Kara Sears
The relationship between state and federal law in the United States is a complex one, and the question of whether states can legalize something prohibited by federal law is a highly relevant and evolving topic. This issue has come to the forefront in recent years, especially with the legalization of cannabis in many states, despite federal prohibition. The conflict between state and federal laws has led to a dynamic landscape, with states taking the initiative to legalize certain substances or activities, while the federal government has shown varying degrees of enforcement of its own laws. This situation has resulted in a grey area, with ongoing debates and court challenges regarding the authority and jurisdiction of federal and state governments.
| Characteristics | Values |
|---|---|
| Supremacy Clause of the US Constitution | The area of law that addresses possible conflict between state and federal laws |
| Marijuana legalization | 39 states for medical use, 24 states for recreational use |
| Federal law enforcement | Federal law enforcement focuses on marijuana revenue that appears to fund gangs, support distribution to minors, and transport across state lines |
| State regulatory activity | State regulatory activity does not violate the Supremacy Clause |
| Cole memo | The Department of Justice advised federal prosecutors to not prioritize marijuana enforcement unless states failed to provide “robust” regulation |
| Rohrabacher–Farr amendment | Prohibits federal prosecution of individuals complying with state medical cannabis laws |
| Federal non-enforcement | The federal government has not cracked down every single time a state and federal law contradict |
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What You'll Learn
Marijuana legalization by states
Marijuana legalization has been a contentious issue in the United States, with varying laws and perspectives across different states and at the federal level. At the federal level, cannabis is classified as a Schedule I drug under the Controlled Substances Act, indicating a high potential for abuse and no accepted medical use. This classification prohibits its use for any purpose under federal law.
However, many states have taken a different approach, legalizing marijuana for medical and, in some cases, adult use. As of April 2025, marijuana is legal for medical use in 39 out of 50 states and for recreational use in 24 states, three US territories, and Washington, D.C. This discrepancy between state and federal laws has led to a complex situation where individuals acting in compliance with state marijuana laws may simultaneously be in violation of federal law.
The ability of states to legalize marijuana despite federal prohibition stems from the concept of state sovereignty and the interpretation of the Supremacy Clause of the US Constitution. While the federal government may prefer all states to criminalize marijuana, it cannot force them to do so. This is because the federal government is limited in how it can make states comply, and state laws only apply to citizens within that particular state. As a result, while federal law takes precedence, states can choose to create their own laws that deviate from federal regulations without automatically violating the Supremacy Clause.
To address the conflict between state and federal marijuana laws, the Department of Justice released the Cole memo in 2013. The memo acknowledged that state-legalized marijuana sales remained illegal under federal law but advised federal prosecutors to deprioritize enforcement as long as states provided robust regulation. Specifically, federal law enforcement would focus on marijuana-related activities involving gangs, distribution to minors, and transportation across state lines. However, in 2018, Attorney General Jeff Sessions rescinded the Cole memo, creating uncertainty about the federal government's approach to enforcing marijuana laws in states that have legalized it.
Despite the ongoing federal prohibition, the federal government generally does not enforce its laws against possession, cultivation, or intrastate distribution of cannabis in states that have legalized it. Additionally, Congress has imposed limits on federal law enforcement related to medical cannabis, and the Rohrabacher-Farr amendment prohibits federal prosecution of individuals complying with state medical cannabis laws. These actions reflect a recognition that some regulation is better than none and allow states to implement their own marijuana policies without directly interfering with federal authorities' enforcement capabilities.
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Supremacy Clause of the US Constitution
The Supremacy Clause of the US Constitution, established under Article VI, Paragraph 2, is a foundational principle that asserts the priority of federal law over conflicting state laws. It states that the Constitution, federal laws, and treaties made under the authority of the United States are the supreme law of the land, binding judges in every state. This clause was included in the Constitution to address the lack of a similar provision in the Articles of Confederation, which previously governed the United States.
The Supremacy Clause grants the federal government the power to enforce treaties, establish a central bank, and pass legislation without interference from the states. Notably, it does not empower the federal government to review or veto state laws before they take effect. The clause reinforces the concept of dual federalism, where the federal government and the states have distinct and non-overlapping zones of constitutional authority.
The Supreme Court has historically applied the Supremacy Clause to uphold federal supremacy in cases of conflicting laws. For example, in the late eighteenth and early nineteenth centuries, the Court relied on the clause to establish a robust role for the federal government in managing national affairs. This trend continued through the latter half of the nineteenth century, with the Court embracing dual federalism and minimizing instances of conflict between federal and state authority.
In the early twentieth century, the Supreme Court's decisions began to shape the doctrine of field preemption, which holds that some federal legislation implicitly prevents states from enacting laws on the same subject. However, it is important to note that federal law traditionally does not preempt state law in areas traditionally regulated by states unless Congress's intent to do so is explicit.
The Supremacy Clause has been a subject of controversy, particularly during debates over the ratification of the Constitution. Advocates of federal supremacy prevailed, and the Constitution was ratified in 1788 with the inclusion of the Supremacy Clause. This clause is considered a cornerstone of the United States' federal political structure, ensuring the underlying priority of federal authority within the boundaries outlined by the Constitution.
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Federal non-interference in state laws
In the United States, the federal government has the power to enforce laws that apply to all US citizens. However, there are instances where states have legalized certain activities that contradict federal laws. This discrepancy between state and federal laws has led to questions about the authority of states to legalize activities prohibited by federal law.
The area of law that addresses conflicts between state and federal laws is known as the Supremacy Clause of the US Constitution. The Supremacy Clause establishes the principle that federal law generally takes precedence over state law in cases of conflict. However, in practice, the federal government has not always strictly enforced its laws when states have chosen to legalize activities that are prohibited at the federal level.
For example, in the case of cannabis legalization, several states have legalized medical and recreational cannabis use, which contradicts federal law. The federal government has taken a position of non-interference in state cannabis laws, as long as certain conditions are met, such as robust state regulation and prevention of marijuana revenue funding gangs or supporting distribution to minors. This non-interference policy has been formalized in documents such as the Cole memo, issued by the Department of Justice in 2013, which advised federal prosecutors to deprioritize marijuana enforcement in states with legalized cannabis.
Additionally, the Tenth Amendment's "anti-commandeering rule" prohibits Congress from requiring states to enforce federal marijuana laws. The federal government has not alleged in court that federal laws supersede state medical marijuana laws, and has even argued in favor of dismissing lawsuits claiming that state marijuana laws are preempted by federal legislation.
In other cases, such as the legalization of prostitution in certain counties in Nevada, the federal government has also chosen not to enforce its laws, creating a gray area in the enforcement of federal laws when states choose to legalize activities that are prohibited at the federal level.
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State laws contradicting federal laws
In the United States, the federal government and state governments sometimes pass laws that contradict each other. This is possible because, while federal law applies to all US citizens, state laws only apply to citizens within a particular state.
The area of law that addresses possible conflict between state and federal laws is generally referred to as the Supremacy Clause of the US Constitution, a key provision appearing in Article VI. The Supremacy Clause establishes federal law as the "trump card" over state laws. However, in practice, the situation is more complex, and the federal government does not always intervene to enforce its laws when they conflict with state laws. For example, the federal government has not cracked down on states that have legalized marijuana for medical or recreational use, despite the fact that marijuana is still classified as a Schedule I Drug under federal law. This non-interference policy was formalized in the Department of Justice's 2013 Cole Memo, which advised federal prosecutors to not prioritize marijuana enforcement unless states failed to provide "robust" regulation. The memo was rescinded in 2018, but the non-enforcement practice has continued.
Another example of state laws contradicting federal laws is prostitution, which is illegal according to US federal law. However, in Nevada, certain counties with a population of less than 700,000 people can legally have brothels, and the federal government has not enforced the doctrine of pre-emption in these counties.
The question of whether federal law supersedes state law is ultimately a question of Congressional intent. The CSA makes it clear that it only preempts state laws under very limited circumstances, such as when it is "physically impossible" to comply with both state and federal law.
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State workers' involvement in sales
In the United States, the federal government may want states to make certain things illegal, but it doesn’t happen automatically, and the federal government is limited in the ways it can make states comply. For example, while marijuana is still classified as a Schedule I Drug under federal law, treating it as one of the most serious and deadly drugs, it is legal in 39 of 50 states for medical use and 24 states for recreational use. Federal law is generally not enforced against the possession, cultivation, or intrastate distribution of cannabis in states where such activity has been legalized.
State workers themselves are not directly involved in sales or cultivation but rather administer licenses for private companies. This is likely because states do not prevent federal authorities from enforcing their own laws, and federal law applies to all U.S. citizens.
State workers in sales, or retail sales workers, sell merchandise, spare and replacement parts, and equipment to customers. They usually work in clean, well-lit stores and are employed full-time, although schedules may vary with evening and weekend work sometimes required. The median hourly wage for retail salespersons was $16.62 in May 2024, and about 582,200 openings for retail sales workers are projected each year on average over the decade.
Most of the openings are expected to result from the need to replace workers who transfer to different occupations or exit the workforce. As sales workers gain experience and seniority, they often take on greater responsibility and may be given a choice of departments in which to work. Such opportunities often mean moving to positions with higher potential earnings and commissions.
Some states require licensure for selected retail sales occupations, such as car salespersons. Aspiring salespersons may be required to pass an exam, complete a background check, or meet other conditions for employment.
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Frequently asked questions
The Supremacy Clause of the US Constitution addresses possible conflicts between state and federal laws. While state laws only apply to citizens within a particular state, federal law applies to all US citizens.
In 2013, the Department of Justice released a memo stating that state-legalized marijuana sales remained illegal under federal law, but advised federal prosecutors to not prioritize marijuana enforcement unless states failed to provide "robust" regulation.
Marijuana is classified as a Schedule I Drug under federal law, treated as one of the most serious and deadly drugs. However, 39 out of 50 states have legalized medical marijuana, and 24 states have legalized it for recreational use.
In theory, a state law that goes against federal law is null and void. However, in practice, there is more flexibility. The federal government has not always intervened when a state law contradicts federal law, especially if it does not affect national security or international relations.
