So, what's the latest group to make the case that states' rights should determine policy? Try the flaming liberals at the King County Bar Association (KCBA), who on March 3 will release a radical proposal urging Olympia to reform local drug laws. And by "reform," the KCBA means make certain drugs legal so they can be yanked off the street (a hotbed of violent crime and addiction) and placed in a tightly regulated state market. Regulation could allow for things like safe injection sites, be used to wean addicts off drugs, and sap a black market that gives kids access to drugs.
The mammoth proposal (www.kcba.org/druglaw/proposal.html)--which includes extensive academic research on the history of drug laws, conspiratorial details about the successful efforts of corporations like DuPont and Hearst to squelch hemp production in the 1930s, and dispiriting facts about the failed drug war--is anchored by a 16-page treatise titled "States' Rights: Toward a Federalist Drug Policy."
This states' rights manifesto is the KCBA's rejoinder to the inevitable question: How can Washington State get away with regulating (i.e., legalizing) drugs, like heroin and pot, that the federal government has outlawed under the Controlled Substances Act? It's also a direct challenge to the feds.
"[If our proposals are adopted] we would expect that the U.S. government would seek an injunction in federal court," Roger Goodman, director of the Drug Policy Project of the KCBA, says enthusiastically. Goodman's idea is to force a legal standoff that, he hopes, will eventually set the precedent for states to buck the feds' misguided "war on drugs" by giving states control over the production and distribution of drugs like pot.
The Constitution grants the federal government the right to regulate commerce, which is the cornerstone of the Controlled Substances Act. The KCBA report, which Goodman put together, outlines a couple of states' rights arguments that could be used to trump that authority. The report points out accurately that states have exclusive rights to protect the health, welfare, and safety of their citizens, which includes regulating the practice of medicine. "Recent case law has limited federal authority to meddle in the states' regulation of medical practice," the report says, "particularly limiting the use of the federal Controlled Substances Act to override a state's decisions." This is a reference to a 2002 decision in Oregon v. Ashcroft when the Ninth Circuit Court of Appeals stopped the feds from using drug law to upend Oregon's Death with Dignity Act where drugs are used in assisted suicide.
The KCBA also argues that when a state becomes a "market participant" by running drug-distribution outlets, the activity would be beyond the scope of federal commerce power. "[C]annabis availability for adults through exclusive state-owned outlets, for instance, would render Washington immune to federal intervention…" the KCBA's states' rights manifesto argues.
Obviously, these legal arguments are just that: arguments. The KCBA readily admits as much. "Whether Washington could now promulgate its own regulatory system… of substances that are currently prohibited under federal law is a critical open question," the report allows. However, raising that question is an important first step in itself. According to Goodman: "That's always part of the reform process."