Kara Sears
The concept of federalism in the United States establishes a system of dual sovereignty between the federal government and the states. While the federal government has the power to create and enforce laws, states retain the authority to govern themselves within their defined boundaries. This dynamic often leads to questions about the extent to can states insulate themselves from federal laws. The Supremacy Clause in the US Constitution establishes that federal laws generally supersede state laws, and the federal courts have the power to declare federal laws unconstitutional. However, states have occasionally challenged federal authority, citing their rights to interpret the Constitution and nullify federal laws that exceed the federal government's powers. This tension between federal and state authority has played out in various contexts, such as the legalisation of marijuana in certain states despite its classification as a Schedule I Drug under federal law.
| Characteristics | Values |
|---|---|
| Can states nullify federal laws? | Yes, but only in certain circumstances. The federal government can't force states to use their resources to enforce federal laws. |
| Can federal laws be declared unconstitutional by states? | Yes, according to the Kentucky and Virginia Resolutions of 1798, which are considered the foundational documents of the theories of nullification and interposition. |
| Can federal laws be enforced by state police? | No, the federal government can't force state or local police to enforce federal laws. |
| Can federal laws be enforced by federal law enforcement agencies? | Yes, but it is rare. For example, the federal 55 mph maximum speed limit was enforced by federal law enforcement agencies. |
| Can states prevent federal authorities from enforcing their laws? | No, states that have legalized medical and adult-use cannabis do not prevent federal authorities from enforcing their own laws against individuals or businesses. |
| Can the federal government withhold federal monies to impose federal laws? | Yes, the federal government has withheld federal highway funds from states that refused to increase their drinking age to 21. |
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What You'll Learn
State sovereignty
In the United States, the federal government may want states to adopt certain laws, but it doesn't happen automatically, and the federal government is limited in the ways it can make states comply. For example, while the federal government may ban the sale of raw milk, some states allow sales despite federal law. Similarly, California voters decided to create an exception to their state marijuana possession law for residents with certain medical requirements, despite the federal government still considering possession by those individuals illegal.
The Kentucky and Virginia Resolutions of 1798, written by Thomas Jefferson and James Madison, argued that "the states" have the right to interpret the Constitution and can declare federal laws unconstitutional when the federal government exceeds its delegated powers. These resolutions are considered the foundational documents of the theories of nullification and interposition. The Kentucky Resolutions of 1798 asserted that the states formed the Constitution, delegating certain specified powers to the federal government and reserving all other powers for themselves. Each state, as a party to the compact, has a "right to judge for itself" the extent of the federal government's powers.
In practice, the federal government can enforce its laws by withholding federal monies or resources from states. For example, the federal government forced states to increase the drinking age to 21 by withholding federal highway funds from states that refused to comply. The federal government can also enforce its laws through federal law enforcement agencies, although this may be limited by a lack of resources if state law enforcement agencies do not cooperate.
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Federal courts' powers
The US Constitution grants federal courts the power to declare federal laws unconstitutional. For instance, the Kentucky and Virginia Resolutions of 1798, which are considered the foundational documents of the theories of nullification and interposition, state that "the states" have the right to interpret the Constitution and can declare federal laws unconstitutional when the federal government exceeds its powers. This assertion was further supported by several Constitutional Convention delegates, including George Mason, James Madison, and Elbridge Gerry, who affirmed the power of federal judges to interpret and decide on the constitutionality of federal laws.
In practice, this power of federal courts has been demonstrated in various cases. One notable example is the Supreme Court's decision in Martin v. Hunter's Lessee in 1816, where the Court rejected the Virginia Court of Appeals' claim of sovereignty and upheld its authority to review state court judgments. The Supreme Court also played a crucial role in the Osborn v. Bank of the United States case in 1824, where it rejected Ohio's attempt to nullify federal law by declaring a state's law "repugnant to a law of the United States."
However, it is important to note that the federal government's ability to enforce its laws in states that have legalized activities considered illegal at the federal level, such as marijuana sales, is limited. The federal government cannot compel state resources or law enforcement to enforce federal laws. Instead, they must either utilize their law enforcement agencies or encourage cooperation from the states. This dynamic has led to a complex interplay between federal and state authorities, with the federal government occasionally issuing memos or taking a more hands-off approach, as seen in the Cole memo, which advised federal prosecutors to deprioritize marijuana enforcement in states with "robust" regulations.
While federal courts possess the power to declare federal laws unconstitutional, the dynamic between federal and state authorities in enforcing laws is nuanced. The federal government must navigate the balance between its desire to enforce certain laws and the states' autonomy to interpret and regulate specific matters, such as marijuana legalization, within their jurisdictions.
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State-legalised marijuana
Marijuana is legal for medical use in 39 out of 50 US states, and for recreational use in 24 states. Despite this, at the federal level, cannabis is still classified as a Schedule I drug under the Controlled Substances Act, meaning it is prohibited for any purpose. This classification is due to the determination that cannabis has a high potential for abuse and no accepted medical use.
However, federal law is generally not enforced against the possession, cultivation, or intrastate distribution of cannabis in states where such activity has been legalised. This non-enforcement of federal law in states that have legalised marijuana can be traced back to the Rohrabacher-Farr amendment, first passed in 2014, which prohibits federal prosecution of individuals complying with state medical cannabis laws.
The legal status of marijuana varies across states, with different laws regarding possession, transportation, and personal cultivation. For example, in Vermont, growing marijuana at home is allowed, but it must be locked away and not visible to the public. In contrast, Washington does not permit the home-growing of cannabis plants except under special circumstances. Additionally, each state has its own laws regarding the legal amount of marijuana that can be carried on one's person, kept in one's residence, and transported.
The legalisation of marijuana at the state level has had economic implications as well. For instance, in 2021, Alaska, which legalised recreational marijuana in 2014, collected $28.9 million in marijuana excise taxes.
While the federal government has the power to declare state laws unconstitutional, the complex interplay between federal and state laws regarding marijuana in the US has resulted in a situation where states have, to some extent, insulated themselves from federal laws prohibiting cannabis.
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Federal funding
The Supreme Court has articulated several limitations on the federal government's authority to distribute funds to non-federal entities. The Court has ruled that the federal government cannot require states to enact or enforce a federal regulatory program or require state officials to administer a federal regulatory scheme. However, these rulings allow Congress to impose conditions on the receipt of federal funds as long as they are a proper exercise of Congress's spending power granted by the Constitution. The Court has set four standards to determine the eligibility for federal grants: the spending must be in pursuit of the general welfare, the conditions must be unambiguous, related to federal interests, and not coercive.
The Trump administration has attempted to use federal funding as a political weapon by threatening to cut off grants to "sanctuary cities" and block financial assistance to states that do not cooperate with its agenda. These actions have been deemed legally dubious and unconstitutional, as the 10th Amendment prohibits the federal government from forcing states or cities to carry out federal immigration enforcement actions. Multiple courts have struck down the administration's efforts to add new conditions to state and local grants as exceeding statutory authority. The reality is that the president's authority over congressionally-appropriated funds is limited by the Constitution, Supreme Court precedent, and long-standing federal law.
While the federal government can impose conditions on the receipt of federal funds, there are legal and constitutional limitations to this power. States are not required to comply with all federal laws, and they have the right to refuse to participate in certain federal regulatory programs. However, by refusing to comply with certain conditions, states may risk losing access to certain sources of federal funding.
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Supremacy Clause
The Supremacy Clause is one of the most significant structural provisions of the US Constitution. It establishes that the Constitution, federal laws made under its authority, and all treaties made under the authority of the United States are the supreme law of the land. This means that federal law is superior to state law, and that judges in every state are bound by it, regardless of state laws or constitutions.
The Supremacy Clause was included in the Constitution to address issues with the Articles of Confederation, which lacked a similar provision. During the Confederation era, federal statutes did not bind state courts unless there was state legislation implementing them. The Supremacy Clause was not a major point of contention at the Constitutional Convention, but it did generate controversy during debates over the Constitution's ratification. However, advocates of federal supremacy prevailed, and the Constitution was ratified in 1788 with the Supremacy Clause included.
In the late eighteenth and early nineteenth centuries, the Supreme Court relied on the Supremacy Clause to establish a robust role for the federal government in managing the nation's affairs. The Court's early decisions on federalism reinforced the sharp division between federal and state powers. In the twentieth century, the Court developed the doctrine of field preemption, which holds that some federal legislation implicitly prevents states from adopting any laws regulating the same general subject. This means that any congressional action in certain fields automatically displaces all state laws in those areas.
The Supreme Court has recognised several types of preemption in its cases. Federal law can expressly preempt state law when it contains explicit language to that effect. Alternatively, federal law can impliedly preempt state law when that intent is implicit in its structure and purpose. Field preemption, a subcategory of implied preemption, occurs when federal law is so pervasive that it is reasonable to infer that Congress left no room for states to supplement it, or when the federal interest is so dominant that the enforcement of state laws on the same subject is precluded.
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Frequently asked questions
Yes, states can make their own laws. For example, in 1996, California voters decided to create an exception to their state marijuana possession law for residents who met certain medical requirements. This was despite the federal government's stance that the possession of marijuana was illegal.
While states cannot ignore federal laws, they can choose not to enforce them. In such cases, it is up to the federal government to decide whether to enforce the law themselves and whether they have the resources to do so.
Yes, states can make laws that contradict federal laws. For example, the federal government bans the sale of raw milk, but some states allow sales despite this federal law. However, federal laws supersede state laws, and federal courts have the power to declare federal laws unconstitutional.
