In the November 1998 and 2000 elections, Nevada voters passed an initiative that amended the state Constitution to legalize marijuana for medical purposes. This year at the polls, Nevadans will face another marijuana initiative- Ballot Question 9. In order to become law, the Nevada Constitution requires that Question 9 pass in two successive elections, first in 2002 and again in 2004. If it passes twice, Question 9 would have the effect of further amending the state Constitution to decriminalize recreational use and possession of three ounces or less of marijuana by adults 21 years and older. Additionally, Question 9 requires the Legislature to provide and maintain penalties for the unauthorized use of marijuana, and to develop a system for the regulation, taxation, cultivation, and distribution of marijuana. Further, Question 9 mandates that the Legislature create a "legally regulated system that would allow medical marijuana patients to purchase low-cost marijuana." Nevadans for Responsible Law Enforcement, Home page, http://www.nrle.org (accessed Aug. 28, 2002).
Proponents describe Question 9 as a much-needed and overdue measure that "removes the threat of arrest for responsible marijuana use and punishes irresponsible use." Id. They argue, "it is a waste of tax dollars to arrest people for small amounts of marijuana" and that, if passed, "this proposal will allow law enforcement and the courts to focus resources on more serious crimes." Ballot Information for Ballot Question 9, http://www.sos.state.nv.us/nvelection/2002 bq/bq9.htm (accessed Sept. 14, 2002).
Opponents of Question 9 call the initiative dangerous and say that proponents are ignoring the potential dangers that would crop up, such as increased drug use. Additionally, opponents charge that Question 9 has no "purpose other than to further a policy agenda to legalize all drugs." Id.
Question 9 contains some drafting issues. Question 9 requires the Legislature to provide penalties for someone "driving dangerously" while under the influence of marijuana. Text of the Initiative, http://www.nrle.org/intiative.html (accessed Aug. 27, 2002). This language may conflict with Nevada's current driving under the influence (hereafter "DUI") statute and if so, Question 9 may serve to preempt the current DUI statute. Additionally, Question 9 is ambiguous as to how the Legislature is to develop penalties and systems of taxation and regulation. The text of the initiative provides only that the Legislature "shall" develop these programs, but lacks any substantive language or guidelines for the Legislature to follow. Id.
Question 9 also presents issues with the United States Constitution and a federal statute known as the Controlled Substances Act. The Controlled Substances Act prohibits the manufacture and distribution of marijuana. 21 U.S.C.A §§ 801, 812, 841 (West 2002). Question 9, if passed, would allow both the manufacture and distribution of marijuana for recreational use. Thus, because a conflict exists between Question 9 and federal law, initiative proponents will have to defend Question 9 and its constitutional infirmity.
Until a year ago, Nevada had the strictest drug policy in the nation with non-medical possession and use punishable as a felony with up to one year in jail. The 2001 Legislature reevaluated that tough stance and considerably reduced the penalty for possession of less than an ounce from a felony to a misdemeanor with a $600 fine. 2002 Nev. Stat. 453.336.
Question 9 would further amend the Nevada Constitution by adding provisions to Article IV, section 38, which would decriminalize and regulate the limited use and possession of marijuana. Many other states have reduced penalties for marijuana use and possession and others have legalized marijuana for medical purposes. Nevada, however, might be the first in the nation to legalize marijuana for recreational use.
1. Amendments to Article IV, Section 38 a. Section 38 and Section 38(1)
1. Amendments to Article IV, Section 38
a. Section 38 and Section 38(1)
This section places much power, coupled with very little substantive guidance, into the hands of the Legislature and requires it to "devise or maintain penalties for:
d. Section 38(4)
Section 38(4)(a)-(d) is the language that currently authorizes the use of marijuana for medical purposes. This section would be amended to read "marijuana" in all provisions where "the plant" had been used.
Section 38(4)(e) requires the Legislature to authorize "appropriate methods for supply of marijuana to patients authorized to use it" and adds that the Legislature must develop a plan for "the distribution of marijuana at low cost to those patients." Id. at 2.
Section 38(4)(f) empowers the Legislature to create a system for "regulation, designed to curb the unlawful production of or trafficking in marijuana, for the cultivation, taxation, sale, and distribution of marijuana to persons authorized under this section to use or possess it, under which:
e. Section 38(5)
Section 38(5) would be amended to strike out the language "this section does not (a) authorize the use or possession of the plant for a purpose other than medical or for a medical purpose in public." Id. Further, 38(5) would leave intact the language that, this section does not "(b) require reimbursement by an insurer for medical use of marijuana or accommodation of any use, possession, or being under the influence of marijuana in a place of employment." Id.
f. Section 38(6)
Section 38(6) significantly provides "any statute or regulation inconsistent with this section is null and void after January 1, 2005." Id. at 2-3.
A. "Driving Dangerously"
The most significant drafting issue with Question 9 is Section 38(3)(a) which empowers the Legislature to provide or maintain penalties for someone who is caught "driving dangerously" while under the influence of marijuana. Nevada's current driving under the influence statute does not dictate that someone should be "driving dangerously" before he or she can be arrested for a DUI. 2002 Nev. Stat. 484.379. Instead, the statute provides that someone "must simply be impaired or driving with a prohibited substance in his or her blood." Glenn Puit, Marijuana on ballot: Question's wording challenged: Prosecutors say measure circumvents DUI law, Las Vegas Review-Journal (July 31, 2002).
Opponents assert that although "the authors of the initiative
might not have intended to contradict state law," this
potential conflict is especially concerning given Section
38(6) of the initiative, which provides that a regulation
inconsistent with the initiative is "null and void."
Id. Consequently, if the Legislature, upon developing
penalties in accordance with Question 9, uses language contrary
to the current DUI statutes, the new penalties could negate
those older statutes.
B. "The Legislature Shall"
Additional drafting issues stem from the ambiguous provisions of Section 38(3)(a)-(d) and Section 38(4)(f). Most initiatives come complete with language that provides for a new law in addition to providing procedures for implementing and enforcing the new law. However, Section 38(3)(a)-(d) and 38(4)(f) require simply that at some point in time the Legislature "shall provide for" various substantive rules, procedures and systems designed to provide the "meat" of the initiative. Although it may be unusual for a ballot initiative to lack such significant information, it does appear to make some sense. After all, the Legislature is the body most experienced in setting penalties for criminal statutes and it does have vast knowledge of systems designed to regulate and tax commodities.
Perhaps the largest question raised by Question 9 is whether it will withstand a court challenge based on its constitutional infirmity.
A. Recent Medical Marijuana Litigation
In 2001, the United States Supreme Court decided the first medical marijuana case since California voters legalized its use in 1996. The Supreme Court granted certiorari of United States v. Oakland Cannabis Buyer's Cooperative because the Ninth Circuit Court of Appeals' "decision raises significant questions as to the ability of the United States to enforce the Nation's drug laws." 532 U.S. 483, 489. The issue in this case was whether there was a "medical necessity exception to the federal Controlled Substances Act's prohibitions on manufacturing and distributing marijuana." Id. at 486. The Cooperative argued that the Controlled Substances Act is "subject to implied exceptions, one of which is medical necessity medical necessity should be read into the Controlled Substances Act." Id. at 490. Further, the Cooperative argued, "shorn of a medical necessity defense, the statute exceeds Congress' Commerce Clause powers." Id. at 493. The United States, however, argued "whether or not the Cooperative's activities are legal under California law, they violate federal law" and that "for marijuana, there is but one express exception, and it is available only for Government-approved research projects." Id. at 487, 490.
The Court held that "there is no medical necessity exception to the Controlled Substances Act's prohibitions on manufacturing and distributing marijuana." Id. at 490. In so holding, the Court stated "we recognize that a medical necessity exception for marijuana is at odds with the terms of the Controlled Substances Act and its provisions leave no doubt that the defense is unavailable." Id. at 491. Additionally, the court provided that "the statute expressly contemplates that many drugs have a useful and legitimate medical purpose and are necessary to maintain the health and general welfare of the American people, but it includes no exception at all for any medical use of marijuana." Id. at 493. Further, Justice Thomas stated that because the Ninth Circuit did not address the Cooperative's claim regarding the Commerce Clause, this Court would not pass "on a Constitutional question, such as whether the Controlled Substances Act exceeds Congress' power under the Commerce Clause." Id. at 495.
Justice Stevens, with whom Justice Souter and Justice Ginsburg joined, concurred in the judgment. In this opinion, Stevens emphasized the "importance of showing respect for the sovereign States that comprise our Federal Union." Id. at 501. Further, he stated that it is a duty of the courts to "avoid or minimize conflict between federal and state law, particularly in situations in which the citizens of a State have chosen to 'serve as a laboratory' in the trial of 'novel social and economic experiments without risk to the rest of the country'." Id.
The Court appears to have limited its holding in United States v. Oakland Cannabis Buyer's Cooperative by specifically reserving the question regarding Congress' power to regulate drugs under the Commerce Clause power. Even with this language, it is unlikely that an attack on Congress' apparent Constitutional authority for enacting the Controlled Substances Act would be a successful defense of Question 9.
B. The Supremacy Clause
Article VI of the United States Constitution, better known as the Supremacy Clause, provides that "the Constitution, and the laws of the United States shall be the supreme law of the land and anything in the Constitution or laws of any State to the contrary not withstanding." U.S. Const. art. VI, cl. 2. In other words, in case of conflict, federal law is supreme.
If Question 9 passes and becomes state law, it will conflict with the federal Controlled Substance Act. This Act divides drugs into five schedules, depending on whether the particular drug has current accepted value as a medicine. 21 U.S.C.A. §§ 801, 812, 841 (West 2002). The Act then applies restrictions on the manufacture and distribution of the drugs based upon the schedule in which it was placed. Schedule I is the most restrictive and contains drugs with little or no accepted medical value, such as heroine, PCP, LSD and marijuana. The Act prohibits the manufacture, distribution, possession with the intent to distribute or manufacture of marijuana, except in very limited situations where it may be used in government sponsored medical research. Id.
C. The Commerce Clause
Thirty-one years ago, Congress passed The Controlled Substances Act under an apparent Constitutional grant of authority. Id. This authority, known as the Commerce Clause Power, derives from Article I, Section 8 of the Constitution. This section provides that Congress "may regulate commerce among the states and it may enact all laws 'necessary and proper' to the execution of any powers entrusted to the central government." David P. Currie, The Constitution of the United States, page 3 (The University of Chicago Press 1988).
The Commerce Clause power is very broad and litigation concerning the extent of this power has produced case law that has served to both define and limit Congress' use of this power. Katzenbach v. McClung, 379 U.S. 294, 305 (1964). In early cases, the Court declared the general rule that the Commerce Clause grants power to regulate traffic and commercial intercourse in all its branches, wherever the subject exists, with the exception of commerce which concerns only one state, is completely within that state, and with which Congress finds it not necessary to interfere for the purposes of executing some general power of the Government. Gibbons v. Ogden, 22 U.S. 1, 195 (1824).
In later cases, the Supreme Court stated that Congress is authorized to regulate any activity, even intrastate activity, if there is a rational basis for Congress' finding that the activity, in the aggregate, substantially affects interstate commerce. Katzenbach 379 U.S. at 302-304. Recent cases have further refined the scope of the Commerce Clause power. United States v. Lopez 514 U.S. 549, 561 (1995) provided that Congress may not use the Commerce Clause as a justification to criminalize local activity when that activity does not, even when aggregated with similar activity across the country, have a substantial effect on interstate commerce. Additionally, United States v. Morrison 529 U.S. 598, 617 (2000) held that Congress "may not regulate non-economic, violent criminal conduct based solely on that conduct's aggregate affect on interstate commerce." Finally, in deciding Lopez and Morrison, the court stressed that the link between the regulated activity and interstate commerce must not be too attenuated. Lopez 514 U.S. at 567, Morrison 529 U.S. at 615.
D. A Court Challenge
Question 9 proponents recognize that their initiative may conflict with current federal law. Their answer is two-fold. First, proponents argue that, because Question 9 must win in two successive elections, there is plenty of time between the 2002 election and the 2004 election for federal law to change. Second, proponents assert that the United States drug enforcement agencies will not bother to go into Nevada to arrest citizens for possessing three ounces or less of marijuana. The Federal authorities, proponents argue, have bigger worries, such as arresting people who possess or try to sell three hundred pounds of marijuana. However, to assert federal dominance, the United States could simply seek an injunction against the Nevada state legislature, thereby prohibiting it from enacting any further laws in accordance with Question 9. The proponents would probably then initiate a constitutional challenge of the Controlled Substances Act.
To defend the constitutionality of the Controlled Substances Act, the United States would argue, first, that there is a conflict between federal and state law. They would further contend that when a conflict exists, the Supremacy Clause states that federal law is supreme and thus Nevada's law is void. Proponents, however, would counter that the Supremacy Clause is not applicable because Congress lacked the authority to enact the Controlled Substances Act. Therefore, there is no legitimate conflict between federal and state law. If the proponents' arguments succeed, the Federal authorities would need to defend Congress' regulation of controlled substances. The United States would have to argue that controlled substances are economic and interstate in nature. To do so, the Federal authorities could point to congressional findings made before the passage of the Controlled Substances Act in 1971. These findings are listed in §801 of the Controlled Substances Act and declare the following:
(A) after manufacture, many controlled substances are transported in interstate commerce,
The United States would have to establish that there was a rational basis for these findings, which would probably not be difficult. Katzenbach, 379 U.S. at 304. The Federal authorities would assert that the sale of controlled substances in every state throughout the nation, whether by pharmacists or street dealers, generates billions of dollars each year and this money, along with the drugs, travel in interstate commerce. Further, the United States could demonstrate the need for a strong national drug policy, which includes spending billions to protect citizens from unsafe and unapproved drugs through the Food and Drug Administration and keeping citizens safe from criminal drug trafficking through the Drug Enforcement Administration and the War on Drugs. Countering the opponents' wealth of Congressional findings would be difficult. As an initial matter, proponents could rely on Lopez and Morrison and attack the findings by arguing that the link between drugs and the effect on interstate commerce is too attenuated. Lopez, 514 U.S. at 567 and Morrison, 529 U.S. at 615. However, this is probably a losing contention considering that drugs and the money they generate move all across the country and thus the link appears very direct.
Next, proponents would have to analogize their case to a Supreme Court case that limited Congress' use of the Commerce Clause power. In Morrison the Court invalidated a Congressional act, which provided a civil remedy for the victims of gender-motivated crimes. Morrison, 529 U.S. at 601. The Court stated that although this conduct may have a substantial effect on interstate commerce, it is purely non-economic and violent and thus not within the scope of the Commerce Clause. Id. at 609. In order to satisfy the rule of Morrison, the proponents would have to argue that The Controlled Substances Act should be invalidated because drugs and their use, possession, distribution, and manufacture comprise non-economic, violent conduct and thus are beyond Congress's reach. Id. However, as stated above, it is likely that the United States could successfully establish, by overwhelming evidence, that drugs constitute economic, interstate commerce. Concerning the limitation that Congress cannot regulate violent conduct, it is unlikely that proponents would want to characterize marijuana use as violent, especially considering that the entire Question 9 campaign is premised on the idea that it is time to decriminalize non-violent marijuana use. Ultimately, proponents would be unable to make their case under Morrison.
A court would probably reach a similar result under Lopez. The Supreme Court, in a 5 to 4 vote, held that Congress invalidly passed a federal statute, which made it illegal to possess a gun in a schoolyard. Lopez, 514 U.S. at 551. The Court said this non-commercial conduct, even when aggregated with similar activity across the country, is not substantially related to interstate commerce. Id. at 561. Thus, the attempt to use the Commerce Clause as a justification to criminalize the local, non-economic activity was unconstitutional. Id. Question 9 proponents would need to argue that the Controlled Substances Act is another example of Congress attempting to criminalize the local activity of controlled substances, such as the local manufacturing, distribution, and possession. Proponents would argue this local conduct, even when aggregated with drug use throughout the nation, does not have a substantial effect on interstate commerce. Again, a court would probably give great deference to the Congressional findings in 21 U.S.C. §801(2)-(6) that specifically correlated a direct link between intrastate controlled substances and their overflow into interstate traffic, and thus the need for Federal control. Therefore, proponents would be prohibited from asserting that controlled substances and their regulation, even if local in nature, do not have a substantial effect on interstate commerce.
The United States would probably prevail on the general notion that drugs constitute economic, interstate commerce. Proponents, however, might point out that this particular Nevada law has specific guidelines designed to keep legal marijuana out of the flow of interstate traffic. Proponents would point to section 38(4)(f)(4) of the statue which provides "the transport of marijuana into or out of this state is prohibited unless federal law permits such transport." Text of Initiative, at 2. Katzenbach, 379 U.S. at 304, however, provided that under the Commerce Clause power, Congress is authorized to regulate any activity, even though intrastate in character, if there is a rational basis for a finding by Congress that the regulated class of activity, in the aggregate, substantially affects interstate commerce. Assuming a judge believes there was a rational basis for the 1971 Congressional findings, proponents would be required to show that this law would keep marijuana strictly within Nevada's borders. Although the Legislature may attempt to keep marijuana within the borders, it would be considerably more difficult to keep citizens of other states from traveling to Nevada to buy and use marijuana. In Heart of Atlanta Motel, Inc. v. United States 379 U.S. 241, 256 (1964) the Supreme Court held that interstate commerce includes the movement of people across state lines. Thus, the first time a citizen of another state traveled across state lines to smoke marijuana in Nevada, interstate travel and commerce would be implicated.
Proponents of Question 9 include the sponsoring group, Nevadans for Responsible Law Enforcement, and national groups aimed at achieving less restrictive marijuana laws, including the National Organization for Reform of Marijuana Laws (NORML). The proponents essentially view Question 9 as a pro-law enforcement initiative. Question 9, they contend, is the right way to decriminalize marijuana and allow "police to spend more time going after murderers, rapists, and other violent criminals, rather than wasting valuable resources hunting down tens of thousands of nonviolent marijuana users." Vote "YES" on Question 9 in November, Ballot Question 9 Home http://www.nrle.org (accessed Aug. 28, 2002).
Proponents also contend that Question 9 is a cost efficient law because through the taxes generated and the money saved from refocused resources, it will eventually pay for itself. Further, proponents assert that Question 9 will not result in more costs through increased health care needs because marijuana has "fewer harmful side effects than alcohol and tobacco, which are already legal and regulated by the state." Ballot Information on Ballot Question 9 at 2.
Opponents to Question 9 include John Walters, United States Drug Czar, DEA Director Asa Hutchinson, the Nevada District Attorneys Association, and the Nevada Conference of Police and Sheriffs. These opponents contend there are greater dangers associated with allowing law enforcement to re-focus resources based on the decriminalization of marijuana than proponents acknowledge. Id.
Opponents argue that marijuana is a "gateway drug"
that leads users to try "harder drugs" like heroine
or cocaine. Thus, opponents contend that not only will Question
9's passage increase the number of marijuana users but it
will also increase the use of other drugs. According to opponents,
the decriminalization of marijuana will not lead to a refocusing
of law enforcement resources to other crimes, but actually
will end up costing the state more of these valuable resources
as drug use increases. Opponents argue that the increase in
substance abuse, crime, and the number of Nevadans addicted
to drugs will quickly deplete any state monies saved, or earned,
under Question 9. Id.
Two years ago Nevada voters already agreed to legalize marijuana for medical purposes. Last year, the Nevada legislature considerably reduced the criminal penalties for simple possession of marijuana. Now the voters must decide if this wave of decriminalization should continue. If Question 9 passes in the two required successive elections, it would amend the Nevada Constitution and allow the possession of three ounces or less of marijuana by adults 21 years and older. Proponents contend Question 9 will allow for law enforcement responsibility while opponents contend that Question 9 will do nothing but cause law enforcement more headaches.
There are several issues related to the drafting of Question 9. Most of these issues center around whether Question 9 will negate Nevada's current DUI statutes. In addition, issues might exist as to the large grant of power to the legislature to develop systems of regulation, cultivation, and taxation for Question 9. Ultimately, if the state legislature did develop penalties for "driving dangerously" which conflict with the already existing DUI penalties, a court likely would uphold the most recent enactment. Thus, a court likely would allow the "driving dangerously" penalties to control and serve as good law. This situation can be avoided, however, if the legislature strives to be careful and consistent with language when developing the necessary penalties for Question 9.
There is also an issue related to Question 9 and the U.S. Constitution. The Supremacy Clause may serve to strike down Nevada's law. However, proponents may have a chance to argue that a conflicting federal law does not exist, by asserting that Congress overstepped its bounds by enacting the Controlled Substances Act. Ultimately, should Question 9 pass, it is unlikely that proponents would be able to defend it and its constitutional infirmity because drugs, including local possession, local distribution, local manufacturing, and local regulation, do constitute interstate commerce.
©2006 Pacific McGeorge School of Law • Sacramento • California