In the polarized world of American politics, bipartisan support is hard to come by. So when the Development, Relief, and Education for Alien Minors (DREAM) Act came to the Senate floor in mid-September, one might have expected the bill to pass overwhelmingly. After all, the measure enjoyed support from both parties, the White House, and a clear majority of Americans. At a Sept. 21 press conference, Secretary of Education Arne Duncan declared, “It is no surprise that a common-sense law like the DREAM Act has always been supported by both Democrats and Republicans. There is no reason it shouldn’t receive that same bipartisan support now.”

Later that day, however, Senate Republicans blocked action on the DREAM Act by filibustering the defense authorization bill to which the legislation had been attached. Surprisingly, the bill’s recent failure is only the latest installment in a long history of defeat and disappointment. Despite the widespread, bipartisan popularity of the DREAM Act, the decade since it was originally proposed has been characterized by a baffling inability to harness its popularity and get the bill passed. The DREAM Act’s failure signifies the extent to which polarization and partisan wrangling in Congress have eroded the possibility of bipartisan achievements.

DREAM Act Basics

The DREAM Act, reintroduced in the Senate last year by Senators Richard Durbin (D-Ill.) and Richard Lugar (R-Ind.), would create a path to citizenship for young people who are undocumented immigrants. Dan Griswold, director of the Center for Trade Policy Studies at the Cato Institute, told the HPR that the DREAM Act is limited to “undocumented students who entered the United States at least five years before passage of the act and were under the age of 16 when they entered.” As introduced in the current Congress, the bill would require that the students have earned a high school diploma or its equivalent. After completing two years of college or military service, they could then apply for permanent legal status.

The DREAM Act would not instantly extend citizenship to all of those eligible to apply for it. In fact, of the 2.1 million undocumented youth eligible for applying under the DREAM Act, only an estimated 825,000 would likely attain citizenship due to the educational demands of the bill, according to a report by the Migration Policy Institute.

Public Support, But Not Enough Votes

With over a hundred cosponsors among outside organizations, the DREAM Act has a diverse coalition of supporters. An unlikely alliance of interest groups has endorsed the bill, including the AFL-CIO, the Episcopal Church, New York City Mayor Michael Bloomberg, and former Secretary of State Colin Powell. Public opinion likewise offers strong support. A June 2010 poll by the Opinion Research Corporation found that 70 percent of Americans support the DREAM Act, including 60 percent of prospective Republican voters.

The DREAM Act is also the only immigration reform legislation that the White House has endorsed. It enjoys nearly 40 cosponsors in the Senate and over 120 in the House, representing various states, ideologies, and backgrounds. In 2007, a similar bill received the vote of 11 Republican Senators, but failed to receive a filibuster-proof supermajority.

As Congress became hyper-politicized during the first two years of the Obama presidency, the DREAM Act suffered from an erosion of this bipartisan support. When Senate Majority Leader Harry Reid (D-Nev.) included the DREAM Act in the defense authorization bill in September, the bill failed the cloture vote 56-43 without garnering a single Republican in favor. Republican Senators Orrin Hatch and Bob Bennett, both of Utah, voted in favor of adding the DREAM Act to the defense authorization bill in 2007, but voted against the measure in the most recent bill. Likewise, Senator John McCain (R-Ariz.), who co-sponsored the DREAM Act in 2005, 2006, and 2007, voted against it in 2010.

Caught in the Crossfire

The DREAM Act now faces a substantial political challenge. The legislation occupies a tenuous middle ground: liberals accuse it of being too limited in scope and conservatives charge that it is too far-ranging. Kristen Williamson, a spokesperson for the Federation for American Immigration Reform, a conservative group, told the HPR that many Republicans view the DREAM Act as “amnesty disguised as an educational initiative.” Critics of the DREAM Act allege that the measure rewards lawbreaking and creates a greater incentive to defy immigration laws. With midterm elections on the horizon, Republicans also accuse congressional Democrats of capitalizing on the DREAM Act “to motivate Hispanic voters in the upcoming elections,” Williamson said.

On the other side of the aisle, some liberal Democrats believe that comprehensive immigration reform is still possible and oppose the DREAM Act’s piecemeal approach to reform. Marshall Fitz, director of immigration policy at the Center for American Progress, told the HPR, “The expectation that we will only get one shot at an immigration debate during a legislative session suggests that moving forward on a piece like DREAM means it is to the exclusion of other equally worthy pieces.”

But Margie McHugh, co-director of the National Center on Immigrant Integration Policy, criticized this position in an interview with the HPR. “How long can hopes for comprehensive immigration reform be used to block the DREAM Act?” she asked. “Should smaller pieces of legislation continue to be held hostage to an increasingly unlikely proposition?”

Dream Versus Reality

Democratic leaders promise to vote on the DREAM Act again in the 111^th Congress, but it seems unlikely that its supporters will overcome the 60-vote threshold needed to break a filibuster in the lame-duck session, before the new Republican senators come into town. The future of the DREAM Act depends, then, on the support of both the moderate Republicans who have supported the measure in the past and the Democrats who are holding out in hopes of passing comprehensive immigration reform.

Ultimately, the bill’s failure to pass should be no surprise, even with all the public support it has. As Fitz put it, expectations of passage stem from “the faulty premise that the legislative process is closely related to either the will of the majority or to rational policy-making. At best they are distant step-cousins.” In an increasingly gridlocked Washington, even middle-of-the-road, moderate measures are being politicized and pushed aside.

Kathy Lee ’13 is the Staff Director and John He ’13 is a Staff Writer.

The intellectual underpinnings of President Obama’s financial regulation reform.

With audacity and flourish, Time magazine on February 15^th, 1999 dubbed the trio of Robert Rubin, Alan Greenspan, and Lawrence Summers, “The Committee to Save the World.” Today, that cover reads like a joke – instead of saving the world, this trio, more than any other, helped to create the conditions that nearly destroyed it: the volatile mix of low interest rates, lax regulation, and esoteric financial instruments that nearly obliterated the banking sector in 2008 and then tanked the U.S. economy in the years since. Rubin, then the Treasury Secretary, Greenspan, then the Chairman of the Federal Reserve, and Lawrence Summers, the soon-to-be Treasury Secretary, were disciples of the economic ideology of the time. By the mid-90′s, economists in influential posts in the government, academia and wall street were assuring anyone who would listen that competition between self-interested firms could be “self-regulating” and, therefore, any government regulation would only create problems. As Harvard Business School Professor David Moss said in interview with the HPR, “there was a mindset which tended toward the extreme – that almost all regulation is bad regulation.” In this belief, of course, they were mistaken, as we now know. In the words of Greenspan, testifying before Congress in 2008, “Those of us who have looked to the self-interest of lending institutions to protect shareholders’ equity, myself included, are in a state of shocked disbelief…. The whole intellectual edifice [of risk-management in financial markets]…collapsed last summer.”

President Obama’s economic rescue team emerged from the wake of this collapse. Tasked with leading the financial relief effort was the new Treasury Secretary Timothy Geithner, the bureaucratic wunderkind who worked under Rubin and Summers in the Clinton administration. Summers continues to play an influential role, albeit one less public than that of Geithner, as the director of the National Economic Council. And returning to public service is former Fed Chairman Paul Volcker, now the chair of the newly formed Economic Recovery Advisory Board. To understand where we stand today we must first explore where these men stood (and in what offices they sat) before this crisis shook the prevailing economic faith. These men were the chief architects of the financial legislation that is making its way through Congress; to understand the nature of this reform, we must understand both where these men are coming from, and where they want us to go.

Clamor for Treasury Secretary Tim Geithner’s head began during the TARP bailouts and then reached a fever pitch by the week of the “AIG bonus scandal.” Protesters were following the Treasury Secretary everywhere; the online prediction site Intrade opened up betting markets about Geithner’s termination date. For a while, it seemed that the Obama administration had accomplished a feat considered unthinkable in today’s polarized Washington: unanimous dislike and anger. The Left decried the symbiotic relationship between Capitol Hill and Wall Street; the Right sounded the alarms about a socialist takeover of industries; and ordinary Americans looked to Geithner as a symbol of the hypocrisy of the moment, bailing out the industries that started the mess in the first place. But the anger obscured the bottom-line: the fix worked. The Obama administration effectively calmed financial markets, secured the major banks, and prevented total economic catastrophe, all at a lower cost than anyone thought possible. By resisting bank nationalization, Obama’s team kept to a policy of faith in private capital over government takeovers, ironically relieving the crisis by the same core economic ideology that caused it.

Despite their success, the flurry of actions carried out by Geithner, Summers, Paul Volcker, and Ben Bernanke leave the financial industry in uncharted waters. One thing, however, is clear: the financial bailout was implemented under a particular worldview advanced by individuals with nuanced and evolving ideological background. At their ideological core, Geithner and Summers subscribe to the tenets of free market capitalism — but with a twist. While they hold faith in the separation between public service and markets, their experiences in Washington have taught them the necessity of bold, decisive action by the government in preventing private financial collapse. This “activist conservatism,” with its unique public-private tenets and its reliance on both the powers of the government and the powers of the market, was at the core of our financial regulation reform efforts and will be, ultimately, the defining ideology of a new Wall Street.

Geithner

Understanding Geithner begins by identifying his deeply pragmatic perspective on markets. As the aide de camp to the likes of Rubin and Summers in the Treasury Department in the nineties, Geithner managed financial crises flaring up in places like Mexico and Thailand. His experiences with these cases and his observation of Japan’s “Lost Decade” provided the basis for his philosophy; he noted how the indecisiveness and timidity of the Japanese government resulted in the downward spiral of confidence and subsequent economic stagnation.

However, equally important is his professional maturation during the era that stressed the harmful effects of government regulation of financial markets. He worked in Washington when financial instruments such as derivatives and credit default swaps were wealth generating machines, and there was significant opposition to the notion of containing their potential. In advocating relatively loose restrictions on firms accepting bailout money and critiquing the notion of bank nationalization, Geithner expressed the idea that the government should avoid areas, such as price-setting and business management, best performed by private forces.

This belief in the power of the private sector explains Geithner’s response to the crisis. Contrary to the more interventionist solution proposed by critics like Joseph Stiglitz, the key aspect of Geithner’s plan was the bank stress test. Designed to evaluate the solvency of the nineteen largest financial institutions in the event of an economic downtown, the tests provided much needed information to investors, calming the pervasive anxiety and pessimism. As Geithner put it in an interview with Newsweek, “the stress tests this spring forced people to raise capital and have a more realistic sense of losses going forward. We’re going to have $175 billion of the $240 billion in TARP payments back by the end of next year.” His reaction to these difficult times reflects his fundamental philosophy that the government, while maintaining personal restraint and respect for the private market, must act swiftly and confidently times of urgent need.

Summers

Hailed as a wunderkind since his college days, Lawrence Summers is widely considered a brilliant economist and a skilled policy-maker. Yet his ideological position is tough to pin down. Obama has characterized him as a “champion of the middle class”; in 2007, he remarked to the New York Times, “I think the defining issue of our time is: Does the economic, social and political system work for the middle class? Because the system’s viability, its staying power and its health depend on how well it works for the middle class.” Yet those familiar with Summer’s tenure in the Clinton administration invariably point to his affinity for protecting Wall Street’s interests. In the Treasury Department in the late nineties, Summers led the opposition to federal management of risky trading instruments; he wrote that the recommendation for increased government regulation “has cast the shadow of regulatory uncertainty over an otherwise thriving market-raising risks for the stability and competitiveness of American derivative trading.” His statements are indicative of the philosophy that reigned in the nineties, the era which bred Geithner’s outlook too.

In April, Summers’ former advisee Bill Clinton admitted that he erred by following the advice to leave these complex financial instruments to their own devices. Summers defended his position as appropriate given the information available at the time, arguing that credit default swaps and the like seemed to pose little threat in their infancy. Although this plea of ignorance may appear disingenuous coming from an expert operating in an environment so familiar with banking interests, Summers’ statements reflect a sea change in the economic philosophy of the times. Admitting that his views change with the conditions at hand, just a decade after his adamant deregulatory remarks, Summers has taken an entirely opposite view on the financial devices that caused the economic meltdown. By urging banks to accept regulation for the sake of the American people, Summers shows that he has indeed learned from past mistakes, both his own and those of the private sector.

Geithner and the Public

The Geithner-Summers duo was a politically volatile choice for Obama. In trying to persuade the public that he would not exploit an economy in free fall by pushing an ideological agenda, the president choose a technocrat and a scholar, two eminently pragmatic men who nonetheless had checkered ideological pasts, distinct PR weaknesses, and would be forced to make extremely difficult political moves. To the public, the bailout punished the taxpayers not the bankers, and rewarded avarice and incompetence. Geithner has repeatedly said that he was more concerned with making the right moves than with pleasing the right people; as the media pounced on his plans, he stayed true to his principles. Public disapproval of his performance reached the point where the President himself had to write a memo expressing his confidence in his appointee. Geithner is no politician; he has poor rhetorical skills and is unskilled in framing his initiatives in politically correct terms. Unveiling the government’s plan of actions at a conference in February 2009, Geithner spectacularly underwhelmed the crowd of New York bankers, causing the stock market to plunged by nearly five percent. Investors received the impression that the Obama administration was incompetent, and rumors shot around that in the general public that he was everything from anti-business to outright socialist. But Obama chose Geithner for his talents as an implementer. Geithner cares little for popular soundbites or political expediency. In his mindset, he was appointed to solve the financial crisis, and his pragmatism carried him from premises to conclusions with no little fear of repudiation. Summing up this worldview in an interview with Newsweek, Geithner said that “the test is whether you have people willing to do the things that are deeply unpopular, deeply hard to understand, knowing that they’re necessary to do and better than the alternatives.” With this attitude, Geithner was unfazed by the politics of rescue and instead focused on applying his past experience to solve this crisis in the best way he knew how.

The Future

As both houses undertake efforts to reconcile their bill on financial sector reform, it’s clear that the policies going forward will bear the mark of the public-private ideology forged Geithner and his team. For instance, the bill would create the Financial Stability Oversight Council to facilitate the organizational restructuring of failing firms. It would also allow the Fed to demand that banks hold higher capital reserves to cushion possible asset devaluations. In addition, transactions of derivatives and other complex trading instruments will be made more transparent to openly expose potential risks.

Far from a government takeover, this bill creates a financial environment working under greater oversight from Washington yet still powered by the dynamics of the market. The tenets of reform are hardly radical; an amendment to force the breakup of the largest banks failed by a vote of 61 to 33 with stiff opposition from Summers and Geithner from within the administration. The bill is effectively moderate and reflects the economic worldview championed by the men who shaped the bailout. Looking forward, there will be a new regulatory climate overlooking a financial industry that operates under new rules. Geithner, Summers, and other influential members of the Obama economic team played a mighty role in shaping the nature of this reform; they deserve much credit for helping a reeling financial world regain its footing. So while the Time cover in 1999 appears foolish in retrospect, perhaps we can say that it was released a decade too early. While that committee certainly did not save the world in 1999, it seems that one of their ideological disciples just might do it now, ten years later.

Photo Credit: Wikimedia

case is a blow to democracy

The outcome of Citizens United vs. Federal Election Commission has rocked the political world by reframing the controversy over corporate influence in political campaigns. In the 5-4 ruling, a majority of the Supreme Court struck down provisions of the McCain–Feingold Act that forbade corporations and unions from directly supporting or opposing candidates for office. The decision leaves candidates more susceptible to corruption by tilting the balance of power in our democracy towards wealthy corporations and interest groups.

DIVERGENT INTERPRETATIONS

The majority opinion took a novel but somewhat expected approach to the monumental case, which saw its beginnings in the recent presidential campaign. In 2008, the Federal Election Commission banned the interest group Citizens United from airing its unflattering attack-documentary against Hillary Clinton on cable television, saying it violated campaign finance restrictions under the McCain–Feingold Act. Citizens United appealed the decision to the Supreme Court, which heard two sets of oral arguments in the case. By asserting the inalienability of free speech while also extending it in an unprecedented way to corporations and other associations, the Court employed both a strict enforcement of the First Amendment and a loose broadening of its application. Justice Anthony Kennedy, speaking for the majority, wrote, “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.” In effect, the court extended First Amendment protections to interest groups, completely overturning the restrictions permitted by the ruling in Austin vs. Michigan Chamber of Commerce in 1990. As John Samples of the Cato Institute explained to the HPR, “The Constitution doesn’t mention speakers,” only speech, and therefore distinctions between corporations and other speakers are impermissible. The McCain–Feingold law, according to Samples, restrained associations’ right to express their political views.

Dissenting justices, led by John Paul Stevens, emphasized their wariness about corporations’ influence on government. Stevens lambasted the majority’s “rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding,” and worried that the decision would “undermine the integrity of elected institutions across the Nation.” Drawing on over a century’s worth of statutory and constitutional law restricting the sort of influence that the majority has now allowed, the dissenters made a case for favoring the intent or principle behind the First Amendment over a literal interpretation. Harvard Law School professor Mark Tushnet told the HPR that “the dissenters argue that constitutional law should leave more room for policy judgments by Congress than the majority’s doctrinal framing allows.”

DEMOCRACY DERAILED

Regardless of the constitutional merits, it seems unquestionable that the decision will have a negative impact on politicians’ susceptibility to corruption, or at least what most of us would call corruption. Corporations, unions, and other interest groups, using their treasuries as threats, will have substantial leverage over representatives. Nevertheless, supporters of the decision, such as Samples, argue that “it is easy to exaggerate the practical effects of this decision” and that “[corporate] speech is not the same thing as results or power.” Harvard Kennedy School professor Alexander Keyssar, drawing on recent history, countered that “anyone who’s witnessed elections in the past ten years will see the influence of money in elections. Big Pharma doesn’t donate to campaigns out of altruism.” This influence will expand at the expense of the millions of individuals lacking the means to conglomerate their funds to affect the electoral process. Brookings Institute senior fellow Thomas Mann warned the HPR that “the potential dangers to American democracy are great.”

THE FUTURE FOR REFORM

Cautiously working within the confines of the Court’s recent ruling, leaders on Capitol Hill are scrambling to mitigate the decision’s effects. While a handful of senators, including John Kerry (D-MA), have gone so far as to endorse a constitutional amendment to restrict corporate influence, Keyssar said that its success is “unlikely” and that “it’d take a crisis” for the movement to gain any traction. A more feasible path to some limited reform may be to enact legislation forbidding foreign-owned corporations from influencing American elections, a phenomenon about which policymakers of both parties have expressed concern, but which is of uncertain importance. Others are calling for requirements that corporate political expenditures be approved by shareholders. Indeed, Tushnet emphasized that “the real action should be to shift attention from campaign financing to corporation law, and figure out some ways to ensure that shareholders really do approve of corporate expenditures on political campaigns.” Still, the future of reform remains unclear. While Senator Charles Schumer (D-NY) has promised legislation, Senator John McCain (R-AZ), a long-time proponent of reform, has indicated that he “[doesn’t] think there’s much that can be done.”

As Keyssar noted, an implicit deal was once struck between government and corporations: the latter would be protected from antitrust suits in return for a promise that “the political arena would not reflect the imbalance of power represented in the economic arena.” The Supreme Court has upset this equilibrium, and it may also have taken away the tools necessary to restore it.

John He ’13 is a Staff Writer.

Photo Credit: Robert Palmer (Flickr), AMagill (Flickr)

Can Latin America’s largest country rise above the hurdles?

As cannons blasted confetti down upon a roaring crowd in Rio de Janeiro in October, Latin America’s largest nation celebrated its arrival on the world stage. Like China before the 2008 Olympic Games, Brazil greeted the announcement that it would host the Games in 2016 as a rite of passage into the developed world.

But just two weeks later, a gang of drug traffickers in one of Rio’s notorious slums shot down a police helicopter in a brazen attack that killed three officers. More than 100 policemen poured into the shantytown to regain control in the ensuing gun battle, which took place only a mile from the stadium in which the Games are scheduled to be held.

Even as Brazil assumes increasing international prominence, the country’s political, social, and economic development remains hampered by fundamental problems of rule of law and severe inequality. Brazil’s economic growth in the past decade has been impressive, but the country will have to to overcome hurdles of stark social inequality, violent crime, and rampant corruption to establish itself as a rising superpower and role model in Latin America.

The “B” in “BRIC”

Brazil appears to have left behind the high inflation of inconsistent growth of the 1980s and 1990s, bolstered by a new currency and an economic stabilization plan developed in the past two decades. Goldman Sachs famously classified Brazil along with Russia, India, and China as one of the “BRIC” countries in 2003, ranking it among the largest and fastest-emerging markets in the world.

Jim O’Neill, the head of global economic research at Goldman Sachs who coined the term, told the HPR that Brazil has shown new promise. “Its ability to bounce back post-crisis, the decline in real interest rates, low and stable inflation, the amount of [foreign direct investment] building up in the ‘new’ Brazil, and its commodity richness” set the stage for sustained long-term growth, O’Neill explained. Brazil has experienced an average annual growth rate of nearly 5 percent in the past three years, and according to O’ Neill, is expected to be “stronger in the next decade than the last.”

Other experts echoed O’Neill’s optimism, citing Brazil’s stable government as an indicator of continued economic success. In an interview with the HPR, Filipe Campante, professor of public policy at the Harvard Kennedy School, attributed Brazil’s economic expansion to “institutional maturity” and “a consolidated democracy that has created more political stability.” Kevin Casas-Zamora, a Latin America expert at the Brookings Institution told the HPR that over the past fifteen years, the government – led by two strong presidents in a row  – has instituted important reforms to ensure “well-functioning political parties and an effective Congress.” These institutions provide Brazil with a solid foundation to sustain future growth.

Crime, Slums and Corruption

Despite this foundation, while Brazil has developed a strong, commodity-driven economy, such improvements have not translated into a broad distribution of wealth. Those living in the northeast region, for instance, have a per capita income that amounts to less than half the national average. Casas-Zamora noted that “regional imbalances in Brazil are huge because while the northeast of the country is at the level of development of sub-Saharan Africa, the Southern part is comparable to Southern Europe.” Campante noted that many “have no access to basic goods, services, and education.”  These troubles are hardly the mark of a highly developed economic powerhouse.

The problems of crime, violence and corruption in the slums, or favellas, dominate headlines about the breakdown of social order within Brazil’s major cities. There is a total lack of state control in many of the favellas, and the poorest neighborhoods are easily overrun by drug lords and mafias. Corrupt local police often fight gangs for the right to exploit the slum dwellers. James Roberts, research fellow at the Heritage Foundation, told the HPR that Rio in particular “is a dangerous city that certainly needs improvement and investments” before the Olympics arrives. David Samuels, professor of comparative politics at the University of Minnesota, told the HPR that most Brazilians point to crime as the biggest problem, followed closely by corruption. With a “dysfunctional” judicial system in which criminals can “buy their way out of charges,” Samuels said, Brazil is a long way from untangling this web of crime and corruption and strengthening rule of law.

A Way Forward: Education, Reform, and Transparency

Brazil may, however, be able to find a way forward through greater investment in education and the creation of a social safety net. “The faster Brazil grows and the richer it becomes, the more glaring becomes the fact that there are people who are extremely poor,” Campante explained. Unlike Mexico, said Samuels, Brazil has “a first world tax system.” But like Mexico, it offers only “third world [social] services.”

Spending on education may be particularly crucial, both as an investment in the country’s economic future and a viable alternative for youth to the illicit drug economy. Barry Ames, professor of Latin American politics at the University of Pittsburgh, told the HPR that Brazil must strengthen its limited social safety net. The bolsa familia or “family stipend” programs, Ames said, have been successful in keeping kids in school and reducing the malnutrition problem. Roberts suggested that Brazil use the Olympics as “a rallying point for the country” and invest in social welfare to “reduce socioeconomic pressures and give people opportunities to be productively employed.”

In addition, the government will need to wrest power away from the drug lords and reform the police and security forces from the top down.  Experts generally agree that a multi-pronged approach must be used to address corruption and violence.  Roberts argued that “having clear systems and procedures, transparency, not too many laws and the right incentives” would be steps in the right direction.

The rise of the press in Brazil is a critical part of increasing this transparency.  “Brazilian tolerance of corruption has decreased because a lot of corruption scandals are being revealed by the press, which indicates people are not willing to overlook it,” Campante explained. Ames agreed, noting that “democratic competition has led to an improvement in bureaucratic competence” as people vote corrupt politicians out of office. Samuels suggested that change will be a long-term process and that “Brazil will live under global scrutiny for another five to 10 years,” which may solidify the trend toward greater freedom for the press and open democratic competition.

Ultimately, rather than marking Brazil’s ascent as a done deal, the Olympic Games may galvanize political will to reduce inequality and buttress the rule of law in the country’s poorest regions. Having addressed the problems of violent crime and corruption, Brazil may be able to resume its exuberant samba on the world stage with a more confident step in 2016.

Image Credit: Mike Vondran

States gaining voice on drug laws

When Richard Nixon declared a “War on Drugs” in June 1971, he had little idea that he was also engaging Washington in a war with the states. In the decades since, the federal government has frequently asserted its primacy over the states on drug laws, despite the opposition of states-rights proponents. California began the state opposition movement in 1996 with the passage of the Compassionate Use Act by 56 percent of state voters, which allowed for the sale and consumption of medicinal marijuana; twelve other states have passed similar laws since. These laws, which are in conflict with federal law, have led to nasty legal, and sometimes even physical conflicts. With his election, however, President Barack Obama promised drug policy reform. Under the new administration, the federal government will temper its enforcement of federal drug laws, allowing the issue to fade from the national spotlight as the battle over cannabis use continues at the state and local levels.

History of Toughness

After passing the Controlled Substances Act in 1970, which includes marijuana in the highest level of illicit drugs, Nixon created the Drug Enforcement Administration to coordinate enforcement efforts. With changing administrations, though, the DEA has waxed and waned in enforcement of the CSA. Under President George W. Bush, the DEA was particularly powerful because Bush gave the agency permission to carry out raids against medicinal marijuana dispensaries in California. These raids sent a direct message to the dispensaries that the Bush administration considered federal drug laws superior to state laws.

Under the Obama administration, however, there are signs that this wave of enforcement is receding. Obama stopped the raids authorized under the Bush era, and Attorney General Eric Holder signaled that marijuana possession would be a low priority for the Justice Department. However, Obama has stressed that he has no plans to push for the legalization of marijuana at the national level. As Bruce Mirken of the Marijuana Policy Project told the HPR, Obama has his political capital tied to the debate over health care, and is “unlikely in the short term to stick his neck out too far” regarding drug policy. This hands-off approach likely means that debate over the issue will be left to the states.

The Court Weighs In

On questions of jurisdiction over drug laws, the Supreme Court has typically backed the federal government. The Court ruled in 2005 in Gonzales vs. Raich that, under the commerce clause, the federal government has the power to regulate cannabis use and enforce the CSA, despite state marijuana laws. This past June, however, San Diego County attempted to sue California for violating federal drug laws, but saw its lawsuit turned down by the Supreme Court. While this no-decision might be taken as a sign of the Court shifting its opinion on state marijuana laws, UCLA professor Mark Kleiman warns not to conclude too much from the ruling. As he explained to the HPR, “my understanding is that the Court ruled that federal law trumps state law; the counties are creatures of the states, and can’t sue their parents. No contradiction there.” As Mirken put it, the courts have sought an “awkward middle ground” between federal and state power. With Obama distancing the federal government from the issue, however, and the Court reluctant to involve itself in the dispute, it seems that the shift of power to the states will continue.

States On Top… For Now

Without fear of DEA raids or county lawsuits, medicinal cannabis dispensaries in states that permit them can operate freely under their respective state laws. In an interview with the HPR, University of Maryland professor Peter Reuter explained that “the federal government realized it doesn’t have much control on the issue,” meaning that states may, by default, become the centers of drug policy. The federalist conflict has thus subsided for now, and with Washington’s attention elsewhere, drug policy is positioned to escape the national spotlight, facilitating clearer debates at the state level. And although the future of American drug policy is unclear, it will almost certainly be shaped not by the White House, the DEA, or the Supreme Court, but by state legislatures and town halls across America.