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The Independent Institute
Commentary

States Thumb Their Noses at the Drug War


Colorado and Washington voters legalized recreational marijuana and now Obama must decide: will he be remembered as the president who let states pursue drug reform, or who desperately enforced an unpopular and futile policy against the will of the people?

The Drug Enforcement Administration has about six thousand agents and limited resources. Without state cooperation, the drug war is hopeless. As more states legalize pot for general adult use, the federal government’s headaches will only worsen. For fifteen years, three administrations have failed to stop medical marijuana, although not for lack of trying.

When campaigning in 2008, Obama consistently vowed to stop the medical pot raids. “Obama supports the rights of states and local governments to make this choice,” his campaign spokesman Ben Labolt said during the primary season. In his first year, President Obama made excuses for the continuing raids, reiterating his promise. In four years, the administration has now conducted four times as many raids as Bush’s administration did in twice the time.

Obama was not the first to renege. George W. Bush said that he would stop the raids started under Clinton. “I believe each state can choose,” he told Seattle voters in October 1999.

The tension between national drug warriors and states seeking liberalization raises interesting questions about the discourse of federalism. Typically conservatives talk about a restrained federal government, while liberals stress national policy cohesion.

This dynamic played out in the Supreme Court’s decision in Gonzales v. Raich (2005). All the liberal justices upheld federal policy over California’s medical marijuana law. Staunch conservative Justice Antonin Scalia joined them and made a drug war exception to his states’ rights support. The three finding in favor of California’s patients were conservatives. Justice Clarence Thomas, arguably the most conservative justice, offered a stirring dissent: “If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption... then Congress’ Article I powers—as expanded by the Necessary and Proper Clause—have no meaningful limits.”

Raich specifically concerned states’ rights vs. federal prerogatives. The Tenth Amendment declares “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Anything the Constitution does not specifically empower the federal government to do remains the domain of the states and individuals. Thomas complained that the Raich decision gave no “hint of what aspect of American life is reserved to the States,” and that the Court was “willing neither to enforce limits on federal power, nor to declare the Tenth Amendment a dead letter.”

Progressives favoring an expansive federal role in society understandably oppose a principled legal argument against federal marijuana laws. If the feds cannot override state drug policy, what else can’t they do? Yet the political divide manifests differently in Congress. Rep. Diana Degette (D-CO) has introduced the Respect States’ and Citizens’ Rights Act of 2012 to allow states to legalize marijuana. Most cosponsors are Democrats. Last year, Ron Paul (R-TX) and Barney Frank (D-MA) proposed to end federal pot prohibition altogether and let states set policy. Only eighteen others in Congress joined them, with just one lone Republican.

Most congressional Democrats will also oppose such measures. While many liberals urge Obama to capitulate to states legalizing cannabis, this whole controversy raises questions about dominant liberal understandings of federal power.

Since California legalized medical pot in 1996, drug policy developments have put the lie to the federal government’s reputation as a bulwark of civil liberties, humanitarian rights, and rational policy. Whether Colorado and Washington outright defy the federal government—as the medical marijuana states have done—or Obama is forced to concede this ground, it is an embarrassment for national supremacy, the administration, and the DEA, and a triumph for the doctrine of nullification.

Liberals have long demonized nullification, largely because states’ rights popularly became associated with slavery and Jim Crow while the federal government was errantly credited with Civil Rights. Although “states’ rights” can simply mean limits on federal authority, more important matters are at stake. As Sheldon Richman notes, “Nullification should not be conflated with states’ rights. This issue is about the real rights of individuals, not the alleged rights of state governments.”

Throughout American history, nullification served to combat human rights abuses more than to perpetuate injustice. Jefferson and Madison crafted the Virginia and Kentucky Resolutions to nullify John Adams’s Alien and Sedition Acts and defend free speech. Before the Civil War, the federal government backed the Slave Power, particularly with its Fugitive Slave Law. State governments fought back with personal liberty laws, standing between federal officials and runaway slaves. For more on the civil libertarian legacy of nullification, see William Watkins, Reclaiming the American Revolution: The Kentucky and Virginia Resolutions and Their Legacy (Palgrave Macmillan: 2004) and Tom Woods, Nullification: How to Resist Federal Tyranny in the 21st Century (Regnery: 2010).

In modern America, state and local governments protect undocumented immigrants from federal deportation in “sanctuary cities.” In the last decade, state and local governments responded to the Patriot Act with resolutions of non-compliance, obstructed the Real ID Act by refusing to cooperate, and defied the authority of the TSA. Today, states stand up to the NDAA—Orwellian legislation empowering the president to indefinitely detain U.S. citizens without due process. Check out the Tenth Amendment Center for the newest developments.

Meanwhile, the nationalization of civil liberties has fallen short. In the 20th century, liberal federal judges began defending Bill of Rights protections against state governments, but this trend reversed by the 1980s. For example, between 1982 and 1991, the Supreme Court “heard argument in 30 Fourth Amendment cases involving narcotics,” noted Justice Stevens in his dissent in California v. Acevedo (1990). “All save two involved a search or seizure without a warrant or with a defective warrant. And, in all except three, the Court upheld the constitutionality of the search or seizure.”

On this trend, Michelle Alexander writes in The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New Press, 2010), “Virtually all constitutionally protected civil liberties have been undermined by the drug war. The Court has been busy in recent years ... upholding random searches and sweeps of public schools and students, permitting police to obtain search warrants based on an anonymous informant’ås tip, expanding the government’s wiretapping authority, legitimating the use of paid, unidentified informants by policy and prosecutors, approving the use of helicopter surveillance of homes without a warrant, and allowing the forfeiture of cash, homes, and other property based on unproven allegations of illegal drug activity” (p. 62). The states wage this drug war largely thanks to the federal government’s direction, financing, and arming, as Alexander explains.

Obama won in 2008 promising a different approach to drug policy. He then escalated the medical marijuana raids, sent Marines to Guatemala, beefed up the notorious Byrne drug task forces through stimulus spending, and with tiny exceptions continued to enforce a drug policy that has resulted in immense human tragedy, civil liberties violations, and tens of thousands deaths in Mexico.

This year, some hopefuls speculated that Obama would finally push for reform in a second term. Yet even if Obama does the right thing with respect to Colorado and Washington, we should remember that it was not the federal government that took the lead in scaling back this awful federal crusade. Individuals, voters, and local officials made it happen through non-compliance, civil disobedience, and nullification. Thank goodness, for it is about time someone took a stand against this nightmare.


Anthony Gregory is Research Fellow at The Independent Institute. His articles have appeared in the Christian Science Monitor, Bloomberg BusinessWeek, San Diego Union-Tribune, Portland Oregonian (AZ), Contra Costa Times, The Star (Chicago, IL), Washington Times, Salt Lake Tribune, Tallahassee Democrat, Albany (NY) Times Union, Raleigh News and Observer, Florida Today, and other newspapers.

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