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Federalism and Drug Control

103 Pages Posted: 25 May 2014  

Michael M. O'Hear

Marquette University - Law School

Date Written: 2004

Abstract

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 mid-1990s, 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 policymaking 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.

Keywords: drug policy, drug control, federalism, states, local government, decentralization

Suggested Citation

O'Hear, Michael M., Federalism and Drug Control (2004). Vanderbilt Law Review, Vol. 57, No. 3, 2004; Marquette Law School Legal Studies Paper No. 14-18. Available at SSRN: https://ssrn.com/abstract=2440830

Michael O'Hear (Contact Author)

Marquette University - Law School ( email )

Sensenbrenner Hall
P.O. Box 1881
Milwaukee, WI 53201
United States
414-288-3587 (Phone)
414-288-5914 (Fax)

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