2 ms·
> This does not mean that it has been made legal in the state- the state does not have the authority to make it legal, as that power is reserved by the federal
by shkkmo 4y ago
> This does not mean that it has been made legal in the state- the state does not have the authority to make it legal, as that power is reserved by the federal government.
> I will concede that "decriminalize" may not be the best word to use, but "legalize" implies that it is legal under state law, which it cannot be.
Not true, most states have laws making marijuana illegal and when state courts prosecute people for marijuana it is under state laws. Only federal courts can prosecute you for violations of federal law. (Edit: not completely true, there are complications and exceptions.)
So when a state legalizes marijuana, it is indeed now legal under the law of that state and state prosecutors and judges can't just switch to applying the federal laws.
The supremacy clause absolutely does not say that states can't pass laws that cover the same subject matter as federal laws. There are a huge number of acts that are illegal under both state and federal law.
The supremacy clause says that federal can pass laws that supercede state laws, either explicitly or implicitly. Given the long history of cooperation between state and federal law enforcement in the war on drugs, combined with the now fairly long standing policy of the decriminalization of intrastate drug commerce in where legal at the state level, would make it really hard to argue that there is any implict intent for our current drug legislation to supercede all state law.
The supremacy clause just means that congress could pass new drug regulations that did supercede state drug laws. That would probably end up getting challenged in the supreme court and set some new precedents so this seems pretty unlikely.
- int_19h 4y agoThe key term here is "commandeering" - basically, US courts have ruled that, under our structure of government as outlined in the constitution, it is illegal for the federal government to force the state governments to enforce federal laws on behalf of the feds. This includes requiring states to pass laws that match federal laws. https://en.wikipedia.org/wiki/Commandeering https://en.wikipedia.org/wiki/Commandeering This provides a convenient upper boundary on the actual power of the federal level - they can ban all they want under the modern expansive implementation of the Commerce Clause, but to get effective enforcement, they either need to allocate enough money on the federal level to cover the entire country, or they need to convince the states to help them enforce.
- shkkmo 4y agoThanks, I wasn't familiar with that term. Being able to reference commandeering will help with explaining why preemption isn't too widely applied on the federal level.