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When State and Federal Laws Conflict, Who Wins?

March 10, 2018
US Attorney General Jeff Sessions, seen here in a Feb. 22 White House meeting between President Donald Trump and state and local officials to discuss school safety, sued California this week over state immigration laws that he claims violate the Constitution's supremacy clause. (Evan Vucci/AP)
US Attorney General Jeff Sessions filed a blockbuster lawsuit against California this week, arguing that so-called sanctuary laws passed by the state Legislature conflict with federal immigration laws.

Federal law is “the supreme law of the land,” Sessions told a crowd of about 250 law enforcement officials in Sacramento on Wednesday, lashing out at state and local leaders for taking actions that “directly and adversely impact the work of our federal officers.”

“You can be sure,” he vowed, “I’m going to use every power I have to stop them.”

While the lawsuit centers on immigration, the central question parallels one familiar to the cannabis community: When state law says one thing and federal law says another, who wins?

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The State–Federal Fight

It’s a question that has loomed over cannabis for decades, stretching back at least to the passage of California’s first medical marijuana law, in 1996. But with nine states having legalized cannabis for adult use and dozens more having passed medical cannabis laws, the conflict today is clearer than ever.

“The federal government could go into any state right now and arrest any individual growing marijuana.”
John Hudak, Brookings Institution

Under federal law, all forms of cannabis remain illegal. It’s still a Schedule I controlled substance, more tightly regulated than opium or cocaine. When Sessions claims cannabis “is illegal in the United States—even in Colorado, California, and everywhere else in America,” he’s right. But, of course, that’s not the whole story. Many states now license, regulate, and tax state-legal cannabis activity, and that’s where things get hairy.

Legal on one level, outlawed on another. To try to solve this tug-of-war, some people point to the US Constitution’s supremacy clause, which says federal law takes precedence over state laws. But according to legal scholars and policy experts, it’s not nearly that simple.

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Conflicts on Conflicts

Although the supremacy clause can help courts make sense of conflicting laws, judges have to balance its claims against other constitutional considerations, says Karl Manheim, a constitutional law professor at Loyola Law School in Los Angeles.

“As is often the case in constitutional law, we have an equal and opposite constitutional command in the 10th Amendment, which says that states have a certain degree of autonomy and that Congress cannot commandeer state processes,” Manheim said. The anti-commandeering doctrine, as it’s known, limits the supremacy clause by prohibiting the federal government from forcing states to do its bidding.

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Occasionally the conflict is obvious and easy to spot. If Congress were to pass a law expressly barring states from taxing the sale of silly hats, a state law establishing a tax on silly hats would clearly violate the supremacy clause. On the other end of the spectrum, if Congress were to ban silly hats outright, states could freely pass laws preventing local police departments from enforcing that federal law. “As a general principle,” Manheim said, “states don’t have any constitutional obligation to cooperate with any federal agency.”

But more often than not, the conflicting constitutional provisions create a gray area that courts must navigate on a case-by-case basis.

“The general principle is the same across the board,” Manheim said, “but it’s all in the details. And that is: Is there a conflict?”

Well? Is There?

Exactly what constitutes a conflict is open to interpretation. Much of it hinges on whether or not state law actually hinders federal enforcement efforts.

Suppose a state passes a legalization law like the one Vermont recently adopted. Possession, consumption, and personal cultivation of cannabis are all allowed under state law, but there’s no provision for commercial sales. In effect, the state removed all penalties for certain cannabis activity. That’s relatively unlikely to violate the supremacy clause, because the state isn’t taking any steps to prevent US officials from enforcing federal law.

Other states have opted to license and tax legal cannabis businesses, which could raise separate conflict questions. Is it OK for those states to sanction and earn tax revenue from federally illegal activity? Further conflict questions would arise if a state were to actively impede the work of federal authorities, for example by passing a law to prevent federal investigators from entering state-licensed dispensaries.

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John Hudak, a senior fellow at the Brookings Institution who studies cannabis policy, says that even in states that have legalized adult-use cannabis, federal officials are still free to pursue charges against state-legal actors.

“The federal government could go into any state right now and arrest any individual growing marijuana,” he said. “There is no question the government has the authority to do that.”

What’s more, federal prosecutors are able to prevent cannabis defendants from arguing in court that their activity is allowed under state law.

“In a case against a recreational grower or distributor or whatever, the status of state law is entirely irrelevant and has no place in a federal proceeding. A federal judge will not allow evidence of state legality,” Hudak said. (Note: This doesn’t apply to medical cannabis, at least for the moment. A federal spending provision set to expire later this month, known as the Rohrabacher-Blumenauer amendment, currently prohibits the Justice Department from prosecuting state-compliant medical cannabis patients and providers.)

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So far, legal-cannabis states have also been careful to avoid passing laws intended to block federal enforcement efforts, says Vanderbilt Law School professor Robert Mikos, an expert on federalism and cannabis laws. Such laws would be especially vulnerable to supremacy-clause challenges.

“States forthrightly acknowledge, ‘Hey, the fact we made this legal doesn’t do you any good under federal law,’” Mikos said. “They haven’t sought out that sort of direct confrontation with the federal government.”

Questions for the Court

If a conflict can’t easily be solved by referring to the Constitution’s supremacy clause or anti-commandeering doctrine, judges’ jobs get harder. They must refer to existing court precedent and then extend that to the dispute at hand.

“The important thing to recognize with preemption is it basically nullifies state law.”
Prof. Robert Mikos, Vanderbilt Law School

Here’s where immigration and cannabis part ways, said Manheim at Loyola Law School. Unlike most other areas of law, immigration is generally considered an element of foreign policy—something in which, courts have recognized, the federal government has a special stake.

“Ordinarily when there is a conflict between state and federal law and there is some question as to whether the state law is obstructing or preempted by the federal law, the tie usually goes to the state,” Manheim said. “The rule works the other direction when we’re talking about things of paramount federal importance, and immigration is one of those.”

While some past rulings have determined that cannabis is of dominant federal interest, he said, that’s not as well established as it is with immigration. That means states may have more leeway in passing cannabis laws, rather than immigration laws, that seem to run counter to federal policy.

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What Would the Feds ‘Win’?

Even if the Justice Department were to successfully challenge a state law that legalized and regulated cannabis, it’s not clear officials would have much to show for it. “The important thing to recognize with preemption is it basically nullifies state law,” said Mikos at Vanderbilt. “It doesn’t replace it with what it was before.”

If a court were to overturn California’s cannabis law, he explained, “that doesn’t mean you roll back the clock to 2015 and say, ‘All right, now prohibition is still on the books for adult-use marijuana.’”

In other words, challenging a state legalization law could actually undermine the objectives of prohibitionists, Mikos said. Overturning California’s cannabis laws would remove the state’s ability to regulate the cannabis industry, but it wouldn’t dissolve the industry or reinstate prior criminal laws against cannabis.

Even if Jeff Sessions were to topple state cannabis laws, it’s possible that his only prize would be throwing a multibillion-dollar industry into chaos. Mikos said, “It’s hard to imagine Congress would be happy with that outcome.”

Ben Adlin's Bio Image

Ben Adlin

Ben Adlin is a senior editor at Leafly who specializes in politics and the law. Follow him on Twitter: @badlin

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  • Rod is on the Gas

    My take from this is…Heritage California growers might realize that Prop 64 is so counter-productive to their survival, that nullifying state law sounds attractive and logical. Sessions can correct a huge political mistake in California.

    The CA tax laws and grower permitting are being equated to Sherman’s march to the sea. Destroy the existing culture and replace with excess taxation.

    • badlin

      I’ve heard this take before, and while I see the allure, frankly it sounds a bit short-sighted to me. California’s longtime growers (and many other cannabis businesses) don’t like a lot about Prop. 64. I hear that. But overturning the law, or portions of it, would leave behind a comparatively unregulated system. I think it’s likely that would provoke a response from state and local lawmakers, and I’m not sure the industry would be any happier with the result.

      Look at what happened in Long Beach several years ago. Two would-be dispensary operators weren’t among those chosen for a local license, so they sued, arguing the city’s issuance of permits violated federal law. While the case ultimately petered out without creating new precedent, the trial court initially found that affirmative regulations—things along the lines of permitting, testing requirements, and other hands-on involvement by the city—were preempted by federal law. Almost immediately after that decision, Long Beach banned dispensaries altogether. Officials concluding it’d be easier to just enforce a ban than it would be to allow businesses to operate under state law without the ability to regulate them. (For what it’s worth, dispensary bans at the time were already being challenged in state courts, sometimes successfully and sometimes not.)

      If you’re interested, I wrote about this case at a previous publication, and the ACLU of Northern California posted it here: https://www.aclunc.org/blog/supreme-court-wont-decide-if-federal-law-pre-empts-local-medical-pot-regulations

      If that’s a roll of the dice that some industry members would be willing to chance, I guess I wouldn’t be surprised. But I’d at least hope people recognize that it would have uncertain consequences.

      • Jeffrey Avery

        sounds like “path of least resistance,,,,instead of standing for the people,by the people

    • Rod is on the Gas

      Badlin, great article and super reply, thanks.

      My attempts to protect or coddle the old timers of California’s cannabis culture is real. Many of us are 70+ years old and have been involved more than 50 years. The industry (whatever that means) can fail. I don’t mind. Cannabis and Heritage growers have never failed. Given a small plot of land and some fair law enforcement we will continue. Prop 64 is unfair.

      Legalization has made their demands of 45% taxation in addition to uncontrolled commercial permits. He who ponies-up the fees can grow 500 acres legally in California.

      Steam-rolling under the growers who made cannabis available for the past 70+ years is short-sighted. Permitting by bribe is a horror situation.

      Dispensaries and mega-growers are the experimental portion of legalization. Their energy is best described as for the money.

  • Aloha. A few things come to my mind reading this.

    1.) The federal government’s Schedule 1 classification of “marijuana” is a fraud and intellectually dishonest. That SHOULD count for something.

    2.) The word “marijuana”, or worse … “marihuana” are mongrel, slang terms that are prejudicial because they’re rooted in negative racial stereotypes. “Marijuana” is not the name of a plant. Anyone arrested and charged with a “marijuana” crime is virtually guaranteed to be convicted because the word used is prejudicial, it’s pre-judged in the negative. No jury can be impartial, or fair when presented with that word.

    3.) Government has no rightful jurisdiction to prohibit Cannabis, or any other plant bearing seeds from We the people. Drugs maybe, but plants no. They are two vastly different things. “You can make a drug from a plant, but you can’t make a plant from a drug.”

    4.) The separation of church and state needs to include the separation of God given, natural plants from artificial, man made drugs. Full access to all the plants bearing seeds is part of our inheritance as Homo sapiens born on planet Earth.

    5.) The cultivation, possession and use of Cannabis as a spiritual sacrament deserves First Amendment religious freedom protection.

    6.) Evidence exists to show that Cannabis, or kaneh bosem is an important ingredient in the holy anointing oil of Moses and the christening oil of Jesus. See Exodus 30:23’s ‘fragrant cane’. Messiah = anointed. Christ = anointed. Mahdi = anointed. Christian = an anointed one. Anti-Christ = against anointing. Messianic age = the age of anointing. Return of Christ = return of anointing. Cannabis MUST be legal. 🙂

    https://uploads.disquscdn.com/images/aed06853017d666d5ff7109a8577395256bd20a343faf9aef8b8d620422ea573.jpg https://uploads.disquscdn.com/images/eee5aef42b8786e336919c4dc1cde58463f714ff678a947c5be94eacd1b77e3c.jpg https://uploads.disquscdn.com/images/b7c6b419950572f287087ab356e65016b2a9e5a6e6033edd3f84bf978280c590.jpg

    Let’s repeal “marijuana” prohibition and let freedom ring! Remember; we can only be the land of the free if we’re first the home of the brave.
    Be brave. Thank you.

    Roger and Share Christie
    Hilo, Hawai’i

    http://www.thc-ministry.org
    http://www.the-last-marijuana-trial.com
    http://www.peacefulsky.org

    • Great points, Mr. Christie. Bravo.
      The general dishonesty behind Marijuana laws renders them null and void to any honest person.

  • Dante-the-cat

    So, cannabis is legal and illegal at t’he same time?
    America, you crazy.

  • Liz Neil

    when the feds make it legal, they will tax the sh*t out of it.

  • Sy Katus

    To persecute people because of their way of life is genocide. I am sure genocide is against the law. Why not severely prosecute the fed drug war enforcers under those laws. Most of those persons are eligible for life in prison for the laws they violate and the dreadful harm they inflict. The war on drugs also breaches free fair enterprise laws like the Sherman act that says any action or conspiracy to influence trade besides free fair trade competition is prosecute able with up to 5 years in prison for each offense. “If a law is not worthy of obedience the proper course may be resistance.” John Locke.
    http://chn.ge/2xcotqo
    When the UN declaration of Human Rights permitted enforcement of morality, (instead of only when a person or persons infringe unjustly without adequate compensation into an other or others life liberty or property), it lost legitimacy as a source of reason and justice in the world. This is clearly visible in many of its findings and engagements in the world’s troubles and politics.

  • Etidorhpa

    Marijuana is the gateway to homelessness and liberalism. Just look how crappy Seattle and San Francisco became.

    • Jeffrey Avery

      too simple minded of a statement to even,debate and or rebut….try some long thoughts next time,instead of a knee jurk ,off the cuff moronic comments…thank you and god bless,,,,,,ps maybe you should ask for wisdom and compassion

    • 😫 doh!

  • TOBY T

    If legal cannabis businesses have to file income tax returns and in some way either pay their taxes weekly, monthly quarterly or whenever. Then isn’t the federal government breaking it’s own laws by taking money from sources that the federal government views as illegal?

  • Keen

    One thing we can all agree on: Those involved in this discussion seem to be respectful, lucid, and knowledgeable in both the issues and the use of punctuation! No trolls, flames, or put simply, no assholes. If this is typical of the effects of cannabis, we need more of it.

  • Ilmira Abdullina

    This is insane. What about all current Marijuana Laws in the U.S?
    http://www.drugpolicy.org/issues/marijuana-legalization-and-regulation

  • Glenn Mayo

    We don’t have to dredge up all kinds of manufactured legal arguments, because the simple fact is that weed prohibition (or legalization) is a STATE matter under the 10th amendment. The constitution does not give the federal gov’t authority over such matters, and the amendment states plainly that all powers not explicitly delegated to the United States( meaning, the federal gov’t) are left to the states or to the People themselves. Therefore, Whether you’re in favor of prohibition or not, the constitution is clear: This is a matter that falls under STATE jurisdiction not federal. Therefore the federal ban is illegal under the 10th amendment. we wouldn’t have these difficulties and arguments if we’d just actually obey the constitution!

    • Very true. If the lessons taught to us by the 18th and 21st amendments were heeded we wouldn’t have any of these problems.
      Problem is, law enforcement in America, both local and Federal, have actively rejected the US Constitution for a long time now. GW Bush and Barack Obama both referred to that supreme document as “a piece of paper”. And that’s how it’s viewed by control freaks everywhere.

  • Good article. The answer remains to be seen. Personally, I’m not going to worry about it. That’s for politicians to deal with. I’ve been smoking pot for forty-five years and I will continue to do so regardless.

    We are not bound by laws that are based on misinformation and outright lies.