Below is my column today in USA Today on the Obama Administration’s decision to cut off water to legal marijuana growers. Notably, the business concern today for the rollout of legal pot sales in Washington is greater demand than supply. I previously wrote about how a little known board had effectively moved to end the debate over the Redskins name, an example of agencies increasingly intervening in social and political disputes. This move by the Bureau of Reclamation is a prime example of such intervention into political disputes and a troubling precedent for the future.
When voters in Washington state and Colorado legalized possession and sale of recreational marijuana in 2012, federal officials were not happy. They will be less happy Tuesday when pot officially goes on sale in Washington. Though the Obama administration has pledged to respect state laws, it is quietly going in the opposite direction by cutting off water to the growers. The idea seems to be that if the administration cannot dry up the public support for legalization, it will just dry up the plants themselves.
Like areas from health care to immigration, a sharp disconnect between voters and their government is growing by the day. The administration and Congress are losing the debate over legalization.
Many citizens do not see the logic or necessity in the crackdown on pot. Support for legalization is soaring. In 1987, only 16% supported legalization. That increased to 26% in 1996 and 43% in 2012. It now stands at 55%. Two states have responded with legalization, others have taken a smaller step of decriminalization, and 20 states have legalized medical marijuana over the opposition of the federal government.
With other programs such as health care already endangering Democrats in the next election, the administration does not want to openly oppose the wishes of more than half of the population. With one hand, it allows state experimentation, while the other hand, the Bureau of Reclamation turns off the spigot by ordering irrigation districts not to distribute federal water to farmers breaking national drug laws. No water, no pot.
The use of water as a weapon is not new in the West, where “water wars” were once common among ranches and even states. The federal government began in 1902 to take control over such waters with programs to build dams and waterways. What began as a few dozen projects grew into a massive system, in which the federal government controlled a significant portion of the water in 17 states with the construction of more than 600 dams and reservoirs. It is now the nation’s largest water wholesale operation, supplying to more than 31 million people and one out of five farmers in the West. It is not just water. The government’s 53 power plants annually provide more than 40 billion kilowatt hours that support millions of homes.
Though some have long chaffed at federal control over this essential resource, the government has insisted that its projects are designed to simply maximize the use of the resource. Indeed, with the growing national crisis over the loss of drinking water and many states experiencing droughts, the role of a neutral federal agency has never been more important.
That is why this latest move is so dangerous. The government already coerces states by withholding money unless they follow federal mandates. If the feds can now withhold water or electricity, too, that stranglehold will tighten.
The government supplies the water that sustains 10 million acres of farmland, and the farms that produce 60% of the nation’s vegetables and 25% of its fruits and nuts.
In Washington, that translates to the water for two-thirds of the state’s irrigated land.
Bureau spokesman Dan DuBray insists that the agency “is obligated to adhere to federal law.” However, that position is inconsistent with the actions of the Obama administration in other areas.
I testified in Congress on Obama’s non-enforcement orders issued in areas such as immigration and drug enforcement. In addition, Obama has issued controversial orders that effectively amend federal laws in ways that Congress had rejected. It rings rather hollow for the administration now to claim that it has no choice but to take this action to indirectly support drug laws when it has ordered the non-enforcement of so many others.
This is even less plausible when one considers that the Justice Department has altered its enforcement of the drug laws in light of state legalization. The administration is directly curtailing enforcement of the Controlled Substances Act, but a water agency is changing its operations to enforce that same law by other means. The agency could have simply supplied water to every state neutrally. Instead, it is taking action to punish these states.
The shutting off of the water in Washington and Colorado for these growers is not about pot but politics. Carl von Clausewitz once observed that “war is the continuation of politics by other means.” The same can be said about the opening salvo in a new water war.
Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, is a member of USA TODAY’s Board of Contributors.