OBAMA MAKES A CHANGE, BUT STATES' RIGHTS BATTLE NOT OVER

CALIFORNIA FOCUS
FOR RELEASE: TUESDAY, APRIL 7, 2009, OR THEREAFTER

EDITORS: TO ENSURE TIMELINESS, DISREGARD EMBARGO DATE

BY THOMAS D. ELIAS
"OBAMA MAKES A CHANGE, BUT STATES' RIGHTS BATTLE NOT OVER"

There was a time when the term "states' rights" stood for trampling on the rights of individuals. Many states asserted during the great civil rights battles of the 20th Century that they had the right to prevent some citizens from voting, eating in the restaurants of their choice, drinking from public water fountains or sitting where they pleased on buses and trains.

But issues of states' rights were essentially turned on their head by a U.S. Supreme Court bent on restricting some items (like medical marijuana, okayed in 1996 by California voters) and by the former George W. Bush administration, which was willing to claim almost anything to further its agenda of favoring big business over consumers and the environment.

That began to change after Barack Obama became the 44th president. For one thing, despite a few raids early in Obama's term, his attorney general Eric Holder has now made it clear he will no longer prosecute medical marijuana dispensaries operating according to California's 1990s-era law.

But other signals indicate the Supreme Court remains a states' rights opponent.

The most prominent of those came in a decision involving the U.S. Navy and the dolphins and gray whales that migrate annually along the California coast. The Navy and the marine mammals generally coexist happily, but not in the strait between San Clemente and Santa Catalina islands off the California coastline.

The Navy uses that strait to practice submarine detection because it boasts currents and other conditions similar to those in the Strait of Hormuz, the strategic entrance to the Persian Gulf. Trouble is, environmental groups say naval mid-frequency active sonar has killed and injured whales and dolphins by interfering with their own sonar-like communications.

The state Coastal Commission and several private wildlife protection organizations sued last year to prevent the Navy from conducting exercises in the strait at times when marine mammals are near. U.S. District Judge Florence Marie Cooper went aboard several naval vessels to observe maneuvers and later found in favor of the whales and the Coastal Commission, instructing the Navy to shut down its sonar when within 2,200 yards of whales or dolphins.

The Navy appealed immediately to then-President Bush, who responded with the first and so far only presidential order exempting military maneuvers from environmental rules. The Natural Resources Defense Council and others took the case to the U.S. Supreme Court, which held by a one-vote margin that the Navy can do as it likes and never mind the state or the animals.

The ruling implies that even with Bush long gone, and with Obama reversing or about to overturn several Bush stances - including his refusal to allow California to regulate carbon dioxide emissions from cars and trucks - the states' rights battle will continue.

The biggest change so far is Holder's indication that the long federal campaign to harass or shut down medical marijuana clinics and cooperatives in California is over. A profusion of clinics sprang up after passage of Proposition 215, which allows use of medipot with a doctor's recommendation. Some of the clinics and co-ops have long been suspected of selling pot to anyone, not just those with notes from doctors. They also are accused of accepting almost any piece of paper as a recommendation, without bothering to check authenticity. Now, Holder says only those suspected of such wrongs will be prosecuted.

Under both Bush and his Democratic predecessor Bill Clinton, raids were frequent on clinics and arrests of growers who maintained they are supply only legitimate patients. The justification always was that federal law banning marijuana use takes precedence over any state law - even though more than a dozen other states have voted to legalize medipot since the California vote.

But despite Obama's hands-off medipot policy, the anti-states' rights Supreme Court majority remains. It's a majority that has insisted the federal government can override state decisions on siting of liquefied gas terminals, controlling pollution at ports and many other items.

So long as that majority survives, one principle long upheld by California's highest state court will be in jeopardy: That's the one which holds that while states may not grant their citizens (or animals, in some cases) fewer rights than guaranteed under the federal Constitution, they can grant more rights.

This was the principle at work last spring when the state Supreme Court legalized same-sex marriage, a decision narrowly reversed months later by the voters via Proposition 8 and now back before the same court.

It's a principle that has furthered the fight against smog, led to legalized abortion here long before the Roe v. Wade decision did it nationally and helped equalize revenue among school districts, among many important steps.

Bush eroded that principle, with consistent backing by the federal justices.

Obama has not yet shown he can reverse that tide.

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Elias is author of the current book "The Burzynski Breakthrough: The Most Promising Cancer Treatment and the Government's Campaign to Squelch It," now available in an updated third printing. His email address is tdelias@aol.com