For months, the Obama Administration has been dealing with the growing revolt among the states over federal marijuana laws. Twenty states and the District of Columbia legalized medical marijuana use over the opposition of the federal government and medical use. Two states, Colorado and Washington, have legalized the sale and possession of marijuana. It is a classic conflict between states and the federal government under federalism. Some of us view the states as asserting a classic police power in an area that was left to the states under our federalism principles.
Now the Obama Administration has said that it will withhold water from state-licensed pot growers in Washington state and Colorado. The decision by the U.S. Bureau of Reclamation is particularly problematic given the fact that the federal government has stepped in to take effective control of the water resources in these states and now appears to be using that control to try to coerce states to change their laws to satisfy the federal government.
Dan DuBray, the agency’s chief of public affairs, insists that “[a] a federal agency, Reclamation is obligated to adhere to federal law in the conduct of its responsibilities to the American people.” However, that position is inconsistent with the actions of the Obama Administration in other years. I recently testified (here and here and here) and wrote a column on President Obama’s increasing circumvention of Congress in negating or suspending U.S. laws. The Obama Administration has no qualms about rewriting laws like the ACA or ordering the non enforcement of other laws like the controversy over the DREAM Act. However, when administering a water resource, the Administration insists that it has to actively cut off water in order to indirectly support federal marijuana.
This argument is even less plausible when one considers that the Justice Department has altered its enforcement of the actual drug laws in light of these two state changes. So, the Administration is directly altering enforcement of the Controlled Substances Act but a water agency is actively changing its operations “in a manner that is consistent with the Controlled Substances Act.” Note this policy is not a refusal to make a change of accommodation but a decision to take action in a way to punish growers.
The decision of the federal government to take control of the water resources out West has long been controversial. Many warned that the control of water could result in an attempt to control a state’s internal policies or laws. The Bureau of Reclamation, the nation’s largest wholesaler of water, was created in 1902 to cover 17 states due to the building of federal dams and canals that took control of what was once free flowing surface waters. Part of the Department of Interior, it now delivers water to more than 31 million people and one out of every five Western farmers. In Washington state, that translates to 1.2 million acres of land — much of which is coming from the Columbia and Yakima rivers which once were under state control.
This is the first time in recent memory that the government is using the control as a weapon to punish errant states over its laws. The agency controls two-thirds of the water of Washington state’s irrigated land. Washington is most at risk for that reason (Oregon’s pot farms are only allowed for indoor growing).
Reprinted with author’s permission.
