IS OBAMA SERIOUS ABOUT 'STATES' RIGHTS'?

There was a time when the term "states' rights" stood for trampling
on the rights of individuals. Many states asserted during the great
civil rights battles of the 20th century that they had the right to
prevent some citizens from voting, eating in the restaurants of
their choice, drinking from public water fountains or sitting where
they pleased on buses and trains.

But issues of states' rights were essentially turned on their head
by a U.S. Supreme Court bent on restricting some items (like medical
marijuana, OK'd in 1996 by California voters) and by the former
George W. Bush administration, which was willing to claim almost
anything to further its agenda of favoring big business over
consumers and the environment.

That began to change after Barack Obama became the 44th president.
For one thing, despite a few raids early in Obama's term, his
attorney general, Eric Holder, has now made it clear he will no
longer prosecute medical marijuana dispensaries operating according
to California's 1990s-era law.

But other signals indicate the Supreme Court remains a states'
rights opponent.

The most prominent of those came in a decision involving the U.S.
Navy and the dolphins and gray whales that migrate annually along
the California coast. The Navy and the marine mammals
generally coexist happily, but not in the strait between
San Clemente and Santa Catalina islands off the California coastline.

The Navy uses that strait to practice submarine detection because it
boasts currents and other conditions similar to those in the Strait
of Hormuz, the strategic entrance to the Persian Gulf. Trouble is,
environmental groups say naval midfrequency active sonar has killed
and injured whales and dolphins by interfering with their own
sonarlike communications.

The state Coastal Commission and several private wildlife protection
organizations sued last year to prevent the Navy from conducting
exercises in the strait at times when marine mammals are near. U.S.
District Judge Florence Marie Cooper went aboard several naval
vessels to observe maneuvers and later found in favor of the whales
and the Coastal Commission, instructing the Navy to shut down its
sonar when within 2,200 yards of whales or dolphins.

The Navy appealed immediately to then-President Bush, who responded
with the first and so far only presidential order exempting military
maneuvers from environmental rules. The Natural Resources Defense
Council and others took the case to the U.S. Supreme Court, which
held by a one-vote margin that the Navy can do as it likes and never
mind the state or the animals.

The ruling implies that even with Bush long gone, and with Obama
reversing or about to overturn several Bush stances - including his
refusal to allow California to regulate carbon dioxide emissions
from cars and trucks - the states' rights battle will continue.

The biggest change so far is Holder's indication that the long
federal campaign to harass or shut down medical marijuana clinics
and cooperatives in California is over. A profusion of clinics
sprang up after passage of Proposition 215, which allows use
of medipot with a doctor's recommendation. Some of the clinics and
co-ops have long been suspected of selling pot to anyone, not just
those with notes from doctors. They also are accused of accepting
almost any piece of paper as a recommendation, without bothering to
check authenticity. Now, Holder says only those suspected of such
wrongs will be prosecuted.

Under both Bush and his Democratic predecessor, Bill Clinton, raids
were frequent on clinics and growers who maintained they supply only
legitimate patients. The justification always was that federal law
banning marijuana use takes precedence over any state law - even
though more than a dozen other states have voted to legalize medipot
since the California vote.

But despite Obama's hands-off medipot policy, the anti-states'
rights Supreme Court majority remains. It's a majority that has
insisted the federal government can override state decisions on
siting of liquefied gas terminals, controlling pollution at
ports and many other items.

So long as that majority survives, one principle long upheld by
California's highest state court will be in jeopardy: that one that
holds that while states may not grant their citizens (or animals, in
some cases) fewer rights than guaranteed under the federal
Constitution, they can grant more rights.

This was the principle at work last spring when the state Supreme
Court legalized same-sex marriage, a decision narrowly reversed
months later by the voters via Proposition 8 and now back before the
same court.

It's a principle that has furthered the fight against smog, led to
legalized abortion here long before the Roe v. Wade decision did it
nationally and helped equalize revenue among school districts, among
many important steps.

Bush eroded that principle, with consistent backing by the federal justices.

Obama has not yet shown he can reverse that tide.

Thomas Elias is a political columnist whose commentary appears in
newspapers throughout California.