Recent legislation proposed by Senator Elizabeth Warren (D-MA) and other Senators provides us with an opportunity to learn more about the Supremacy Clause of the United States Constitution and federalism.  The proposed law is called the STATES Act (Strengthening the Tenth Amendment Through Entrusting States Act).  The Act would prevent the federal government (in most cases) from prosecuting a person who violates federal marijuana laws provided that person is complying with state law.

Background: The Supremacy Clause

Article VI, Clause 2 of the United States Constitution establishes that the Constitution and federal law are the supreme law of the United States.  As a result, if there is a conflict between federal law and state law, federal law will preempt state law.  That is, the federal law will displace or replace the state law – – federal law wins.

Additional Background:  The Tenth Amendment, Federalism, and Drug Laws

The Tenth Amendment to the United States Constitution codifies federalism, a bedrock principle of the United States.  Federalism means that  power is distributed to the national government and also to state governments.  Amendment X provides that any power that the Constitution does not exclusively provide to the federal government is reserved for the States.

Some powers only belong to the national government of the United States.  For example, only the federal government may declare war.  A state may not declare war against another country because declaring war is a power that exclusively belongs to the federal government (e.g., Pennsylvania can’t go to war against Argentina).

But other powers either only belong to the states or are shared by the states and the federal government.  For example, both the federal government and the states can pass criminal laws.  As a result, in the United States there are both federal and state laws criminalizing drug use.

Federal and State Marijuana Laws are Not the Same

For years, the federal government and all states made it a crime to possess, use, distribute, and grow marijuana.  The federal government’s drug law, known as the Controlled Substances Act, criminalizes many drugs including marijuana.  States had similar laws.   If a person used, bought or sold marijuana both the state and federal government could prosecute him.

In recent years, many states relaxed  their marijuana laws.  Some states have completely legalized marijuana use by adults.   Other states have made it legal to use medical marijuana (marijuana for medical purposes).  But the federal government’s marijuana laws remain in place, therefore, a person might violate federal marijuana law even if he is complying with state law.  For example, a person might grow marijuana in California without violating California state law, but he could still be arrested by federal agents for violating federal law.




Do Federal Marijuana Laws Conflict with State Laws?

At first glance, it might seem that there is a conflict between federal marijuana law and some states’ marijuana laws. After all, the federal government makes it a crime to use marijuana but certain states do not.  Isn’t that a conflict?

Probably not.  Although marijuana is legal in some states the federal government does not require states to pass laws that criminalize marijuana.   Also, no state forces anyone to use marijuana so no state requires a person to violate federal drug laws.  As a result, courts would probably agree that federal law does not conflict with state law.

And because there is no conflict between federal law and state law, courts would probably hold that the Supremacy Clause does not cause federal marijuana laws to preempt state laws.

As a result, we can expect that over the next few years the federal government will continue to treat marijuana as an illegal drug while many states consider marijuana legal.  Federal and state marijuana laws will be different, but not in conflict.

So What’s the Problem?

If we’re not worried about federal law preempting state law, then why is there a problem?

Actually, there are several challenges  when federal law prohibits a practice that is legal under state law.  One major practical problem is that a marijuana business operating legally under state law needs a place to put its money.  Most legitimate businesses rely on banks.  However, federal law makes it difficult for marijuana businesses to deposit money in banks.  And running an all cash business creates problems for businesses and politicians.

Another problem, of course, is that no one wants to face federal criminal charges.  And a person operating a marijuana business legally under state law would prefer some assurance that he won’t be arrested for violating federal law.

The States Act

Proponents of the States  Act (Strengthening the Tenth Amendment by Entrusting States Act) hope to protect persons who might otherwise be prosecuted under federal marijuana laws.  The Act amends the Controlled Substances Act (the federal drug law), to provide that federal marijuana laws do not apply to persons who are obeying state law.  If the States Act were passed, a person who  is legally using, buying, selling, or possessing marijuana under state law, would most likely not face prosecution under federal law.

The States Act refers to the Tenth Amendment because the Tenth Amendment reserves power for the States.  The Act allows states  to experiment with different drug laws to see which laws work best.  States that wish to criminalize marijuana can continue doing so while other states can  make marijuana legal.  Supporters of the Act argue that allowing States to decide for themselves whether they wish to legalize marijuana is consistent with the principle of federalism.

Of course, the States Act is not a law yet.  First, the Act must pass both houses of Congress.  After that, the President will need to sign the Act into law before it comes into effect.




Point I

Federal law criminalizes marijuana while some states have legalized marijuana.  The laws are different, but not in conflict, so federal law does not preempt state law.

Point II

Federalism means that some powers belong to the federal government, some powers belong to the states, and others are shared.  As a result, states can often experiment with different laws and people can observe which laws are most effective at accomplishing the goals of people in each state.

Point III

The STATES Act is a proposed law in Congress that would amend the federal drug law to provide that a person who is complying with a state marijuana law is not violating federal drug law.