Federal War on Drugs is unconstitutional, and states have authority to challenge it

Photo credit: Benjamin Pecka

Attorney General Jeff Sessions and Press Secretary Sean Spicer signaled that there could be greater enforcement of federal drug laws in states that have legalized marijuana under the Trump administration.

Taking these actions would be a reversal of statements made by President Donald Trump during the campaign trail. They would also reverse sensible policies adopted by the previous administration and sacrifice a core conservative principle.

Drug regulation and domestic law enforcement are not powers that belong to the federal government. They are powers that belong to the states.

The Tenth Amendment says that the federal government does not have authority over matters not explicitly detailed in the Constitution and any power not defined is deferred to the states.

States’ rights are a founding principle of the United States and also the conservative belief in limited government. The Constitution doesn’t discuss controlled substances, minus the failed prohibition on alcohol, so without the states’ authority the matter falls to the court system when issues arise. However, most cases revolve around Fourth Amendment rights to protection from illegal search and seizure, not the assertion of states’ rights.

For the last several decades, politicians tossed aside these civil liberties to declare an aggressive war intended to incarcerate people for drug use and possession. Political leaders appear tough on the issues that most agree are negative influences on society. Private prison interests also contribute to re-election campaigns and lobby for federal policies that benefit their industry.

In short, it’s a strategy politicians employ to keep up appearances and accumulate the money necessary to keep their jobs. Nearly every administration since Nixon exploited these interests to their advantage, and at the expense of their constituents’ rights to safety and security from an oppressive state. The Supreme Court consistently justifies the actions of police, even in cases of clear rights violations, when it comes to drugs and crime.

Obama rightly recognized that the War on Drugs is poor policy and failed to take actions against states that legalized marijuana, unlike his predecessors. Domestic police forces are encouraged through financial incentives to arrest and prosecute violators of federal drug laws, which leads them to disproportionately target low-level offenders.

The most convenient targets are black and minority communities because they generally don’t have the resources to defend themselves against the system. Routinely deploying violent no-knock raids on the homes of non-violent drug offenders in these neighborhoods cultivates a culture of fear that leads to tragic conflicts with innocent civilians and police.

No evidence exists that this tough stance positively benefits society and it’s clearly doing great harm to specific communities. This agenda should no longer be tolerated by the states because a human rights violation sanctioned by the federal government continues to escalate unabated.

Trump himself hasn’t explicitly taken an official position since the election. However, Sessions makes clear that he doesn’t want to see widespread use of marijuana, claiming that it creates violence.

Nebraska’s attorney general met with Sessions on Feb. 27 because he is concerned about legal marijuana coming into the state from Colorado. This meeting and the statement from Spicer on Feb. 23 that federal enforcement will potentially increase indicates that this administration will indeed revert to aggressive drug policies.

Sessions subsequently admitted that marijuana was “slightly less awful” than heroin in a prepared statement made on Mar. 15, which contradicts these previous statements and creates ambiguity for which approach is pursued. However, it does seem likely that enforcement will at least escalate in states that haven’t legalized it.

Federal drug prohibition is disastrous policy and the Constitution gives states the authority to create mechanisms that sensibly regulate marijuana. There are also good examples, like Portugal, with tremendous results reducing drug abuse with systems of legalization combined with community support.

If the Trump administration interferes with legalization or pursues increased enforcement of federal policies, the states should assert their rights and issue challenge in federal court. Big Brother needs to stay out of the way and allow state governments to work for their constituents.

If the states are unwilling to do their job, it is up the people to create pressure and force action.

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