MONTPELIER, Vt. (May 8, 2024) – Yesterday, the Vermont House gave final approval to a bill that would authorize the establishment of “overdose prevention centers” in the state despite federal law prohibiting the same.
Rep. Taylor Small and a large coalition of cosponsors introduced House Bill 72 (H72) in January. The bill would authorize the establishment of overdose prevention centers (OPC) in the state if approved by the municipal government.
Also known as “safe injection sites,” the centers would provide a safe place for substance abusers to seek help, treatment, and resources. Drug users would be able to legally possess and use prohibited substances in the centers under medical supervision. OPCs would also provide resources such as clean needles to addicts. Staff on site would be trained to reverse an overdose if needed.
H72 would grant amnesty to individuals in possession of a regulated drug in violation of state law while at an overdose prevention center.
The House initially passed H72 by a 96-35 vote. The Senate approved the measure by a 21-8 vote. On May 7, the House approved a Senate amendment, sending the bill to Gov. Phil Scott’s desk.
According to a paper by the Cato Institute, “OPCs have been preventing overdose deaths and the spread of infections for more than 40 years. In 2023, there were 147 OPCs operating in 91 communities and 16 countries. Two have been saving lives in New York City since December 2021 and had reversed more than 1,000 overdoses by the summer of 2023.”
City officials in Burlington have already indicated they would approve the establishment of an OPC in that city. It would serve as a pilot program. The bill would allocate $1.1 million to establish the OPC in Burlington.
Gov. Scott has publicly opposed the bill, calling OPCs “unproven injection sites,” but the bill passed both chambers with veto-proof majorities.
IMPACT ON FEDERAL PROHIBITION
If enacted, H72 would ignore federal law prohibiting OPCs.
Known as the “crackhouse statute,” 21 U.S.C. Section 856 makes it illegal to “knowingly open, lease, rent, use, or maintain any place, whether permanently or temporarily, for the purpose of manufacturing, distributing, or using any controlled substance.”
Two OPCs already operate in New York City, and Rhode Island passed a law authorizing them in 2022. As the Cato Institute put it, “New York City and Rhode Island are defying federal law.”
Minnesota has also authorized OPCs, but the Minnesota Department of Health has not opened any because “federal law has been interpreted as prohibiting safer use spaces.”
But as Cato pointed out, “As more state and local governments defy federal law and embrace OPCs, it might move Congress to repeal or amend the “crackhouse statute.”
This is the strategy laid out by James Madison in Federalist #46. A “refusal to cooperate with officers of the Union” provides an extremely effective method to render federal laws, effectively unenforceable because most enforcement actions rely on help, support, and leadership from the states. This legislation could effectively end enforcement of any federal laws deemed to violate the Constitution.
LEGAL BASIS
States do not have to enforce federal laws and can take action that conflicts with them. This fact rests on a well-established legal principle known as the anti-commandeering doctrine. Simply put, the federal government cannot force states to help implement or enforce any federal act or program – whether constitutional or not. The anti-commandeering doctrine is based primarily on five Supreme Court cases dating back to 1842.
In Murphy v. NCAA (2018), the Court held that Congress can’t take any action that “dictates what a state legislature may and may not do” even when the state action conflicts with federal law. Samuel Alito wrote, “A more direct affront to state sovereignty is not easy to imagine.” He continued:
The anticommandeering doctrine may sound arcane, but it is simply the expression of a fundamental structural decision incorporated into the Constitution, i.e., the decision to withhold from Congress the power to issue orders directly to the States … Conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the States. The anticommandeering doctrine simply represents the recognition of this limit on congressional authority.
No determination of constitutionality is necessary to invoke the anti-commandeering doctrine. State and local governments can refuse to enforce federal laws or implement federal programs whether they are constitutional or not.
WHAT’S NEXT
Gov. Scott will have five days (excluding Sunday) from the date the legislature transmits H72 to his office to sign or veto the law. If he takes no action, it will become law without his signature.
