The first major federal drug law, the Harrison Narcotics Act, went into effect in 1915. As the federal drug war moves into its second century, we are still faced with an unprecedented opioid crisis that is getting worse during the current pandemic. Yet while other countries such as Portugal and Switzerland are approaching the problem with new, more humane ideas, the federal government is stuck in the prohibitionist mindset of the past, which not only doesn’t work but makes the problem worse. 

Safehouse is a nonprofit public‐​health organization that seeks to mitigate the harms of the opioid crisis in many ways. First and foremost, Safehouse wants to provide a supervised injection site (SIS) for compulsive opioid users. SISs do not provide any drugs to users but offer a place where the drugs can be tested and medical professionals are available in the event of an overdose. In addition, Safehouse will offer counseling and recovery treatment.

SIS model has been used with great success elsewhere, especially in Vancouver’s Downtown Eastside, which was an epicenter of overdoses before Insite opened in 2003. Despite those successes, the federal government is trying to block Safehouse by invoking a 1980s crack‐​house law that makes it a crime to provide a place to take illicit drugs, even without compensation. Safehouse won the first round when a federal district court ruled that the Department of Justice couldn’t stretch the crack‐​house statute to cover Safehouse’s lifesaving SIS.

Now on appeal to the Third Circuit, Cato, joined by the ACLU and the ACLU of Pennsylvania, has filed a brief supporting Safehouse. We argue that the Constitution’s federal structure was designed to allow for states to experiment with different policies, especially when it comes to protecting the health and welfare of citizens. No one knows how to solve the opioid crisis, and it is bad form, at the very least, for the federal government to try to block SISs with a 30‐​year‐​old law that was passed during the height of the War on Drugs. The idea that prohibition and arrests is the best way to solve the opioid crisis should be left in the past.

Moreover, the federal government is largely responsible for the current overdose crisis. Over the past decade, the synthetic opioid fentanyl has become the biggest source of overdoses, with over 31,000 dying in 2018. Fentanyl is 50 to 100 times stronger than heroin, and the lethal dose is 2 or 3 milligrams, which is equivalent to about 4 grains of salt. Compulsive heroin users are increasingly finding fentanyl in their heroin, often unknowingly. They shoot up the same amount as usual, and they die.

Why is such a deadly drug polluting the drug supply? Because of the “iron law of prohibition.” When college kids sneak alcohol into a football game, they don’t sneak beer, they prefer the more compact and potent stuff. Similarly, during alcohol Prohibition, beer and wine essentially disappeared and were replaced by hard spirits. For the same reasons, drug traffickers prefer high‐​potency opioids like fentanyl even when the users are not demanding it.

Finally, we argue that the DOJ’s attempt to apply the crack‐​house law to Safehouse’s SIS is an unconstitutional extension of the Commerce and Necessary and Proper Clauses. Under the government’s argument, parents that let their son shoot up in the bathroom so they can monitor him would be violating the same statute. Yet the Commerce and Necessary and Proper Clauses do not let Congress regulate intrastate, noneconomic activity such as this. While Congress has broad power under current precedents, it doesn’t have the power to control everything that happens around illicit drugs.

The Third Circuit should stop the federal government’s cruel and counterproductive attempt to block an institution that will undoubtedly save lives.