Monday, May 31, 2010

Federalism and Fiscal Policy

Federalism and Fiscal Policy

One objection to modifying state marijuana laws is that the state cannot act contrary to federal law. While that proposition may be correct as a general rule, the principles of federalism, or the allocation of power between the federal government and the states, are more nuanced than that broad statement would indicate. One part of the problem is what effect the enactment of a federal criminal statute has on a state’s ability to legislate on the same subject.

On the most fundamental level, the Supremacy clause of the Constitution requires that when congress enacts a criminal statute, all people in the country must obey it, including state officials and agents. A governor cannot have his own private stash of cocaine and a professor in a state university may not experiment on marijuana without a federal license to do so.

One major consequence of this principle is that state law may not overrule federal law and make it inapplicable within the state. Therefore, a state law legalizing marijuana would not nullify the application of the Federal Controlled Substances Act within the state. A state resident, even if in conformity with a valid state statute could still be convicted in federal court for possession or delivery of marijuana.

State laws may not hamper the execution of any federal project. When I was young, I was amused to find out the truck I drove for the Post Office had no state license plate and I could not be required to have a state driver’s license to operate it. (We were required to obey most local traffic laws because the Post Office ordered us to, but the local police could not give us tickets.) Likewise, local law cannot require federal law enforcement officers to get warrants from state courts before conducting searches or making arrests and the state cannot require federal officers to wear uniforms.

The states ordinarily are not obligated to enforce federal laws. Local police do not pursue counterfeiters nor screen people on the streets for illegal aliens. Likewise, federal officers are not in the business of catching murderers or pursuing speeders.

In some areas, state and federal responsibility may overlap. Robbing a bank is a state crime, and robbing a bank with a federal charter is a federal crime. Kidnapping is local, but if it crosses a state line it becomes a federal crime as well. In these cases, both sets of police agencies are active and usually cooperate with each other.

A major part of this separation of policing is fiscal. If the federal government were able to co-opt local police agencies, then the national government would, in effect, be determining how state and local governments allocate their tax dollars. This control would have the potential to allow the federal government to control all aspects of local government.

(When the federal government does need local assistance, they reverse this equation. It uses federal dollars to make grants to states and cities that fulfill the conditions imposed on those grants. This approach has mandated things like uniform national speed limits and drinking ages.)

While a state may follow the federal government by criminalizing the same conduct, making it a state offense as well as a federal one, the states do not have to do so. The Texas Court of Criminal Appeals once ruled that it was unconstitutional under the state constitution for the legislature to delegate its authority by enacting a statute that would automatically make illegal possession of any drug declared illegal by the federal government. The state was required to exercise its own judgment on the issue.

The most famous example of a state’s refusal to copy the federal law occurred in 1923 when New York rescinded its own alcohol prohibition law and directed its law enforcement personnel not to enforce federal prohibition. The result was widespread drinking and a flourishing entertainment industry in spite of the actions of the federal revenue agents.

Many states are considering a similar action today. They are examining legalization of marijuana under state laws. While this legalization would not nullify federal law, it would remove state law enforcement and courts from acting against marijuana users or suppliers, saving those states very large sums and allowing the closure of some prisons. Those states would only be following the trail blazed by New York over eighty years ago.

If populous states like California, Texas, or New York were to change their laws in this way, national marijuana prohibition would probably end as well. The federal government has never been able to enforce its prohibition laws –alcohol or drugs – but has relied on the states for enforcement efforts. The DEA and FBI together do not have as many officers as some of the large municipal police forces. Any large city processes more criminal cases each year than do the federal courts, and the federal prison system holds fewer inmates than do several of the large states. The federal government would have to increase the size of the Department of Justice to a size comparable to the Department of Defense, and with a similar budget, to maintain the current level of drug law enforcement. A major question would be whether the citizens would accept a federal police force as large as their local police in their cities. That presence would be a revolutionary change in American politics.

If the states want to change their drug laws to be less comprehensive than the federal law, they have the right and ability to do so. The ultimate effect of those changes could be far-reaching and beyond what most of us can predict.

Monday, May 24, 2010

APA: Drug Test Results Often Flawed

This is the first time I have posted an article from somewhere else, but this one is so important that it needs the widest exposure possible (i.e., show it to your school board, your boss, and your congresscritters)

APA: Drug Test Results Often Flawed

By Kristina Fiore, Staff Writer, MedPage Today

Published: May 23, 2010

Reviewed by Robert Jasmer, MD; Associate Clinical Professor of Medicine,

University of California, San Francisco and Dorothy Caputo, MA, RN, BC-ADM,

CDE, Nurse Planner

NEW ORLEANS -- That poppy seeds can lead to false-positive results on tests

for opioid abuse is not just an urban legend, researchers said here.

Amounts as small as a teaspoon -- at least the amount on a poppy seed bagel

-- can trigger a positive finding, and can last for two to three days after

consumption, according to Dwight Smith, MD, of Boston Medical Center, and


The example is one of many suggesting that drug-abuse tests often give

inaccurate results, according Smith's presentation here at the American

Psychiatric Association's annual meeting.

Another example is that most standard drug tests don't screen for the opioid

drug oxycodone, as well as a handful of other opioids including methadone

and fentanyl, Smith noted. Physicians must specifically order these assays.

"There are gaps in our understanding of the science behind drug tests, and

how that leads to our interpretation of testing results," Smith said. That's

one of the reasons he and colleagues conducted a review of the literature on

drug tests, their scientific background, and potential clinical concerns.

The latter are particularly important because drug screens are so common,

Smith said. Last year, about 150 million drug tests were conducted in the

United States.

"We drug test everyone in the states nowadays -- our students, our

athletes," he said. "It's a condition for employment in many federal and

private agencies."

Still, many physicians may not be aware that ordering a general "drug test"

won't cover all their bases, or that half of patients who are abusing

substances will be missed.

One study in the review found 88% of physicians were unaware of the need to

request the specific oxycodone assay, and half did not know about the

false-positives associated with poppy seeds.

Opioid tests screen for morphine and codeine, which are two of the most

common metabolites of many -- but not all -- opioids. They're not

metabolites of oxycodone, methadone, fentanyl, tramadol (Ultram), and

buprenorphine (Subutex, Suboxone), Smith said.

"You need to order the specific assays in order to accurately interpret

those," he added.

Similarly, only certain metabolites of benzodiazepines are detected on most

assays. That means diazepam, nordiazepam, and oxazepam (Serax) will be

detected, but alprazolam (Xanax), lorazepam (Ativan), and clonazepam

(Klonopin) aren't frequently screened.

Part of the problem is that there are no federal guidelines for minimum

negative threshold levels for a positive test, Smith said. Plus, each

laboratory has its own guidelines and procedures for dealing with test

sensitivity and specificity.

In their review, the researchers found that drug tests generally have a

sensitivity of 90% to 95%, and a specificity of 85% to 90%. These numbers

are a "pretty good basis" for making clinical decisions, Smith said, but

that means "one in 20 [tested patients] are going to have inaccurate

results, and those are more likely to be false positive than false


By comparison, confirmatory tests such as gas-chromatography

mass-spectrometry have a sensitivity of 99% and a similar specificity, but

they are more expensive.

Physicians "trust in science, and we believe [sensitivity and specificity]

are going to be higher than that when they're not," he said. "We really need

to get tests confirmed."

Many substances aside from poppy seeds cause these false-positives. Cold

medications can give a positive read on amphetamines, as can bupropion

(Wellbutrin) and tricyclic antidepressants.

Sertraline (Zoloft) and oxaprozin (Daypro) can alert physicians to a

benzodiazepine problem when there is none.

The HIV medication efavirenz (Sustiva) can come up as a positive for

marijuana use, and dextromethorphan, rifampin, and quinolones could show as

an opioid problem.

"If a patient does test positive, you need to take a careful medical

history," Smith said.

Smith also did some myth-busting, finding that there's no possibility of a

false positive resulting from passive inhalation of marijuana or cocaine --

unless they are exposed to an excessively concentrated amount of smoke.

"If a patient comes in and blames it on any of these scenarios, you can say,

'Unless you were in the van with Cheech and Chong, that's not what

happened,'" Smith said.

As far as false-negatives go, Smith said physicians should be wary of the

methods for diluting samples used in drug tests -- an issue he calls "the

elephant in the room."

On average, such strategies appear to work 50% of the time. These include

bleaching urine or adding the household cleaner Drano or the eye lubricant

Visine to it.

Others have gone to great lengths to design battery-powered devices that

keep urine warm, and offer a prosthetic device "in three or four skin tones"

for the most cunning of drug test cheaters, Smith said.

A fail-safe would be to screen the urine for its standard specific gravity

of <1.003, or standard creatinine under 20 mg/dL.

Yet no studies have been done to show exactly how prevalent drug test

cheating is, Smith said, adding that the area urgently needs research.

His advice to physicians who want to know the quality and the specifics of

the drug test reports they receive: "Become friends with the toxicologist in

charge of the lab. It's particularly helpful if the results of the test are


The review was based on studies found via a PubMed search between Jan. 1,

1980 and Sept. 1, 2009.

Ronald Bugaoan, MD, medical director of High Point Treatment Center in

Brockton, Mass., who assisted in the study, said urine tests do indeed have

the longest window of detection for most substances.

However, gas-chromatography mass-spectrometry is the "gold standard" for

drug testing, and added that patients enrolled in the Massachusetts health

plan can get tests using it for only $12 apiece.

The researchers reported no conflicts of interest.


Primary source: American Psychiatric Association

Source reference:

Smith D, et al "An update on testing for drugs of abuse: Scientific

background and practical clinical concerns" APA 2010; Abstract NR7-05.

Monday, May 17, 2010

Alcohol and Marijuana

Alcohol and Marijuana

When Prohibitionists argue that we don’t need another legal intoxicant or when legalizers claim that pot is not as bad as alcohol they are both building on the public’s idea that all intoxicants are alike. The fact is that alcohol and marijuana have nothing in common except for their both being used in social situations.

Marijuana is not alcohol. This statement looks obvious, but both sides of the marijuana legalization debate regularly conflate the two. The result is debates that are heated and emotional but that do little to clarify the social issues at stake.

One of the more common arguments advanced by the anti-marijuana advocates is based on the problems with alcohol. They point out deaths among alcohol users – both acute poisoning and long-term illnesses caused by alcohol – and deaths caused by alcohol users in car wrecks and domestic violence. From there, they may go on to workplace problems: absenteeism, decreased productivity, and increased injuries and deaths. They then make the (unwarranted) assertion that marijuana is an intoxicant like alcohol. The next step is to combine the two to support the assertion that legalizing marijuana would create a second legal intoxicant – another alcohol as it were – and greatly increase the incidence of the social evils enumerated.

Both of these arguments share two faults. The most fundamental one is that alcohol and marijuana have almost nothing in common except for their use in social situations. The other is that they prey on the public’s ignorance of any altered conscience than that caused by alcohol.

The second problem is what makes the first one so vicious. Most people today have seen or dealt with someone who has had too much to drink. The local news highlights a drunk driver almost every night. If anyone has not had to deal with an alcoholic in the family, they will probably have coped with one at work. On the other hand, few have had encounters (at least that they knew about) with someone impaired with any other drug. The exception might be those who have experienced a slight high from nitrous oxide (laughing gas) at the dentist’s office or seen someone groggy after a night on sleeping pills. When the majority tries to imagine the effects of any drug used socially, the only experience they can call on is the one that they have derived from drinkers. The result is that when most people hear “legal marijuana” they see hordes of drunken – or at least tipsy – pot-winos staggering around. And this vision points out the major problem with these arguments.

The first difference between them is that alcohol is a deadly poison and marijuana is virtually harmless. Drinking leads to over 100,000 deaths a year from consequences of alcohol-related diseases and several thousand deaths from acute intoxication. Marijuana has never been identified as the cause of a single death resulting from consumption. Long-term studies, some covering over forty years, involving thousands of patients, show no measurable health differences between marijuana users – even heavy daily users – and those who do not consume it.

The second major difference is in their relations to violence. Alcohol-related car wrecks kill over fifteen thousand people a year in the United States. Studies by four national governments, including the National Transportation Safety Board of the U’s., show that drivers who have consumed marijuana are a safe as unimpaired drivers. While marijuana does impair scores on laboratory reaction tests, since it does not impair judgment, drivers are conscious of that impairment and adjust for their slower reactions.

Alcohol is the only drug the consumption of which has been linked to violent crime. While many criminals are high on stimulants when arrested, the drug use itself was not a direct cause of their criminal behavior. Those crimes committed for the purpose of obtaining drugs result from the economics of the drug laws, not from the action of the drugs themselves. Alcohol is a factor in a significant number of domestic violence cases, and entertainment venues serving alcoholic beverages are centers of many assaults, fights, and shootings. Marijuana, if it has any effect at all in these situations, tends to reduce aggression.

Alcohol has marked effects as a cause of workplace injury and decreased productivity from both absences and from lowered efficiency. None of these factors have been associated with marijuana.

Alcohol is also highly addicting. Around ten per cent of all drinkers become addicts, for whom withdrawal can even lead to death. Marijuana is not addictive, although a few users, around three per cent, develop habitual use that may require some slight help in stopping.

All of these differences stem from the differences in the way the two drugs effect the brain.

Alcohol is a sedative that decreases the functioning of all parts of the brain. It first lessens the activities of the pre-frontal and frontal cortexes, which are responsible for judgment and higher mental functions. One consequence is that one who has had a few drinks will think that he is a skilled race driver, not one too impaired to drive. Alcohol then hampers the motor centers of the brain, leading to slurred speech and uncoordinated movement. Ultimately, it will suppress consciousness and even respiration, leading to death.

Marijuana, on the other hand, affects only specialized cannabinoid receptors in the nervous system. This results in its effectiveness in treating pain, spasms, and nausea. Its other major effect is as a mood elevator, making the user more relaxed and more cheerful.

Both those wanting to legalize marijuana and those opposed to the idea can find some data to support their positions. But if they truly want to convince people that they are correct, their arguments should be based on fact and evidence. The most basic fact they must both deal with is that alcohol and marijuana are different and have almost nothing in common.