The Supremacy Clause
How it affects Federal vs State Marijuana and other Laws
Federal law is created at the national level, and applies to the entire nation (all 50 states and the District of Columbia), and U.S. territories. The U.S. Constitution forms the basis for federal law; it establishes government power and responsibility, as well as preservation of the basic rights of every citizen.
State law is the law of each separate U.S. state and is applicable in that specific state. The state law applies to residents and visitors of the state, and also to business entities, corporations, or any organizations based or operating in that state.
Federal law – Is the body of law created by the federal government of a country.
State law – Is the law of each separate U.S. state, as passed by the state legislature and adjudicated by state courts. It exists in parallel, and sometimes in conflict with, United States federal law.
Federal law – Created by the U.S. Congress. Both houses of Congress must pass a bill and it must be signed by the President before it becomes law.
State law – Is enacted by the state legislature and put into effect when signed by the governor.
Federal law – US Constitution provides for a federal government superior to state governments in regard to enumerated powers.
State law – No state law can abolish or reduce the rights afforded by the US Constitution.
Presumption in Conflict
Federal law – Trumps any state law in explicit conflict.
State law – Subservient to federal law in case of explicit conflict.
Federal supremacy and preemption refers to the idea that all state and local laws must not conflict with federal law. The federal law is considered the supreme law and it always supersedes the state or local law.
The starting point for any discussion of the relationship between the U.S. and state constitutions is the Supremacy Clause of Article VI of the federal constitution, which says, “This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme law of the land; and the Judges in every State shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding.”
As stated in “State Constitutional Law: The Modern Experience,” this clause “makes clear—in explicit terms—that federal law has primacy over state law, including state constitutions, when there is a conflict between any federal law (constitutional, statutory, or even regulatory) and state law.” When Congress passes a law within its constitutional authority, the state law must defer. State constitutions are subordinate to federal statutes and treaties. This constitutional requirement is called preemption.
Supremacy Clause – Constitutional Law of the United States
The Supremacy Clause of the United States Constitution (Article VI, Clause 2) establishes that the Constitution, federal laws made pursuant to it, and treaties made under its authority, constitute the supreme law of the land. It provides that state courts are bound by the supreme law; in case of conflict between federal and state law, the federal law must be applied. Even state constitutions are subordinate to federal law. In essence, it is a conflict-of-laws rule specifying that certain federal acts take priority over any state acts that conflict with federal law. In this respect, the Supremacy Clause follows the lead of Article XIII of the Articles of Confederation, which provided that “Every State shall abide by the determination of the United States in Congress Assembled, on all questions which by this confederation are submitted to them.” A constitutional provision announcing the supremacy of federal law, the Supremacy Clause assumes the underlying priority of federal authority, at least when that authority is expressed in the Constitution itself. No matter what the federal government or the states might wish to do, they have to stay within the boundaries of the Constitution. This makes the Supremacy Clause the cornerstone of the whole American political structure.
The actual words is as follows:
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
EXAMPLES of State vs Federal Controversies:
- The Voting Rights Act of 1965, an act of Congress, preempts state constitutions.
- Congress allowed the Food and Drug Administration, federal regulatory agencies to set federal minimum standards which may preempt state court judgments in cases involving prescription drug labels.
- The 1976 Medical Device Regulation Act, Congress preempted all state regulation.
- State objections to the federal health care law, in particular the individual mandate that requires people to purchase health insurance.
- State-sponsored personhood amendments or laws that would declare life to begin at conception, an objection to the current abortion jurisprudence under federal law.
- Marijuana laws are another area where federal law conflicts with state laws in several states. Recreational marijuana use is legal in Washington and Colorado. Many other states have legalized medical marijuana. However, cannabis continues to be a controlled substance under federal law. So while local law enforcement is not likely to arrest or prosecute marijuana growers or those in possession of pot (in a quantity under the state’s legal limit), these individuals still risk getting arrested by federal authorities. What’s more, business that are legally allowed to sell pot in Washington and Colorado — and, indeed, have the state-issued license to do so — find that they are unable to open bank accounts or engage in the financial system (e.g., by accepting credit cards) because no bank is ready (or allowed under federal law) to do business with them. When Washington and Colorado legalized recreational use of marijuana, the Obama administration recognized the conflict with state law and agreed to let these states go ahead, with conditions and without giving up federal authority to step in at any time.
The Constitution (including its Amendments) is made up of hundreds of clauses. Some of the clauses are more important than others or have been hotly debated as to their scope, meaning, or effect. These clauses are given names by which they may be referred. The following includes some of the more important clauses:
Commerce Clause – refers to Article 1, Section 8, Clause 3 of the U.S. Constitution, which gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”
Confrontation Clause – the Sixth Amendment provides that a person accused of a crime has the right to confront a witness against him or her in a criminal action. This includes the right to be present at the trial as well as the right to cross-examine the prosecution’s witnesses.
Due Process Clause of the Fifth Amendment – the clauses incorporated within the Fifth Amendment outline basic constitutional limits on police procedure.
Equal Protection Clause of the Fourteenth Amendment – prohibits states from denying any person within its territory the equal protection of the laws. This means that a state must treat an individual in the same manner as others in similar conditions and circumstances. The Federal Government must do the same, but this is required by the Fifth Amendment Due Process.
Full Faith and Credit Clause – the requirement, derived from Article IV, Section I of the Constitution, that state courts respect the judgments of courts from other states. Thus, a judgment won in one state may be enforced in another, without a relitigation of the underlying issues.
General Welfare Clause – provides that the governing body empowered by the document may enact laws to promote the general welfare of the people, sometimes worded as the public welfare.
Necessary and Proper Clause – under Article I, Section 8 of the Constitution, Congress has the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or any Department or Officer thereof”.
Supremacy Clause – Article VI, Paragraph 2 of the U.S. Constitution is commonly referred to as the Supremacy Clause. It prohibits states from interfering with the federal government’s exercise of its constitutional powers, and from assuming any functions that are exclusively entrusted to the federal government. It does not, however, allow the federal government to review or veto state laws before they take effect.
Congress may determine that a subject is appropriate for both federal and State regulation, and expressly provide for concurrent jurisdiction in the law.
• Remain silent regarding jurisdiction.
If Congress has not stated its preference, the Supreme Court may decide if the subject matter is under the exclusive control of the federal government.
- The only way to effectively overcome federal supremacy is to demonstrate that the federal law is in itself unconstitutional, and therefore illegal. In such cases, the federal law would be struck down by the court, and the state law would be the authority.