Federalism, Policy Learning, and Local Innovation in Public Health: The Case of the Supervised Injection Facility

Abstract

Evidence from international evaluations suggests that safe injection facilities (SIFs) may represent a medically effective and economically efficient strategy for reducing the incidence and harms of injection drug use among the chronically homeless and otherwise marginalized people. The success of such facilities in other countries has amplified calls for their introduction in the United States where injection drug use among the most difficult to reach groups continues to be an intractable source of numerous individual and public health harms as well as a major financial burden for certain municipalities.

In recognition of the fact that even evidence-based health interventions may fall under the ambit of laws targeting drugs and drug users, we analyzed the legal environment for publicly authorized SIFs in the United States. Our conclusions suggest that states and some municipalities have the power to authorize SIFs under their longstanding powers to protect the public’s health, but that federal authorities could still interfere with these facilities under the possession and “Crack House Statute” provisions of the Controlled Substances Act (CSA).

We analyze the applicability of these provisions and discuss possible defenses rooted in statutory interpretation, preemption and the Commerce Clause. We conclude that plausible legal arguments exist that those operating an SIF should not (and perhaps can not) be convicted under the auspices of the CSA. However, state- or locally-authorized SIFs can proceed free of legal uncertainty only if federal authorities explicitly authorize them or decide not to interfere. Given legal uncertainty and the similar experience with syringe exchange programs, we recommend a process of sustained health research, strategic advocacy, and political deliberation.

Keywords: IDU, injection, police power, harm reduction