Some tiny creature, mad with wrath,

Is coming nearer on the path.

--Edward Gorey

Location: Pittsburgh, Pennsylvania, U.S. Outlying Islands

Writer, lawyer, cyclist, rock climber, wanderer of dark residential streets, friend.

Sunday, March 06, 2005

The Next Battleground in the West Coast's War on the War on Drugs

Yesterday, the New York Times, following on the murder of four of Canada's mounted police who got a little too close to a marijuana operation, reported on the increase in marijuana trafficking along the western half of the United States border with Canada. British Columbia is the new black in pot growing, it turns out, with its signature "B.C. bud" grown to such potency that it commands upwards of three times the wholesale price Americans pay for Mexican counterparts and is avidly sought by afficianadi. The consequence, the article discusses, is the increasing intensity of all the things that come with prohibition: smuggling, other crime, and violence. And they say people never learn.

I found this article especially intriguing because, just a day earlier, I discovered at DrugWarRant an article revealing that my peers in the Kings County Bar Association, which serves the greater Seattle metroplex, adopted a drug policy resolution that flouts the neo-prohibition cant of the Bush administration's draconian approach to enforcement of the Controlled Substances Act. Regular readers will recall that I have written on this topic in the past, first in connection with the administration's effort to preempt Oregon's referendum-adopted Death With Dignity Act, and then again in connection with Raich v. Gonzalez, conerning the legality of private cultivation of marijuana for personal use in conformity with a doctor's recommendation.

The resolution is nothing short of astonishing in its incisiveness and scope. I could go on at length about the Resolution, but I'll focus on what I find to be its most intriguing aspect. It's essentially a commonplace in the reality-based community that all drugs are not created equal, and that criminalizing them all equally, and focusing on incarceration over treatment, has failed to solve the problem, as evidenced by the embarrassingly high rate of incarceration in this country -- higher than that of any other "civilized" nation. Accordingly, I'll stay away from these topics, handled well by the KCBA and summarized effectively by DWR. Instead, I'll focus on the KCBA's treatment of the underlying federalism critical to the resolution, which posits a state-driven path out from under federal preemption.

Relevant to my prior discussions, the KCBA describes the basic understanding of the CSA's power over the states:

The federal Controlled Substances Act is grounded in federal commerce power and states explicitly that any state law that is in “positive conflict” with the Act is preempted by federal law. The Act includes the statement from Congress that drug abuse is a “national” problem requiring federal control. In 2005 the decision in a California medical marijuana case currently before the U.S. Supreme Court, where two patients permitted under state law to use marijuana either grow their own or are given free supplies, which constitutes entirely non-commercial, intrastate activity, may push federal commerce power to its furthest limit yet.

Next, the KCBA sets out the basis of its belief that Washington state may have the power to opt out of the federal CSA:

Through enactment of the state-level Uniform Controlled Substances Act, Washington and the other states have voluntarily integrated their drug control laws into the federal scheme of drug prohibition, exercising their concurrent commerce power. It is arguable that a state, therefore, could also voluntarily diverge from the federal scheme. Whether Washington or any other state could now promulgate its own regulatory system for controlling the production and distribution of those psychoactive substances that are currently prohibited under federal law is a critical open question.

Thus, the argument:

States still retain the inherent power, independent of any congressional legislation or statement that drug abuse is a “national problem,” to protect their own citizens by controlling drugs and combating drug abuse locally, in view of the dangerous nature and injurious effects of unregulated drug use. According to this traditional view, any federal challenge to Washington State's new regulatory system for psychoactive substances must yield to the state's legitimate exercise of its police powers, which would have taken place through the state’s own political process, whether through legislative action and/or the passage of ballot initiatives.

The KCBA goes on to present three ways it might slide under, or otherwise push back against, the preemptive effect of the federal CSA. First, the KCBA notes that federal commerce clause power, which animates the CSA, permits the federal government to preempt state regulatory schemes that interfere with the federal scheme, but does not permit the federal government to preempt a state that is acting as a "market participant." For example, Pennsylvania is a market participant in alcohol sales; one can only buy liquor and wine at so-called "state stores," which are just what they sound like. The KCBA appears to suggest that Washington might involve itself in the market for various drugs that are currently illegal under federal law, and thereby preclude the federal government from interfering with its activity.

Next, the KCBA suggests the same tack as that being taken in Raich, which may or may not succeed before the Supreme Court. Specifically, the KCBA argues that the practice of medicine has historically been the province of state regulation, as a function of the state's "police power" to see to the "health, safety, and welfare" of its citizenry. Thus, the KCBA argues that if the consequence of a sweeping review of Washington state's approach to controlled substances were, for example, the legalization of marijuana for medical use, then it would fall outside the traditionally understood ambit of federal power due to its clinical aspects. Whether Raich will conclusively answer this question remains to be seen.

Finally, the KCBA observes that, because the federal government cannot as a matter of law "commandeer" state resources in enforcement of federal law, Washington might refuse to enforce federal drug laws in favor of its own, much as some states did during alcohol prohibition. Of course, it acknowledges, with the "power of the purse" Congress can punish Washington state for basically any reason, and KCBA acknowledges the risk of losing federal funding following a rejection of the federal CSA or underlying regulatory scheme. Still, this is a sober document acknowledging a serious policy problem.

I expect the KCBA is left, in virtue of the tendency of coastal lawyers generally and especially in a place like Seattle I suspect this is true. (As though the document doesn't confirm this in itself.) But recognizing the fallacies at work in the war on drugs, which takes nothing more than looking broadly at its consequences, warrants nothing less, regardless of ideology. The KCBA was careful to emphasize that the resolution, ultimately nothing more than a group opinion, does not call for legalization of any kind. It merely seeks to propose that Washington State, should it choose, might opt out of the Unfirom Controlled Substances Act and go its own way -- and that were it to do so, it might have an effective argument against the federal backlash that would almost certainly follow.

The viability's of the KCBA's ideas will be to some extent decided by Raich, but to what extent depends on the sweep of the Court's opinion. More to the point, were Raich et alia to prevail, then the KCBA's commerce clause argument would still have legs, at least with regard to market participant option. If, on the other hand, Raich is decided for the government, it's hard to see anything but that the legs are cut out from under any state interested in the KCBA's theories. For Raich to hold that the government has the best of the law, it will have to vindicate, as the KCBA notes in the excerpt above, a reading of the commerce clause broader than anyone that has gone before it, one very likely undermining or discarding outright the Court's decision in Lopez and Morrison. It's hard to see how anything a state might do, in the face of such a holding, that might take it out of the new, broader conception of the commerce clause. Bear in mind, Raich asks only whether a patient might grow his own marijuana to smoke under a doctor's guidance. The KCBA, however, is talking about a much more market-relevant move than the narrow one involved in Raich, so it would seem to become an a fortiori case following a pro-federal-regulation ruling in the California case.

A side note on this discussion is that it found yet more resonance in an article I came across today: Franklin Foer's "The Joy of Federalism," which appeared today in the New York Times Book Review. In this piece, Foer sets out to explain that increasing enthusiasm for federalism, for devolving federal power to the states, tends to find a home with different parties at different historical epochs, often with the party that's on the outs, currently the democrats.

In actuality, the states and federal government aren't cut-throat competitors but codependents, with state governments living off federal money and implementing federal programs. Rather, ''states' rights'' can be seen as a subgenre of political rhetoric, part of what the historian Michael Kazin calls the ''populist persuasion.'' And like so much of the language of populism, it proves hollow once its adherents obtain power.

In the KCBA resolution, we see further evidence that the left is making lemonade out of the federalism lemons doled out by the Rehnquist Court. And now suddenly in power, the right is stuck between the contrary imperatives of the ideological tenets it road into power and its desire to consolidate the power so gained. We also see that smart people are starting to speak out in various ways against the excesses of the war on drugs, which has accomplished little beyond crowding our prisons with nonviolent offenders.

Evidently, the resolution, seen by people close to it as an opening salvo in a long-term effort, has been well-received. Links and commentary on the follow up to the release of the resolution are available here.


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