Newspaper column: Nevada should challenge constitutionality of federal pot law

A week ago the Trump administration rescinded a series of Obama administration memos instructing federal prosecutors to back off enforcing federal marijuana laws in states that have legalized it, sending legal pot businesses into a dither, including those in Nevada.

Attorney General Jeff Sessions said he would leave it up to federal prosecutors to decide what to do when state law clashes with federal drug law. Justice Department officials said the previous administration’s stance allowed states to flout federal law.

Nevada Attorney General Adam Laxalt sent out an email saying his office is reviewing the change in the Justice Department’s stance on federal pot law enforcement and evaluating the ramifications for the state

“Although I opposed the Question 2 ballot initiative proposing the legalization of recreational marijuana in Nevada, I also pledged to defend the measure were it approved by the voters,” Laxalt stated. “Since Questions 2’s enactment, my office has vigorously defended it against two related lawsuits that threatened to slow or even halt the implementation of the law, and has further assisted with the formulation and adoption of regulations to allow dispensaries to commence sales of recreational marijuana within just six months of the law’s enactment. My office has expeditiously facilitated the implementation of the law in the face of considerable uncertainty about the status of federal enforcement activity.”

We suggest that the state’s attorney do what attorneys do: Sue.

The states aren’t flouting federal law, Congress is flouting the Constitution. If it took a constitutional amendment to allow Congress to make alcohol illegal during Prohibition, the same should be true for marijuana.

The 10th Amendment clearly states, “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.” Nowhere does the Constitution grant that power to Congress.

In fact, the divided Supreme Court decision upholding Congress’ power to ban marijuana is an absurdity constructed from a fatuity and makes a mockery of the principles of federalism.

In the case of Gonzales v. Raich, the high court found that Congress had the power under the Commerce Clause to prohibit a person from growing marijuana for her own consumption because it could affect interstate commerce. The court cited as precedent the New Deal-era case of Wickard v. Filburn, which said a farmer who grew wheat for his own consumption affected interstate commerce because, if he had not done so, he would’ve had to purchase wheat, thus affecting the market and price for wheat.

Thus the court essentially erased any distinction between interstate and intrastate commerce or even no commerce at all. Whatever the imagination can conjure.

 In his dissent in the pot case, Justice Clarence Thomas fumed, “Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything — and the Federal Government is no longer one of limited and enumerated powers.”

Thomas added, “This makes a mockery of (James) Madison’s assurance (in Federalist Paper No. 45) to the people of New York that the ‘powers delegated’ to the Federal Government are ‘few and defined,’ while those of the States are ‘numerous and indefinite.’”

Justice Sandra Day O’Connor also raised the issue of federalism, writing in dissent in Raich, “Relying on Congress’ abstract assertions, the Court has endorsed making it a federal crime to grow small amounts of marijuana in one’s own home for one’s own medicinal use. This overreaching stifles an express choice by some States, concerned for the lives and liberties of their people, to regulate medical marijuana differently. If I were a California citizen, I would not have voted for the medical marijuana ballot initiative; if I were a California legislator I would not have supported the Compassionate Use Act. But whatever the wisdom of California’s experiment with medical marijuana, the federalism principles that have driven our Commerce Clause cases require that room for experiment be protected in this case.”

With the court now more originalist in its composition, the arguments of Thomas and O’Connor might hold sway in a constitutional challenge of the federal marijuana law, should Laxalt and the attorneys general of the states that have legalized pot press the matter.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Editorial: Voters should decriminalize possession and use of marijuana for adults

Just as the Volstead Act did by creating Prohibition, the laws criminalizing the use and possession of marijuana have spawned a criminal industry and ruined lives without accomplishing the objective of legally imposed universal abstinence.

While we do not advocate nor even condone the use of either alcohol or marijuana, we find it contrary to the principles of a free society to punish individuals who do partake so long as they pose no threat to others — such as driving while under the influence.

Question 2 on the statewide November ballot, if approved by the voters, would amend state statutes to make it lawful for a person 21 or older to purchase and consume an ounce or less of marijuana. It also would allow those of the age of majority to grow up to six marijuana plants for personal use.

The measure also would allow the creation of taxed marijuana shops under the same precepts as liquor stores and tax such sales.

While proponents of the measure tend to harp on how much tax revenue might be generated by taxes on marijuana sales that would go to fund education, we prefer to highlight the individual liberty and the relief on law enforcement and the courts by not having to bother with enforcement of pot prohibition.

The argument for passage, as stated in the official explanation by the state secretary of state’s office, notes, “Marijuana prohibition is a failed policy in every sense of the word. Our government took a substance less harmful than alcohol and made it completely illegal. This resulted in the growth of a multi-billion-dollar underground market driven by drug cartels and criminals operating in our communities. We have forced law enforcement to focus on the sale and use of marijuana instead of on serious, violent, and unsolved crimes.”

It goes on to argue that shifting the production and sale of marijuana into the hands of tightly regulated Nevada businesses will result in safer and cleaner marijuana and possibly reduce the sale of pot to minors. Studies have found that teen marijuana use has fallen in recent years, even at a time when four states and the District of Columbia have legalized marijuana and 23 others, like Nevada, allow it for medicinal purposes.

The arguments against Question 2 have all the subtlety and persuasiveness of that old scare film “Reefer Madness.”

It makes no sense to continue to jeopardize the lives and livelihoods of those who deign to experiment with marijuana at some point in their lives, especially since the outcome is dictated by the near-random chance that some are arrested while others are not.

As we said, we do not advocate marijuana use any more than we advocate prostitution, which is legal in many rural Nevada counties, but rather come down on the side of decriminalization for consenting adults in a properly regulated setting.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Editorial: Why Nevadans should vote to legalize marijuana

Recently supporters of Question 2 on the November ballot, which would legalize and regulate the recreational use of marijuana, released a study of the economic impact on the state should the initiative gain voter approval.

The analysis by RCG Economics of Las Vegas estimates the legal pot industry could add $464 million in tax revenue for the state over the next seven years, as well as create 3,300 direct jobs by 2024. Each direct job usually spins off three indirect jobs. The report also said roughly half of the recreational marijuana sales would likely be to tourists, possibly increasing that sector of the state’s economy.

But that is not why we support passage of Question 2, but rather because it is a matter of basic liberty.

The Lockean or libertarian principles upon which this nation was founded hold that individuals are free moral agents who have a right to be secure in their life, liberty, and property and to use those rights however they so choose so long as it does not infringe on the rights of others. Such rights are not granted by government but are inherent — or unalienable.

Excessive use of marijuana may well be harmful to its users, just the same as alcohol, tobacco and over eating. This does not represent a reason for government to ban it outright and imprison those who use it or engage in buying and selling it.

David Boaz, executive vice president of the Cato Institute and author of “Libertarianism: A Primer,” explains the concept thusly: “Libertarianism is not libertinism or hedonism. It is not a claim that ‘people can do anything they want to, and nobody else can say anything.’ Rather, libertarianism proposes a society of liberty under law, in which individuals are free to pursue their own lives so long as they respect the equal rights of others. The rule of law means that individuals are governed by generally applicable and spontaneously developed legal rules, not by arbitrary commands; and that those rules should protect the freedom of individuals to pursue happiness in their own ways, not aim at any particular result or outcome.”

Question 2 would impose a 15 percent excise tax on marijuana wholesale transactions and the normal sales tax on retail sales. This money would be allocated for education. The Nevada Department of Taxation would issue licenses to those in the marijuana business. Pot sales locations would be subject to local zoning laws and, like alcohol sales, would generally be prohibited near schools, childcare facilities or churches.

Opponents of the measure argue legalization will make it easier for the drug to fall into the hands of minors, but we suspect regulated retailers will make it more difficult, because scofflaw street vendors have no scruples about to whom they sell.

Actually, studies have found that teen marijuana use has fallen in recent years, even at a time when four states and the District of Columbia have legalized marijuana and 23 others, like Nevada, allow it for medicinal purposes.

We do not advocate marijuana use any more than we advocate prostitution, which is legal in many rural Nevada counties, but rather come down on the side of decriminalization for consenting adults in a properly regulated setting.

It is insane that the fate of those who deign to use marijuana at some point in their lives is dictated by the near-random chance that some are arrested for its possession and spend the rest of their lives with a criminal conviction hanging over them, while others go on to become president.

Individuals should be allowed the freedom to live their lives as they so choose.

A version of this editorial appears this past week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Elko Daily Free Press

R-J editorial page does predicted about-face

You can’t say you didn’t see that coming.

For years the editorial stance of the Las Vegas Review-Journal has been notably libertarian leaning — strongly supportive of fiscal conservativism but taking a live-and-let-live stances on social issues, including the futile war on drugs that has criminalized victimless recreational drug use.

On Dec. 20, shortly after the staff of the newspaper learned its new owner was the family of billionaire casino owner Sheldon Adelson, an editorial appeared offering predictions on how things might change in future editorials. “The Las Vegas Review-Journal’s editorial page can become his family’s personal soap box, if that’s what they want,” the editorial stated.

This is what it forecast on the drug war:

Drug policy: The Review-Journal was one of the first editorial boards in the country to condemn the failed federal war on drugs and advocate decriminalization of narcotics, starting with marijuana. The newspaper endorsed the state constitutional amendment that legalized medical marijuana and backs the approval of a 2016 Nevada ballot question to allow legal recreational marijuana. Mr. Adelson, who lost a son to a drug overdose, opposes the legalization of marijuana for any use. Last year, he and his wife, Miriam, a physician and expert in drug addiction, provided the vast majority of funding for the campaign to defeat a ballot question that would have legalized medical marijuana in Florida. Their campaign prevailed.

Potential change in position: Complete reversal.

Today the lede editorial in the paper is a point-for-point refutation of Question 2 on this fall’s Nevada election ballot that would decriminalize for people 21 and older possession of an ounce of marijuana for recreational use, and impose a 15 percent tax on its sale with revenues earmarked for education.

Adelson and wife

The editorial says marijuana is more hazardous than proponents claim. “Marijuana contains nearly 500 dangerous chemicals when inhaled or ingested, including about five times more tars and other cancer-causing agents than tobacco smoke. Cancer, respiratory diseases, mental illness, birth defects, reproductive problems and irreversible brain damage are all linked to marijuana use,” it says.

It calls pot a gateway drug, says it has not raised as much revenue as predicted in other states, has increased emergency room visits by tourists and claims only 0.7 percent of Nevada inmates are jailed for only simple pot possession — ignoring the fact prosecutors tend to pile on charges

Just a couple of weeks before that Dec. 20 forecast editorial, the paper editorialized in favor of decriminalization of weed by removing marijuana from Schedule I of the federal Controlled Substances Act.

That editorial concluded:

Beyond getting the Department of Justice out of the growing legal marijuana industry, reclassifying marijuana will keep more nonviolent offenders out of jail and prison, as well as generate more tax revenue for states and local governments.

It’s an important — and long overdue — start to changing the costly trajectory of the failed war on drugs.

In May 2014, an R-J editorial called on readers to sign a petition to put pot legalization on the ballot.

A November 2014 editorial concluded, “Legalizing marijuana would allow Nevada to help lead the country away from one of its most expensive mistakes.” reported in January, “According to journalists present at a Monday meeting with publisher Jason Taylor and interim editor Glenn Cook, Adelson and his wife Miriam are asking editorial board members to visit a drug treatment center and reconsider the publication’s support for ending prohibition ahead of a November vote on legalizing marijuana in Nevada.” This was buoyed by copies of Tweets sent by several reporters present at the meeting.

He might have started by “asking,” but orders work better.



Harry and Barry: Another coincidental change in positions

I didn’t get the memo. Did you? You know, the talking points memo for Democratic leadership.

In May 2012, within days of each other Barack Obama and Harry Reid changed their respective tunes on gay marriage.

A younger Obama smokes or tokes?

Reid, D-White House, told reporters he would vote to legalize same-sex marriage if it were put on the ballot in Nevada, though a decade ago he voted for a constitutional amendment in Nevada to ban gay marriage.

The Las Vegas Review-Journal reported, “Reid says he personally believes marriage is between a man and a woman. But like President Barack Obama, who announced Wednesday he supported gay marriage, Reid indicated this week the time may be right for society to reflect a view he said probably ‘will carry the future.'”

Now, within days of each other, Harry and Barry have come out for softer punishment for marijuana users.

In an interview with the Las Vegas Sun, Reid said the current prosecuting and sentencing for marijuana use was flawed. “I guarantee you one thing,” Reid said. “We waste a lot of time and law enforcement going after these guys that are smoking marijuana.”

Now, in an article in The New Yorker posted online, Obama says, “(W)e should not be locking up kids or individual users for long stretches of jail time when some of the folks who are writing those laws have probably done the same thing.”

While Harry denied ever trying pot, Obama admitted he was one of those “folks.”