Federalism and Drug Control
O'Hear, Michael M., Vanderbilt Law Review
Federalism issues have been neglected in the scholarship on drug control policy. This Article addresses both empirical and normative questions relating to federal-state-local relations in the "war on drugs." Contrary to common views of federal domination and national uniformity, drug control policy actually varies considerably from state to state. State diversity has increased since the mid1990s, when drug reformers began to use the ballot initiative to change state laws. While the federal government has contested these reforms, it has not sought to use its preemption powers to enforce federal preferences.
The Article employs public choice models to explain the current federal role, giving particular attention to the unusual degree of "in-kind" assistance given by federal law enforcement officials to local police agencies. While such in-kind assistance helps to decentralize drug policy making and reduce agency costs, it also undercuts legislative control and public accountability.
Leading theoretical models of federalism support the ideal of decentralized decision making in drug policy. Decentralization encourages policy innovation and enhances overall citizen satisfaction. While prior commentators have not fully appreciated the present degree of decentralization in drug policy, federal-state-local relations are nonetheless in need of reform, particularly to enhance legislative control and public accountability. Accordingly, the Article proposes reforms that are intended to reduce the federal distortion of drug policy debates at the state and local level, subject federal drug enforcement decisions to a greater degree of local political control, and increase the accountability of local law enforcement to local political institutions.
The American "war on drugs" has given rise to a voluminous body of scholarly literature.1 Commentators have addressed such important topics as the legality of particular drug enforcement practices,2 the effects of the drug war on families3 and minority communities,4 the "rebellion" of skeptical judges and prosecutors,5 and, more fundamentally, the relative merits of punishment, treatment, and legalization.6
Comparatively little work has been done, however, on what would seem a threshold question of utmost importance: which level of government-federal, state, or local-ought to have primacy in making and enforcing drug control policy? Which should have the authority to choose, for instance, whether punishment or treatment of drug users will be emphasized in a particular locale? And what role should the other levels of government play in implementing such a choice?
Within the otherwise abundant drug policy literature, sustained treatments of federal-state-local relations are rare and increasingly dated.7 More than a decade ago, two distinguished commentators offered a critical observation that might apply equally well today: "[L]ittle attention has been paid to level-of-government issues in current drug policy discussions, and the allocations of responsibilities that take place seem haphazardly determined."8 The purpose of this Article is to address these neglected federalism issues in drug policy. A number of recent developments lend a new urgency to sorting out the current "haphazard" allocation of responsibilities. Not only has the Supreme Court revived the specter of constitutional constraints on federal regulatory power,9 but several states have adopted new drug laws that deviate markedly from enforcement oriented federal norms.10 The resulting federal-state conflicts threaten the integrity of national drug policies, generate unnecessary public confusion, and present a risk of real injustice to individuals caught in the middle.
Consider, for instance, the case of Ed Rosenthal. The federal government brought marijuana cultivation charges against Rosenthal in early 2003.11 Rosenthal was, in fact, authorized by the City of Oakland to distribute marijuana for medicinal purposes pursuant to California state law. …