of Indian communities. The US actively opposed this amendment on the grounds that it would undermine the integrity of the IDCR.

Strict compliance with the IDCR, particularly its restriction of drug uses to those of medicine and research, excluding any recreational, ritual, experimental and social uses, has continuously been a goal of US international policy.

In contrast, the IDRC has had minimal, if any, influence on domestic US policies. In the US it is difficult to find drug related discourses in which the IDCR is mentioned. The main federal government drug policy instrument is the Controlled Substances Act (CSA) that set the foundations for federal government policies that regulate the manufacture, use and distribution of certain controlled substances. The CSA was a reaction to the increase in psychoactive drug consumption during the 1960s. The CSA consolidated all federal drug laws but was quite flexible about policies, particularly regarding consumption, a reflection of the relatively lax attitude towards drugs during the 1968-1973 period.

The CSA established five lists of drugs subject to different kinds of controls depending on their estimated degree of danger. In some official documents there are references to the fact that the CSA complies with the US responsibilities established in the 1971 Convention. While it may be argued that IDCR has been used to promote domestic legislation, in reality, the main reason why the 1971 convention was created was the large increase in psychotropic drug consumption in the US and parts of Europe during the 1960s. In this case the US promoted both domestic and international laws in response to a domestic problem.

The CSA has adapted in response to changes in domestic and international drug markets and in technological developments that have affected those markets. The CSA has had several amendments. In 1976 to regulate new machines and instruments used to treat patients; in 1978 to comply with the requirements of the 1971 Convention; in 1984 to increase sentences for repeated crimes and to those that traffic near schools; in 1986 to control analogs of drugs included in the first two lists of the CSA; in 1988 to comply with the 1988 Convention that required controls of a group of chemical precursors; and in 2008 to require legitimate prescriptions to purchase drugs from internet pharmacies.

Despite these cases in which there appears to be a connection between the IDCR and domestic policy, it has been fundamentally a key instrument of US foreign policy, used to prevent drugs from coming into the country.

The IDCR has not been a relevant factor in the country’s domestic policy formulation or implementation and the IDCR has not been an issue in the recent debates about medical and recreational marijuana.

Constitutional limits and conflicts

Concerning psychoactive drug policies the Supreme Court must consider several conflicting articles of the Constitution. The Supremacy Clause; Article VI, Clause 2 reads: ”This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding”. This article provides the basis for the Doctrine of Preemption of the federal over the state laws. Any layman reading this article would conclude that the States must comply with the international treaties ratified by the federal government.

But the Tenth Amendment establishes limits to the federal government: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively or to the people”. This Amendment is based on the doctrine that the States are sovereign and give the federal government certain limited “enumerated’ powers that the federal government may not exceed.  The Supreme Court decisions on issues dealing with conflicts between the States and the federal government must be based on these powers. This is why many of the decisions are based on for example, the “Commerce Clause” (Article I, Section 8, Clause 3 of the Constitution): “The Congress shall have Power to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”, which is one of the few enumerated powers.

The First Amendment imposes other restrictions: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances”. Any layman looking at this amendment would conclude that the use of psychoactive substances in religious ceremonies is protected by the Constitution. This was why during the Alcohol Prohibition (1920-1933) Christians and Jews alike could celebrate their rites without problems.

The Fourth Amendment limits law enforcement methods used by the federal government: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized”. This applies also to the States by way of the Due Process Clause of the Fourteen Amendment.

The Supremacy Clause, and the First and Tenth Amendments generate substantial legal ambiguity with respect to the production, traffic and consumption of controlled substances because these require federal and state governments to comply with the IDCR and impose strong restrictions on the ability of the federal government to force the states to comply.  The Fourth Amendment further restricts what the government may do to control illicit drugs.

National drug policy and the Supreme court: State and Fed confrontation

Establishing the extent of the federal government powers to preempt state laws and enforce the CSA and the IDRC is a drug policy problem whose solution depends on the way the courts would interpret the laws and the Constitution. Garvey (2012), Mikos (2012) and Taylor (2013) study the medicinal and/or recreational marijuana measures adopted by 18 states and the District of Columbia. Based on Supreme Court precedents, Garvey argues that “Although the US Supreme Court has established Congress’s constitutional authority to enact the existing federal prohibition on marijuana, principles of federalism prevent the federal government from mandating that the states to actively support or participate in enforcing the federal law”. Under the Supremacy Clause federal laws normally would prevail over state laws but in the case of marijuana and other drugs controlled by the CSA the courts have argued that when Congress enacted the CSA it did not mean to supplant all drug related state laws and norms.  The courts have considered this relationship within the context of two sovereigns, each one with its own drug legislations and law enforcement systems.  Thus, some behaviors that may be illegal according to federal laws might be legal according to state laws and vice versa.

To understand how these ambiguities and inconsistencies have played out it is necessary to analyze the Supreme Court decisions.

Supreme court drug sentences

The 2005 Gonzales v. Raich decision on medicinal marijuana: Angel Raich and Diane Monson sued the federal government after DEA agents seized and destroyed six marijuana plants that they were cultivating to supply Raich who had been prescribed the drug by his doctor. “The respondents argued that the CSA’s ‘categorical prohibition,’ as applied to the ‘intrastate manufacture and possession of marijuana for medical purposes,’ exceeded Congress’s authority under the Commerce Clause, and, therefore, could not serve as the basis for their prosecution. The Court rejected this argument, and clearly held that the federal prohibition was within Congress’s constitutional authority”. The Court’s justification was that even thought this was a very small amount of marijuana, if every user would be allowed to grow for self use, in the aggregate this could a source of diversion to the broad illegal market. The court’s vote was 6 in favor and 3 against. However, “The Court did not consider the question of whether the California law, which permitted the use of marijuana for medicinal purposes, was preempted by the CSA”.

Justice Sandra Day O’Connor’s dissented defending the role of States as laboratories and argued that there was no proof that allowing small plantings for personal medicinal use would have significant consequences on intra state marijuana trade.

The 2006 case Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal deals with ayahuasca, an Amazonian plant used in some religious rites. Ayahuasca contains dimetiltriptamine (DMT), a hallucinogenic included in schedule I of the 1971 convention and on schedule I of the CSA.  The Court’s decided in a case of a religion that has some 30,000 believers in Brazil and a few hundred in New Mexico.  Religion members believe that drinking ayahuasca tea helps them understand God and the meaning of life and they use it in their religious ceremonies.

According to the Religious Freedom Restoration Act enacted by Congress to allow peyote use by the Native American Church, in order to restrict any religious freedom the government must prove that it has a “compelling interest” and then it should use the least restrictive possible methods to achieve its goal. The Supreme Court argued that the government’s case did not pass this test and the Court voted unanimously in favor of the religious group.

The Florida v. Jardines 2013 case highlights the importance of the Fourth Amendment. In 2006 the Miami police received an anonymous tip about indoor marijuana planting in a private residence.  A policeman went to check accompanied by his trained dog.  When they reached the home’s door the dog sat indicating that he had smelled an illicit drug. The policeman proceeded to get a search warrant and found 179 marijuana plants, equivalent to over 25 pounds of marijuana with a street value of $700,000. Mr. Jardines, the house resident was captured attempting to escape.

The Supreme Court voted 5-4 in favor of Jardines because if the policeman had smelled the marijuana himself, the arrest warrant would have been legal, but the dog’s nose was equivalent to an instrument, like a pair of binoculars, used to intrude on the privacy of Mr. Jardines and violated the Fourth amendment.

In the 2013 Harris v. Florida case, a policeman stopped a truck on a highway and his dog indicated that it had drugs. The truck’s search did not find drugs but legal chemical precursors used in the manufacture of amphetamines. In this case the Court sided with the police on the grounds that the search had been done with probable cause.

Other Supreme Court decisions also affect the federal government capacity to comply with international treaties. In the 1957 Reid v. Covert the Court decided that the Constitution prevails over international treaties ratified by the senate.

In this case a US military tribunal in Great Britain found Mrs. Covert guilty of killing her husband, a member of the US armed forces. At the time an agreement between the two countries gave the US military courts jurisdiction over all crimes committed in Great Britain by US armed forces personnel and their families. The court concluded that the Bill of Rights protected US citizens even if they were abroad. In this case Mrs. Covert had the right not to incriminate herself (Fifth Amendment) and to a due process (Sixth Amendment). The Court concluded that the sentence had been unconstitutional.

The basis of the Supreme Court argument was that the principals were the States and the People and the federal government their agent, and so was the case in Great Britain. International treaties are agreements among agents whose powers may not exceed those granted to them by the principals.  Thus, to have a treaty prevailing over the Constitution if would be necessary to reform the Constitution. (This is the argument used by the US to reject any jurisdiction of the International Court of Justice over crimes committed by US military personnel abroad.)

These decisions show that drug policies in the US are just a domestic policy issue. None of the Supreme Court decisions made any reference to the IDCR. The same has occurred with the post Colorado and Washington State vote debate in which there has been almost no mention of the IDCR. In fact, the IDRC is at most a footnote in this debate.

What can the federal government do?

International drug treaties and agreements are not self executing and as such, have limited status and their application is determined by laws and other regulatory norms. This raises several key questions. First, does Congress have the power to prohibit production, possession and distribution of marijuana? Second, to what extent may Congress order States to adopt laws to enforce federal prohibition? Third, may federal laws preempt the States’ efforts to regulate marijuana? Fourth, to what extent is the Department of Justice obliged to enforce marijuana prohibition?

The answers to all these questions are ambiguous. Frictions between the federal and state governments have been a constant in US history and the line dividing the responsibilities of each one is always questioned and altered by the courts. The answer to the first question is sometimes yes and others no. As shown, if marijuana production, possession and distribution affect interstate trade the answer is positive. In other cases like in Florida v. Jardines it may be negative.

The following two questions are centered in the conflict between the Sovereignty Clause and the Tenth Amendment. The inherent ambiguity of the system makes unpredictable many court decisions that may change through time depending on the opinion of the judges at the time.

In the case of marijuana in California, for example, the courts have considered that it was a case of two sovereigns with independent and separate criminal systems and law enforcement mechanisms. Simply, federal and state laws are inconsistent with each other and this clash limits what the federal government may do.

According to the courts, to preempt marihuana state laws it is necessary to show that the CSA is in “positive conflict” with state laws. To show this it should be “physically impossible” to comply with both, federal and state laws, or that the state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress’”. In the cases of Colorado and Washington State the issue would then be whether one of those two conditions is met.  What the courts will decide is not clear.

The federal government faces other obstacles to enforce its marijuana laws. First, the Supreme Court has not been able to solve the preemption issue. In fact, it has not drawn a clear line between “enumerated” and “non enumerated” powers. Second, the Supreme Court and Congress have not strengthened the capacity of the federal government to allow it to enforce its marijuana laws. Besides, the Supreme Court has never argued that Congress has power to prevent the states from allowing individual behaviors, even if they are prohibited by federal laws.

The Justice Department’s obligation to enforce marijuana laws across the country is also ambiguous. Any law enforcement agency has limited resources that must be allocated according to policy priorities. Besides, it should proceed within the law. These real constraints have lead to the “prosecutorial discretion” doctrine that gives the Justice Department a great deal of leeway in the way it confronts marijuana. In reality, while production, commerce and consumption of marihuana are illegal according to federal laws, the Justice Department is not obligated to confront state laws directly. This is basically a policy choice.

The federal government has little power to force the states to comply with federal laws that prohibit recreational marijuana use, and whatever power it has is also undermined by political realities. First, the conflict between federal and state marijuana laws encourages experimentation and weakens any stigma associated to marijuana use. Second, the distrust of the central government has increased in recent years. Third, individual rights issues would also be an obstacle for the federal government. Many of the preemption cases of the past were based on the federal government’s efforts to protect civil rights. In the 1960s federal laws preempted state racial segregation laws. Today the states are perceived as protecting individual rights from the federal government that appears to be limiting them.

Conclusions and consequences

The recreational marijuana policies of Colorado and Washington State present a great challenge to the federal government. In both states marijuana policy changes were the result of significant electoral majorities and in Colorado, of a State Constitutional amendment. Besides, during the Great Recession psychoactive drug use has not been a presidential campaign or a high priority issue for the federal government.

As mentioned above, the Tenth Amendment establishes that, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively or to the people”. The Colorado Constitutional amendment, is a decision by “the people” that denies the federal government the right to regulate marijuana within the state. In this case, a decision of the federal government to challenge Colorado and attempt to force the state to repeal the amendment is quite improbable and unlikely to be supported by the Supreme Court.

The current fiscal problems of the federal and states governments are also a major obstacle to federal marijuana law enforcement. On the one hand, they limit the federal government law enforcement resources and on the other, they are an incentive for the state governments to legalize and tax marijuana and cut incarceration and law enforcement expenditures.

For these reasons it is very likely that the federal government will follow a low profile strategy with respect of the Colorado and Washington States reforms and that, at least in the short run, it will try to look the other way and wait to see how things develop in those and other possible copycat states.

The disdain for the IDCR within the US is remarkable. Many Americans have very negative feelings toward the United Nations and fear the encroachment of a “World Government” that would undermine American liberties, and complying with the IDCR has not been popular in the US. The IDCR has not been a domestic policy instrument but it has been a main force behind American international drug policy. This is why the policies of Colorado and Washington State are going to have important unintended foreign policy consequences. These policies substantially undermine the IDCR in violation of the drug conventions which is important because the US is perceived across the world as the father, designer and main supporter of the IDCR.

The federal government may argue that it legally complies with the IDCR because Article Thirty Six of the Single Convention of 1961 on penal provisions only requires Parties to comply “subject to their constitutional limitations”, and that it is doing so. This argument might have some legal validity, although it is questionable because it would only be valid to penal provisions, not to legal recreational use. Besides, it is politically unsustainable.  There is no question that the Colorado and Washington State policies are a strong incentive for the countries in the Caribbean and South of the Rio Grande to diminish their anti drug efforts. This is particularly so with marijuana and asset and money laundering: “if Americans make money producing and selling marijuana to addicts, why could not we do the same?” Arguments like this would gain greater acceptance in those countries, especially in those where drug production and trafficking is associated to violence.

In Latin America it is frequently asserted that US policies have double moral standards. Supreme Court decisions like the one about the dog in Florida v. Jardines reinforce this belief, particularly when US encouraged and/or promoted anti drug policies in Latin America violate what their citizens consider are fundamental human rights. The developments in Colorado and Washington State reinforce this belief about US double standards.

There is currently a drug policy reform movement in Latin America exemplified by the Latin American Commission on Drugs and Democracy, the recent Uruguayan proposals to legalize recreational marijuana, and the O.A.S. Report on Drug Policies in the Americas. All these policy proposals contradict the IDCR. The US now would find it extremely difficult to oppose these policy changes which would encourage further reform attempts.

The drug policy debate is going to advance in the next few years. There is no question that policy changes similar to those of Colorado and Washington State will be part of the referenda to be voted on in the 2014 and 2016 elections in other states and that it is likely that at least in a few, they will pass. If this happens, it will be increasingly difficult for the US to pressure countries to comply with the IDCR.

At the international level, the Commission on Narcotic Drugs of 2013 will evaluate the progress of the global drug policy strategy formulated by the Commission in 2009. The Organization of American States has convened a conference for 2015 to evaluate the results of its drug Action Plan 2011-2015, and the UN has already programmed a 2016 General Special Assembly on drug issues. All these meetings will have to confront the challenge of the policy changes in Colorado, Washington possible other American States, and the possible changes in other countries.

Those meetings will present a challenge for civil society organizations particularly from Europe, Latin America and the United States that have led the drug policy reform movement. At the same time, other countries are likely to take the leadership of the opposition to drug policy reform. One may speculate that a possible coalition of Russia, Japan, China, Sweden, and the Muslim countries would oppose those changes. Another possible outcome would be a situation in which a few countries, mainly in Latin America, and some States of the American Union will experiment with policy reforms that, while being in violation of the IDCR, might be tolerated, at least in the short run, by most other countries. Of course, these scenarios are just speculation. I know I cannot foresee the future, but I am sure it is going to be interesting and will present great drug policy challenges.

This text was presented at the seminar on Global Drug Trends, organized in Oslo on August 22nd 2013 by the Norwegian Peacebuilding Resource Centre and the University Torcuato di Tella.

BIBLIOGRAPHY

Beyer, Steve, 2006, Ayahuasca in the Supreme Court

Garcia, Michael John, 2013, International Law and Agreements: Their Effect Upon U.S. Law, Washington, D.C.: Congressional Research Service, March.

Garvey, Todd, 2012, Medical Marijuana: the Supremacy Clause, Federalism and the Interplay Between State and federal Laws, Congressional Research Service, Report for Congress, November 9.

Mikos, Robert, 2012, On the limits of federal supremacy: when States relax (or abandon) marijuana bans, downloadable without cost from Social Science Research Network Electronic Paper Collection:

Musto, David, 1999, The American Disease. Origins of Narcotic Control, New York: Oxford University Press, Third Edition.

Taylor, Stuart Jr., 2013, “Marijuana Policy and Presidential Leadership: How to Avoid a Federal-State Train Wreck”, Brookings Institution, Governance Studies, April.