Academic journal article Harvard Law Review

Cooking Up Solutions to a Cooked Up Menace: Responses to Methamphetamine in a Federal System

Academic journal article Harvard Law Review

Cooking Up Solutions to a Cooked Up Menace: Responses to Methamphetamine in a Federal System

Article excerpt

It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.

--Justice Brandeis (1)

[M]any states in the Midwest, West and Southwest have been working hard to reduce the supply and demand of the methamphetamine epidemic. But meth has brought another unique problem to our states--highly toxic labs that are often abandoned and exposed to our communities.... We cannot risk exposing these dangerous meth labs to our communities.

--Senator Tom Harkin (2)

When Justice Brandeis touted the virtue of the states serving as laboratories, he invoked the vision of enterprising citizens churning out novel public policies. Yet today, enterprising citizens in numerous states are creating laboratories to churn out something more potent: methamphetamine. The efforts that states and the federal government have made over the past decade to control methamphetamine confirm the continued value of Justice Brandeis's call for pluralistic, state-based policy experimentation, as long as it supplements--rather than replaces--an appropriate federal response.

Methamphetamine is receiving a significant amount of attention at the moment: leading national politicians have labeled it America's top drug problem, (3) local government officials have reported it as their "greatest drug threat," (4) and the national media has highlighted it. (5) Such attention has resulted in significant policy action, including the recent adoption of dozens of new state laws and the federal Combat Methamphetamine Epidemic Act of 2005 (6) (CMEA).

This increasing methamphetamine problem has come in the midst of renewed emphasis on federalism, both in general and in the context of the federal government's fight against narcotics. (7) Based on the experience with fighting the methamphetamine problem, which shows advantages to both federal control and state experimentation, the ideal response to the problem would assign leadership neither exclusively to the federal government nor exclusively to the states. Instead, a blended approach is needed in which the federal government imposes a set of minimum uniform initiatives and then allows the states to supplement them experimentally, with successful results then folded into the federal regulatory baseline. Such an approach usefully deviates from the one that is generally taken in the federalism debate over drug laws and that poses a binary question of whether federal or state control is superior. Although Congress has codified just such a blended model for federal-state relations in combating narcotics generally, this scheme is effective only if the federal government sets its baseline regulation so as to leave states room to experiment.

To determine the ideal responses to methamphetamine, Part I of this Note opens by tracing the nature and growth of the methamphetamine problem. Part II then examines states' recent measures to arrest its use and production. The focus turns to the federal reaction in Part III. With the initiatives of each level of government established, Part IV compares their effectiveness and posits that experience suggests a model in which states supplement a baseline of federal laws. Finally, Part V considers whether this ideal federal-state balance is achievable in practice.


Although commonly characterized simply as the scourge of "the home-cooked menace," (8) the methamphetamine problem in contemporary American society actually combines two aspects: the drug's consumption and the drug's production.

A. Methamphetamine Consumption

Methamphetamine is a synthetically produced illegal drug that is prized by its users for producing intense highs that come on quickly and last for twelve hours or more. (9) In fact, methamphetamine--often popularly known as "speed," "crank," or "ice"--gives a longer-lasting high than does cocaine, and some claim that the drug has the potential to be the most dangerous one facing the nation. …

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