On Saturday, four state laws went into effect that nullify specific federal acts in practice, along with two others that went on the books placing significant roadblocks in the way of some federal programs.

“For far too long, we’ve assumed that when the federal government does something, no matter how wrong-headed or destructive it is, we have to sit back and accept it. That’s just wrong. These new laws show just how much power states have over their own policies – no matter what the feds want them to do,” Tenth Amendment Center national communications director Mike Maharrey said.

In Alabama, North Dakota and Minnesota, “Right to Try” laws went into effect, opening the door for terminally ill patients to bypass FDA red tape and access more treatment options.

The FDA prohibits general access to experimental drugs. However, under the expanded access provision of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. 360bbb, patients with serious or immediately life-threatening diseases may access experimental drugs after receiving express FDA approval.

These new state “Right to Try” laws bypass the FDA expanded access program and allow patients to obtain experimental drugs from manufacturers without first obtaining FDA approval. This state procedure directly conflicts with FDA policy and effectively nullifies it in practice.

“FDA regulations that would let somebody die rather than try have got to be some of the most inhumane policies the federal government has ever conceived. Every state should nullify these FDA rules,” Maharrey said.

Twenty-two states have enacted “Right to Try” laws, and bills in Illinois and Oregon await governor signatures.

State laws legalizing hemp follow a similar strategy as Right to Try. A North Dakota bill that became law Saturday legalizes the farming, production and sale of industrial hemp, nullifying federal prohibition in effect.

Industrial hemp falls under the federal Controlled Substance Act of 1970. It technically remains legal to grow the plant, but farmers must obtain a permit from the DEA, a nearly impossible feat. The feds did loosen the requirements some in 2014, allowing for limited hemp production for research purposes if legal under state law, but still only with a federal permit.

The new North Dakota law expressly rejects the need for federal approval at all.

“A license required by this section is not conditioned on or subject to review or approval by the United States drug enforcement agency.”

“Of course, the North Dakota law doesn’t end federal prohibition, nor does it stop federal enforcement,” Maharrey said. “But history has already shown that the feds lack the resources to enforce hemp prohibition. In other states with similar laws, like Colorado and Vermont, farmers have already harvested hemp crops. There’s a huge commercial market for this plant, and when states take away some of the barriers, people are going meet the demand – no matter what the feds say.”

Two other laws went into effect Saturday that will also impact federal actions.

A new Minnesota law places strict limits on the use of automated license plate readers (ALPRs) by law enforcement in the state. It also places significant roadblocks in the way of a federal program using states to help track the location of millions of everyday people through pictures of their license plates.

As reported in the Wall Street Journal, the federal government, via the Drug Enforcement Agency, tracks the location of millions of vehicles. They’ve engaged in this for nearly eight years, all without a warrant, or even public notice of the policy.

State and local law enforcement agencies operate most of these tracking systems, paid for by federal grant money. The DEA then taps into the local database to track the whereabouts of millions of people – simply because they’re driving – without having to operate a huge network itself.

Since a majority of federal license plate tracking data comes from state and local law enforcement, the new Minnesota law takes a major step toward blocking that program from continuing in the state. The feds can’t access data that doesn’t exist.

Laws like the one that went into effect in North Dakota restricting drone use have a similar effect on the federal surveillance state. The feds fund drone programs and then tap into the information gathered by state and local law enforcement through fusion centers and a federal program known as the information sharing environment.

“The lines between local, state and federal surveillance have become blurred almost to the point of non-existence,” Maharrey said. “The feds have pretty much turned state and local law enforcement into spy agencies for the federal government. As a result, actions restricting surveillance and information gathering, and protecting privacy at the state level have a significant spillover effect. Make no mistake; if you want to protect your privacy, it’s not just the NSA you need to worry about. You had better deal with what your local cops are doing in your own back yard.”

Mike Maharrey

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