4 ms·

>Federal statues also supersede state law, under the supremacy clause of the constitution. How does that mesh with the states legalizing marijuana?

by imh 10y ago

gozur88 10y ago
Technically, you can be arrested and charged with federal possession of a schedule one drug if you have any amount of marijuana in any state, including those states which have made it legal under state law. That's potentially a year in the federal pen. State legalization of marijuana just means you can't be prosecuted under state law.
jeremyjh 10y ago
DOJ is not widely enforcing federal drug laws against citizens complying with state laws - at the direction of the current administration - but they could do so in the future.
mikeryan 10y ago
Not well. The Feds have chosen not to enforce the laws in the states which have legalized marijuana. In fact a lot of marijuana laws have suffered from selective enforcement. Whether that continues with the incoming administration is a huge question. I was listening to the Freakanomica podcast last week and it was discussing the power of the president and one commenter said that one of the presidents "real" powers is selecting which laws to enforce (via their Attorney General) there could be some huge battles coming up. Ironically if the Feds choose to enforce the federal laws in states which have legalized marijuana it would be contrary to the emphasis on states rights eschewed by most conservatives.
- singlow 10y ago
  I think you mean "espoused" not "eschewed".
  - Noseshine 10y ago
    You opened a can of worms for me. As a non-native (but very comfortable) English speaker I wasn't quite sure about the pronunciation of "eschew" because I can't remember to have ever used it, or when I last heard it. https://stancarey.wordpress.com/2016/02/19/how-do-you-pronounce-eschew/ https://stancarey.wordpress.com/2016/02/19/how-do-you-pronou... Turns out there is a multitude of pronunciations to choose from.
    - umanwizard 10y ago
      Native English speakers are in the same boat a lot of the time. My reading vocabulary is a strict superset of the words I know how to pronounce, and I suspect the same is true for everyone who speaks a language with a non-regular writing system.
justinator 10y ago
There's a BIG problem with banking, as in: pot businesses can't open a bank account for the business, as the you hit Federal laws about distributing funds for Federally illegal business practices (selling drugs that are illegal to sell under Federal law), making pot shops basically cash only. Which is absolute madness.
bmelton 10y ago
This is some relevant reading from a credible authority: https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/11/26/federalism-the-constitution-and-sanctuary-cities/?utm_term=.a5ab02a4853b https://www.washingtonpost.com/news/volokh-conspiracy/wp/201... The short version is that the federal government has the power to pass laws, but under federalism, the states are not obligated to help the federal government enforce those laws. That's how sanctuary cities and the like are born -- by states simply refusing to assist the federal government in their endeavors. State marijuana legalization is a slightly different animal. On the one hand, they're exercising their anti-commandeering power (by refusing to arrest marijuana users). On the other hand, they're directly defying the supremacy clause by passing laws contrary to the federal laws, which is a step beyond anti-commandeering. It hasn't been tested in court, but a likely argument would be one based on Marbury v Madison, in which the relevant portion is that congress may not pass an unconstitutional law. American jurisprudence tells us that an unconstitutional law need not be enforced by any court, officer or person, as an unconstitutional law is not a law at all. The states, if challenged, could assert that a federal ban on marijuana is unconstitutional on its face as it flies in the face of both the 9th and 10th amendments (and possibly the 5th, with maybe a sprinkling of the 14th, depending). Of course, that hasn't happened, and this is all conjecture, and it's a crapshoot as to whether or not it would work, but it's not impossible that the federal government hasn't exerted too much top down pressure on early marijuana states because they wouldn't want to chance the precedent of losing.
- imh 10y ago
  >The states, if challenged, could assert that a federal ban on marijuana is unconstitutional on its face as it flies in the face of both the 9th and 10th amendments (and possibly the 5th, with maybe a sprinkling of the 14th, depending). This part sounds critical, but I don't quite follow. If you're willing to expand on that, I'd love to hear about it.
  - bmelton 10y ago
    I'll try to put this as straightforwardly as possible, but it's a meandering topic at best. The gist of what I'm referring to is found here[1], so you should probably stop and read that first. Past that, the relevant things are two main doctrines, the first is the 9th[2] and 10th[3] amendments collectively, and the other is "enumerated powers[4]". So, the general principle is that 1) Congress doesn't have the power to do anything that they are not expressly authorized to do by the constitution, or that is not obviously implied by an enumerated power (for example, if I expressly enumerated you the power to apportion the jelly beans, it would be implied that you could count the jelly beans, audit the jelly beans, etc.) Because congress is not expressly enumerated any power to make marijuana illegal, the states (if challenged) could assert that they have neither an enumerated or implied power to do so, and the laws that they made to illegalize marijuana consumption were not constitutional to begin with. Under the interstate commerce clause[5], they may have the ability to 'regulate' the sale and/or distribution of marijuana, but banning it for private consumption may be a bridge too far considering... The Ninth Amendment, which states "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people," combined with the Tenth Amendment, which states "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people," means that the powers of the federal government should not be used to take powers away from the citizenry, and that any powers not delegated to the federal government (expressly or implied) are reserved to the states or the people. It is this last clause that allows states to decline orders by the federal government where are not obviously granted those powers to the federal government by the constitution. Put simply, the general position is that the federal government has supremacy on matters that the constitution says it should, but should defer to the people or the states on powers the constitution doesn't mention. Because the federal government doesn't have the power to ban marijuana, then the states could argue that, and assert their own soveriegnty on its regulation. Because the states would be granting more rights to the people than the federal government in this scenario, and because the burden of enforcing it would be exclusive to the individual states, they would have a pretty good claim on grounds of federalism. [1] - http://www.constitution.org/uslaw/16amjur2nd.htm http://www.constitution.org/uslaw/16amjur2nd.htm [2] - https://en.wikipedia.org/wiki/Ninth_Amendment_to_the_United_States_Constitution https://en.wikipedia.org/wiki/Ninth_Amendment_to_the_United_... [3] - https://en.wikipedia.org/wiki/Tenth_Amendment_to_the_United_States_Constitution#Text https://en.wikipedia.org/wiki/Tenth_Amendment_to_the_United_... [4] - https://en.wikipedia.org/wiki/Powers_of_the_United_States_Congress https://en.wikipedia.org/wiki/Powers_of_the_United_States_Co... [5] - https://en.wikipedia.org/wiki/Commerce_Clause https://en.wikipedia.org/wiki/Commerce_Clause
dragonwriter 10y ago
States legalizing marijuana are simply removing separate state criminal prohibitions on marijuana and deciding not to spend resources helping the Feds enforce their prohibition. It is still illegal under federal law, though the current administration is presently not prioritizing enforcement of federal law regarding marijuana when the offense is within the scope permitted under state law.

>Federal statues also supersede state law, under the supremacy clause of the constitution. How does that mesh with the states legalizing marijuana?

by imh 10y ago

>Federal statues also supersede state law, under the supremacy clause of the constitution. How does that mesh with the states legalizing marijuana?

gozur88 10y ago

Technically, you can be arrested and charged with federal possession of a schedule one drug if you have any amount of marijuana in any state, including those states which have made it legal under state law. That's potentially a year in the federal pen. State legalization of marijuana just means you can't be prosecuted under state law.

jeremyjh 10y ago

DOJ is not widely enforcing federal drug laws against citizens complying with state laws - at the direction of the current administration - but they could do so in the future.

mikeryan 10y ago

Not well. The Feds have chosen not to enforce the laws in the states which have legalized marijuana. In fact a lot of marijuana laws have suffered from selective enforcement. Whether that continues with the incoming administration is a huge question. I was listening to the Freakanomica podcast last week and it was discussing the power of the president and one commenter said that one of the presidents "real" powers is selecting which laws to enforce (via their Attorney General) there could be some huge battles coming up. Ironically if the Feds choose to enforce the federal laws in states which have legalized marijuana it would be contrary to the emphasis on states rights eschewed by most conservatives.

singlow 10y ago
I think you mean "espoused" not "eschewed".
- Noseshine 10y ago
  You opened a can of worms for me. As a non-native (but very comfortable) English speaker I wasn't quite sure about the pronunciation of "eschew" because I can't remember to have ever used it, or when I last heard it. https://stancarey.wordpress.com/2016/02/19/how-do-you-pronounce-eschew/ https://stancarey.wordpress.com/2016/02/19/how-do-you-pronou... Turns out there is a multitude of pronunciations to choose from.
  - umanwizard 10y ago
    Native English speakers are in the same boat a lot of the time. My reading vocabulary is a strict superset of the words I know how to pronounce, and I suspect the same is true for everyone who speaks a language with a non-regular writing system.

justinator 10y ago

There's a BIG problem with banking, as in: pot businesses can't open a bank account for the business, as the you hit Federal laws about distributing funds for Federally illegal business practices (selling drugs that are illegal to sell under Federal law), making pot shops basically cash only. Which is absolute madness.

bmelton 10y ago

This is some relevant reading from a credible authority: https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/11/26/federalism-the-constitution-and-sanctuary-cities/?utm_term=.a5ab02a4853b https://www.washingtonpost.com/news/volokh-conspiracy/wp/201... The short version is that the federal government has the power to pass laws, but under federalism, the states are not obligated to help the federal government enforce those laws. That's how sanctuary cities and the like are born -- by states simply refusing to assist the federal government in their endeavors. State marijuana legalization is a slightly different animal. On the one hand, they're exercising their anti-commandeering power (by refusing to arrest marijuana users). On the other hand, they're directly defying the supremacy clause by passing laws contrary to the federal laws, which is a step beyond anti-commandeering. It hasn't been tested in court, but a likely argument would be one based on Marbury v Madison, in which the relevant portion is that congress may not pass an unconstitutional law. American jurisprudence tells us that an unconstitutional law need not be enforced by any court, officer or person, as an unconstitutional law is not a law at all. The states, if challenged, could assert that a federal ban on marijuana is unconstitutional on its face as it flies in the face of both the 9th and 10th amendments (and possibly the 5th, with maybe a sprinkling of the 14th, depending). Of course, that hasn't happened, and this is all conjecture, and it's a crapshoot as to whether or not it would work, but it's not impossible that the federal government hasn't exerted too much top down pressure on early marijuana states because they wouldn't want to chance the precedent of losing.

imh 10y ago
>The states, if challenged, could assert that a federal ban on marijuana is unconstitutional on its face as it flies in the face of both the 9th and 10th amendments (and possibly the 5th, with maybe a sprinkling of the 14th, depending). This part sounds critical, but I don't quite follow. If you're willing to expand on that, I'd love to hear about it.
- bmelton 10y ago
  I'll try to put this as straightforwardly as possible, but it's a meandering topic at best. The gist of what I'm referring to is found here[1], so you should probably stop and read that first. Past that, the relevant things are two main doctrines, the first is the 9th[2] and 10th[3] amendments collectively, and the other is "enumerated powers[4]". So, the general principle is that 1) Congress doesn't have the power to do anything that they are not expressly authorized to do by the constitution, or that is not obviously implied by an enumerated power (for example, if I expressly enumerated you the power to apportion the jelly beans, it would be implied that you could count the jelly beans, audit the jelly beans, etc.) Because congress is not expressly enumerated any power to make marijuana illegal, the states (if challenged) could assert that they have neither an enumerated or implied power to do so, and the laws that they made to illegalize marijuana consumption were not constitutional to begin with. Under the interstate commerce clause[5], they may have the ability to 'regulate' the sale and/or distribution of marijuana, but banning it for private consumption may be a bridge too far considering... The Ninth Amendment, which states "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people," combined with the Tenth Amendment, which states "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people," means that the powers of the federal government should not be used to take powers away from the citizenry, and that any powers not delegated to the federal government (expressly or implied) are reserved to the states or the people. It is this last clause that allows states to decline orders by the federal government where are not obviously granted those powers to the federal government by the constitution. Put simply, the general position is that the federal government has supremacy on matters that the constitution says it should, but should defer to the people or the states on powers the constitution doesn't mention. Because the federal government doesn't have the power to ban marijuana, then the states could argue that, and assert their own soveriegnty on its regulation. Because the states would be granting more rights to the people than the federal government in this scenario, and because the burden of enforcing it would be exclusive to the individual states, they would have a pretty good claim on grounds of federalism. [1] - http://www.constitution.org/uslaw/16amjur2nd.htm http://www.constitution.org/uslaw/16amjur2nd.htm [2] - https://en.wikipedia.org/wiki/Ninth_Amendment_to_the_United_States_Constitution https://en.wikipedia.org/wiki/Ninth_Amendment_to_the_United_... [3] - https://en.wikipedia.org/wiki/Tenth_Amendment_to_the_United_States_Constitution#Text https://en.wikipedia.org/wiki/Tenth_Amendment_to_the_United_... [4] - https://en.wikipedia.org/wiki/Powers_of_the_United_States_Congress https://en.wikipedia.org/wiki/Powers_of_the_United_States_Co... [5] - https://en.wikipedia.org/wiki/Commerce_Clause https://en.wikipedia.org/wiki/Commerce_Clause

dragonwriter 10y ago

States legalizing marijuana are simply removing separate state criminal prohibitions on marijuana and deciding not to spend resources helping the Feds enforce their prohibition. It is still illegal under federal law, though the current administration is presently not prioritizing enforcement of federal law regarding marijuana when the offense is within the scope permitted under state law.