Gavin Howe
Marijuana legalization is a contentious issue in the United States, with a growing number of states legalizing its use, both medicinally and recreationally, despite federal laws prohibiting its use and classifying it as a Schedule I Drug. This has led to a complex legal situation where state and federal laws clash, and has brought the Supremacy Clause of the US Constitution, which dictates that federal law is the supreme Law of the Land, into sharp focus. However, the Tenth Amendment limits federal preemption of state laws, and the federal government has so far taken a position of non-interference in state marijuana regulation, as long as specific federal interests are not affected. This has resulted in an awkward stalemate, with the federal government neither supporting nor actively enforcing cannabis regulations, and states creating their own rules for cultivation, licensing, and taxation.
| Characteristics | Values |
|---|---|
| State laws only apply to citizens within a particular state | Federal law applies to all U.S. citizens |
| Supremacy Clause of the US Constitution | Federal law supersedes state law |
| The 10th Amendment | Limits what state laws can be federally preempted |
| Dual sovereignty | States can act as "laboratories of democracy" |
| Federal enforcement | Federal prosecutions of individuals possessing marijuana are rare |
| Federal restriction on interstate commerce | Marijuana cannot cross state lines |
| Federal tax code | Marijuana businesses are classified as drug traffickers |
| Federal non-interference | The Department of Justice's 2013 Cole Memo |
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What You'll Learn
The Supremacy Clause
However, the US system of government is one of dual sovereignty, with Congress's ability to compel states to enact certain laws limited by the Tenth Amendment. While federal law prohibits the cultivation, distribution, and possession of marijuana, the Tenth Amendment's "anti-commandeering rule" prohibits Congress from requiring state agents to enforce federal marijuana laws. This means that states are free to enact their own marijuana laws, and the federal government cannot mandate that states actively support or participate in enforcing federal marijuana laws.
The area of law that addresses the conflict between state and federal marijuana laws is referred to as the doctrine of "preemption" within the Supremacy Clause. Preemption states that, in many but not all cases of conflicting laws, federal law supersedes state law. For example, state medical marijuana laws would be preempted if they required someone to violate federal law, such as by requiring state workers to grow or dispense marijuana. However, effective state marijuana laws only regulate private individuals who choose to grow or dispense marijuana.
So far, the federal government has taken the position that state regulatory activity does not violate the Supremacy Clause. This is likely because states do not prevent federal authorities from enforcing their own laws, and state workers are not directly involved in cultivation or sales. In 2013, the Department of Justice issued the Cole memo, which advised federal prosecutors to not prioritize marijuana enforcement unless states failed to provide robust regulation. While the Cole memo was rescinded in 2018, it demonstrates that the federal government has allowed states to chart their own paths regarding marijuana legalization.
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State laws don't require citizens to enforce federal laws
In the United States, federal law applies to all citizens, whereas state laws only apply to citizens within a particular state. Marijuana laws, for example, "clash" with U.S. federal law, resulting in a situation where a person can act in compliance with one set of marijuana laws while violating the other.
The Supremacy Clause of the US Constitution addresses possible conflicts between state and federal laws. Within the Supremacy Clause is the doctrine of "preemption," which states that federal law supersedes state law in many (but not all) cases of conflicting laws. However, the federal government has taken the position that state regulatory activity does not violate the Supremacy Clause. This is because states do not prevent federal authorities from enforcing their laws, and state workers are not directly involved in the cultivation or sale of marijuana.
The anti-commandeering doctrine prevents the federal government from taking control of state and local law enforcement offices and forcing them to enforce federal laws. The federal government cannot directly force state and local policing of its policies and laws. Instead, it influences states to adopt federal laws by withholding federal funds, which are crucial for state budgets.
In Printz v. U.S., the Supreme Court held that a federal law requiring state officials to conduct background checks as part of a federal program violated constitutional principles of state sovereignty. Similarly, in the case of Scalia v. U.S., it was observed that the federal government lacks the power to force states to administer a federal regulatory scheme. According to Scalia, separation of powers principles are violated when Congress bypasses the federal executive branch by requiring state executives to perform federal law enforcement functions.
State enforcement of federal law authorizes state actors to enforce the laws of a different sovereign. It empowers a different breed of state representatives, such as elected attorneys general, who are independent from the state legislature and governor and may represent different constituencies. State enforcement is largely decentralized, and states act on behalf of interests that may differ significantly from those of federal enforcers.
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Federal government hasn't enforced its laws in some states
The federal government has not enforced its marijuana laws in some states, allowing them to act in accordance with their own state laws. This is due to the federal government's limited ability to make states comply with its laws. While federal law applies to all US citizens, the federal government has not prevented states from creating their own marijuana laws and has not enforced its own laws in states that have legalized marijuana.
In 1996, California voters decided to create an exception to their state marijuana possession law for residents who met certain medical requirements, establishing the first state medical marijuana law in the United States. While the federal government still considered possession by these individuals illegal, California was not required to keep possession illegal. Over the years, other states have followed California's lead, implementing rules for cultivation, licensing systems, and taxes for those who grow and sell marijuana.
The federal government's non-enforcement of its marijuana laws in some states is also due to the interpretation of the Supremacy Clause of the US Constitution, which states that in many (but not all) cases of conflicting laws, federal law supersedes state law. The federal government has taken the position that state regulatory activity does not violate the Supremacy Clause, as states do not prevent federal authorities from enforcing their own laws, and state workers are not directly involved in the cultivation or sale of marijuana.
Additionally, the Tenth Amendment's "anti-commandeering rule" prohibits Congress from forcing states to enforce federal marijuana laws. The federal government has never alleged in court that federal laws preempt state medical marijuana or legalization and regulation laws. In fact, the Department of Justice (DOJ) argued in favor of dismissing a lawsuit claiming Arizona's medical marijuana law was preempted by federal law.
In 2013, the Department of Justice released "the Cole memo," which advised federal prosecutors to not prioritize marijuana enforcement unless states failed to provide "robust" regulation. The memo stated that federal law enforcement would focus on marijuana revenue that appears to fund gangs, support distribution to minors, and transport across state lines, among other priorities. However, in 2018, Attorney General Jeff Sessions rescinded that memo, leaving federal policy uncertain. Despite this, federal prosecutions for marijuana crimes are rare, and the federal government generally chooses not to enforce "minor" marijuana crimes, especially in states where it is legal.
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State laws don't require state workers to violate federal law
State laws and federal laws often come into conflict, especially in the case of marijuana legalization. While marijuana is still classified as a Schedule I Drug under federal law, many states have legalized its medicinal and recreational use. This has led to situations where a person is complying with one set of marijuana laws while simultaneously violating another.
The Supremacy Clause of the US Constitution, a provision in Article VI, addresses the conflict between state and federal laws. Within this clause is the doctrine of "preemption," which states that federal law supersedes state law in most cases of conflict. However, in the case of marijuana legalization, the federal government has not actively enforced its laws in states that have legalized marijuana. This is likely because state workers are not directly involved in the cultivation, sales, or distribution of marijuana, and state regulatory activity does not prevent federal authorities from enforcing their own laws.
The Department of Justice's Cole memo, issued in 2013, advised federal prosecutors to deprioritize marijuana enforcement as long as states implemented "robust" regulations. While the Cole memo was rescinded in 2018, the federal government's approach to marijuana enforcement has remained uncertain. The federal government's position on state marijuana legalization appears to be one of tolerance, as long as states establish strict regulatory systems and prevent marijuana revenue from funding gangs, supporting distribution to minors, or being transported across state lines.
It is important to note that state laws generally do not require state workers to violate federal law. In the case of marijuana legalization, states have created exceptions for possession, cultivation, and sales while also implementing their own regulatory policies. These policies aim to ensure that state workers are not directly involved in activities that violate federal law. As a result, state workers can operate within the framework of state laws without actively breaking federal laws, even if there is a technical conflict between the two sets of laws.
While state laws may provide more rights and protections in certain areas, it is crucial for individuals to understand the complexities of the legal system and seek appropriate legal guidance when navigating situations where state and federal laws come into conflict.
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The Tenth Amendment
The federal government is free to enforce its marijuana laws, but requiring state agents to enforce these laws is unconstitutional. This is known as the anti-commandeering rule, which prohibits Congress from forcing states to enforce federal policies. The anti-commandeering rule was affirmed by the US Supreme Court in 2018 when it overturned a federal law, PASPA, that sought to prohibit states from authorizing sports gambling.
The federal government has generally chosen not to enforce "minor" marijuana crimes, especially in states where it is legal. In 2013, the Department of Justice (DOJ) under President Obama's administration, announced that it would not interfere with marijuana operations that complied with state regulations. This policy was reversed in 2018 under President Trump's administration, but the reversal was largely symbolic as federal prosecutions for marijuana crimes remain rare.
The conflict between federal and state marijuana laws has caused problems beyond uncertainty about criminal liability. Most of the issues relate to commerce and capital, two areas in which the federal government holds full sway. For example, the federal prohibition of marijuana has resulted in hundreds of thousands of annual cannabis arrests, driving sales to the unregulated underground market.
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Frequently asked questions
The Cole Memo was a 2013 statement by the Department of Justice that advised federal prosecutors to not prioritize marijuana enforcement unless states failed to provide "robust" regulation.
The Supremacy Clause is a provision in Article VI of the US Constitution that states that federal law is the "supreme Law of the Land". It contains the doctrine of "preemption", which says that federal law supersedes state law in many but not all cases of conflicting laws.
State marijuana laws do not prevent federal authorities from enforcing their own laws against individuals or businesses. Carefully crafted state medical marijuana programs do not require state workers to grow or dispense marijuana in violation of federal law, they only regulate private individuals who choose to do so.
The federal government has not targeted state-legal marijuana providers in over a decade. This policy of non-enforcement was formalized in the Cole Memo, and has continued even after the memo was rescinded in 2018.
The Tenth Amendment limits what state laws can be federally preempted. While the federal government is free to enforce its own marijuana laws, requiring state agents to enforce federal laws is unconstitutional.
