States gaining voice on drug laws
When Richard Nixon declared a “War on Drugs” in June 1971, he had little idea that he was also engaging Washington in a war with the states. In the decades since, the federal government has frequently asserted its primacy over the states on drug laws, despite the opposition of states-rights proponents. California began the state opposition movement in 1996 with the passage of the Compassionate Use Act by 56 percent of state voters, which allowed for the sale and consumption of medicinal marijuana; twelve other states have passed similar laws since. These laws, which are in conflict with federal law, have led to nasty legal, and sometimes even physical conflicts. With his election, however, President Barack Obama promised drug policy reform. Under the new administration, the federal government will temper its enforcement of federal drug laws, allowing the issue to fade from the national spotlight as the battle over cannabis use continues at the state and local levels.
History of Toughness
After passing the Controlled Substances Act in 1970, which includes marijuana in the highest level of illicit drugs, Nixon created the Drug Enforcement Administration to coordinate enforcement efforts. With changing administrations, though, the DEA has waxed and waned in enforcement of the CSA. Under President George W. Bush, the DEA was particularly powerful because Bush gave the agency permission to carry out raids against medicinal marijuana dispensaries in California. These raids sent a direct message to the dispensaries that the Bush administration considered federal drug laws superior to state laws.
Under the Obama administration, however, there are signs that this wave of enforcement is receding. Obama stopped the raids authorized under the Bush era, and Attorney General Eric Holder signaled that marijuana possession would be a low priority for the Justice Department. However, Obama has stressed that he has no plans to push for the legalization of marijuana at the national level. As Bruce Mirken of the Marijuana Policy Project told the HPR, Obama has his political capital tied to the debate over health care, and is “unlikely in the short term to stick his neck out too far” regarding drug policy. This hands-off approach likely means that debate over the issue will be left to the states.
The Court Weighs In
On questions of jurisdiction over drug laws, the Supreme Court has typically backed the federal government. The Court ruled in 2005 in Gonzales vs. Raich that, under the commerce clause, the federal government has the power to regulate cannabis use and enforce the CSA, despite state marijuana laws. This past June, however, San Diego County attempted to sue California for violating federal drug laws, but saw its lawsuit turned down by the Supreme Court. While this no-decision might be taken as a sign of the Court shifting its opinion on state marijuana laws, UCLA professor Mark Kleiman warns not to conclude too much from the ruling. As he explained to the HPR, “my understanding is that the Court ruled that federal law trumps state law; the counties are creatures of the states, and can’t sue their parents. No contradiction there.” As Mirken put it, the courts have sought an “awkward middle ground” between federal and state power. With Obama distancing the federal government from the issue, however, and the Court reluctant to involve itself in the dispute, it seems that the shift of power to the states will continue.
States On Top… For Now
Without fear of DEA raids or county lawsuits, medicinal cannabis dispensaries in states that permit them can operate freely under their respective state laws. In an interview with the HPR, University of Maryland professor Peter Reuter explained that “the federal government realized it doesn’t have much control on the issue,” meaning that states may, by default, become the centers of drug policy. The federalist conflict has thus subsided for now, and with Washington’s attention elsewhere, drug policy is positioned to escape the national spotlight, facilitating clearer debates at the state level. And although the future of American drug policy is unclear, it will almost certainly be shaped not by the White House, the DEA, or the Supreme Court, but by state legislatures and town halls across America.
