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States’ Rights and the War on Drugs

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On February 22, a joint letter was issued by the Civil Rights Division of the Department of Justice and the Office for Civil Rights of the Department of Education rejecting the Obama administration’s position that federal nondiscrimination laws require public schools to allow transgender students to use the bathrooms of their choice.

In May of last year, the Obama administration issued a “Dear Colleague” directive in response to “an increasing number of questions from parents, teachers, principals, and school superintendents about civil rights protections for transgender students.” The directive stated that the prohibition against sex discrimination in Title IX of the Education Amendments of 1972 and its implementing regulations “encompasses discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status.”

The Trump administration’s joint letter states that “the Departments believe that, in this context, there must be due regard for the primary role of the States and local school districts in establishing educational policy.” White House press secretary Sean Spicer commented, “The president has made it clear throughout the campaign that he’s a firm believer in states’ rights and that certain issues like this are not best dealt with at the federal level.”

But just one day later, on February 23, the Trump administration rejected a states’ rights approach on the issue of marijuana, a departure from some things the president had said on the campaign trail.

Speaking at a White House press briefing, Spicer said that he expects states to be subject to “greater enforcement” of federal laws against marijuana use.” While President Trump “understands the pain and suffering that many people go through who are facing, especially, terminal diseases, and the comfort that some of these drugs, including medical marijuana, can bring to them,” the president sees “a big difference” between use of marijuana for medical purposes and for recreational purposes. Spicer also said that a state’s allowance of marijuana for recreational use “is something the Department of Justice, I think, will be further looking into.”

The new head of the Justice Department, former Sen. Jeff Sessions, is a noted opponent of the legalization of marijuana. In his Senate confirmation hearings, he acknowledged that “disrupting states’ marijuana markets by enforcing federal marijuana laws could create a strain on federal resources,” but also said that he “won’t commit to never enforcing the law.”

Kevin Sabet, head of the anti-marijuana group Smart Approaches to Marijuana, chimed in: “The current situation is unsustainable. This isn’t an issue about states’ rights; it’s an issue of public health and safety for communities.”

Democratic officials in states where recreational marijuana use is legal have suddenly embraced the concept of states’ rights. Although half of the states have legalized the use of medical marijuana, only seven states (Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, Washington) and the District of Columbia have legalized marijuana for recreational use.

Jay Inslee, the Democratic governor of Washington, and Bob Ferguson, another Democrat, the state’s attorney general, sent a letter last week to Attorney General Sessions “asking to discuss the issue and laying out the state’s arguments for keeping its regulated market in place.” Ferguson, who has said that he and the governor “will resist any efforts to thwart the will of the voters in Washington,” has also requested a meeting with Sessions “about his approach to legal, regulated marijuana.”

Democrat John Hickenlooper, the governor of Colorado, invoked the concept of states’ rights on a recent appearance on NBC’s Meet the Press when he was asked “if Attorney General Jeff Sessions might enforce federal law against the recreational use of marijuana.” Speaking of the state constitutional amendment allowing the recreational use of marijuana that Colorado voters approved in 2012, Hickenlooper said, “It’s in our constitution. I took a solemn oath to support our constitution. So, I am — and it’s interesting, it’s the sovereignty — the states have a sovereignty just like the Indian tribes, just like the federal government does.” The governor went on to say that it is not a “clear-cut case” that the federal government could “stop” the recreational drug industry in Colorado.

The principle of states’ rights embodied in the Tenth Amendment is an important one when it comes to the drug war.

The United States was set up as a federal system of government where the states, through the Constitution, granted a limited number of powers to a central government — not the other way around. As James Madison succinctly explained in Federalist No. 45,

The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will for the most part, be connected. The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the State.

But as this language did not appear in the text of the Constitution, some urged that a Bill of Rights be added to the Constitution that included such a distinction.

Our third president, Thomas Jefferson, in a letter to Joseph Priestley dated June 19, 1802, regarding his role in planning and establishing the Constitution, wrote,

I was in Europe when the constitution was planned & established, and never saw it till after it was established. on receiving it I wrote strongly to mr Madison urging the want of provision for the freedom of religion, freedom of the press, trial by jury, habeas corpus, the substitution of militia for a standing army, and an express reservation to the states of all rights not specifically granted to the union. he accordingly moved in the first session of Congress for these Amendments which were agreed to & ratified by the states as they now stand. this is all the hand I had in what related to the Constitution.

That is why we have the Tenth Amendment to the Constitution: “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.”

The federal government considers the growing, distributing, buying, selling, possessing, or smoking of marijuana to be a crime. It makes no distinction between the medical and recreational use of marijuana. It classifies marijuana as a Schedule I controlled substance with a high potential for abuse, no currently accepted medial use, and a lack of accepted safety for use under medical supervision. The Supreme Court has ruled that the federal government has the authority to prohibit marijuana possession and use for any and all purposes.

There is just one problem. There is nothing in the Constitution that gives the federal government the authority to have a Controlled Substances Act, a Drug Enforcement Agency, a National Drug Control Strategy, a drug czar, or an Office of National Drug Control Policy. There is nothing in the Constitution that gives the federal government the authority to prohibit or regulate marijuana or to wage war on drugs.

If we are to have any of those things, it is on the state level that they must be instituted and funded.

The libertarian position is that neither the federal government nor the state governments should do any of those things. But given that we have the Constitution, the Tenth Amendment, and the principles of federalism and states’ rights, it is only on the state level that libertarians should have to be making the case for drug freedom.

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