ALTERED STATES' RIGHTS

Making the Case to Legalize Drugs in Washington State

"States' rights" has always been anathema to liberals--a code word for the
Southern racism that embraced slavery, and later segregation. Nowadays,
however, in an era when Red America controls the federal government and
pushes things like a national ban on gay marriage, progressives are
embracing states' rights: the founding fathers' idea of Federalism, in
which states cede a few key powers to D.C. while maintaining robust
sovereignty themselves.

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."