By Jacob Sullum
Yesterday Arizona Gov. Jan Brewer finally dropped her pretense of merely trying to clarify whether her state's medical marijuana law is pre-empted by the Controlled Substances Act and asked a federal judge to overturn it. Specifically, Brewer argues that the provisions calling for state-licensed dispensaries (as opposed to the provisions allowing patients to use marijuana as a medicine) violate the CSA and could expose state employees to federal prosecution. She took that position after U.S. District Court Judge Susan Bolton said she would dismiss the case unless the state picked a side.
Brewer, who blocked the licensing of dispensaries last May, opposed the medical marijuana law before voters approved it last November and has criticized it since then, but until now she has not explicitly tried to nullify it. Her spokesman, Matthew Benson, still insists that "she does support the will of the voters." Benson also claims that Brewer's eagerness to let the federal government dictate state policy in this area is perfectly consistent with the federalist principles underlying her insistence on state autonomy regarding health policy and immigration enforcement:
The governor has never claimed state law supersedes federal law. The argument has always been federal government, do your job, enforce the law, enforce immigration law, enforce drug law. That is what this has always been about.
But even if we assume the Supreme Court was right to conclude that the federal government's job includes enforcing marijuana prohibition even in states that allow medical use of the drug (a point that defenders of the 10th Amendment would have to question), that does not mean states are obligated to help. The federal government has no authority to prevent states from carving out exceptions to their own drug laws (or repealing them entirely, for that matter). For any true federalist, there is an important principle at stake here, one that Brewer is willing to sacrifice because she disagrees with the policy chosen by Arizona's voters.
Another opponent of the medical marijuana law, Maricopa County Attorney Bill Montgomery, responds to that point by tarring federalism with an old brush:
I'm not arguing for states' rights in this regard as much as I wouldn't argue for states' rights in furthering the institution of slavery. It's against federal law.
Leaving aside the odious moral equation of freedom with its opposite, slavery is not just "against federal law"; it is banned by the Constitution. The 13th Amendment explicitly gives Congress the authority to prevent the buying and selling of humans, regardless of the policy favored by any particular state. Not so the cultivation, possession, and distribution of marijuana, which the Constitution allows states to address as they see fit.