How does the Supremacy Clause affect the power of the states?

At first glance, it might seem that there is a conflict between federal marijuana law and some states’ marijuana laws. After all, the federal government makes it a crime to use marijuana but certain states do not. Isn’t that a conflict?

Table of Contents Show

The doctrine of preemption
Examples of the Supremacy Clause: State vs. Federal
Federalism and Enumerated Federal Powers
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Probably not. Although marijuana is legal in some states the federal government does not require states to pass laws that criminalize marijuana. Also, no state forces anyone to use marijuana so no state requires a person to violate federal drug laws. As a result, courts would probably agree that federal law does not conflict with state law.

And because there is no conflict between federal law and state law, courts would probably hold that the Supremacy Clause does not cause federal marijuana laws to preempt state laws.

As a result, we can expect that over the next few years the federal government will continue to treat marijuana as an illegal drug while many states consider marijuana legal. Federal and state marijuana laws will be different, but not in conflict.

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Have you ever wondered what happens when a federal law says one thing and a state law says another? The answer to the question lies in Article 6, Paragraph 2, of the United States Constitution, which is commonly known as the “Supremacy Clause.” Under the Supremacy Clause, federal laws, which apply to the entire country, are supreme over state laws, which apply only to particular states (like Arizona).

Article 6, Paragraph 2 of the United States Constitution says the following:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

What the Supremacy Clause basically says, in plain language, is that the United States Constitution and federal law (including foreign treaties) are supreme over state constitutions and state law. This is a very important part of the American political structure because it ensures that, where the United States Constitution grants power to the national government, laws enacted by that national government outrank – or take precedence – over laws enacted by state governments. If the United States Constitution did not include the Supremacy Clause, the various states and the federal government probably would be arguing constantly over whose laws should apply in every situation. The federal government also would find it much harder to exercise its own constitutional powers in the overall national interest. Without the Supremacy Clause, the United States of America might not be so “united.”

The doctrine of preemption

Whenever a state and a federal law disagree, the federal law will prevail. But how is it determined in the first place whether the federal law and a state law are in conflict? The determination is made through the use of a legal principle known as the “doctrine of preemption.”In its ordinary use, to “preempt” (or “pre-empt”) means to “take action in order to prevent an expected event from happening.” In the constitutional context, to “preempt” has a similar meaning: Whenever a federal law exists in an area in which the United States Constitution grants authority to the national Congress under the “enumerated powers,” that federal law prevents any state law – whether it comes from the state’s constitution, the state’s legislature, a state court, or one of the state’s administrative agencies – from having effect. The state law is “preempted.”Under the American federal system of government, all powers not expressly granted by the United States Constitution to the national Congress are reserved to the states. Consistent with this arrangement, what the doctrine of preemption says is that unless evidence exists that the national Congress intended that a federal law would “preempt” a state law, the presumption is that Congress had no such intention, and the state law will stand.

So what counts as evidence of Congressional intent to preempt a state law? Congress can show its intent to preempt a state law in two ways: (1) by saying so “expressly” (directly) in the federal statute (which is known as “express preemption”) or (2) by saying so “impliedly” (indirectly) through the structure or purpose of the federal statute (which is known as “implied preemption”). Implied preemption itself takes two forms: If the structure or purpose of the federal statute would make it impossible to comply with the federal law and a state law simultaneously, then Congress is presumed to have intended to preempt the state law. This is known as “conflict preemption.” If the structure or purpose of the federal statute is so extensive that the regulations it creates will occupy an entire field of law, then Congress is presumed to have intended to preempt the state law. This is known as “field preemption.”

What happens when state law conflicts with federal law? The answer relies on the doctrine known as federal preemption.

The Supremacy Clause is a clause within Article VI of the U.S. Constitution which dictates that federal law is the "supreme law of the land." This means that judges in every state must follow the Constitution, laws, and treaties of the federal government in matters which are directly or indirectly within the government's control. Under the doctrine of preemption, which is based on the Supremacy Clause, federal law preempts state law, even when the laws conflict. Thus, a federal court may require a state to stop certain behavior it believes interferes with, or is in conflict with, federal law.

But in the absence of federal law, or when a state law would provide more protections for consumers, employees, and other residents than what is available under existing federal law, state law holds. For instance, federal anti-discrimination law does not include LGBTQ individuals as a protected class. Therefore, an openly gay employee in Kansas can be lawfully fired simply for being gay. But an Illinois employee may sue under state law for wrongful termination if their sexual orientation or gender identity (either actual or presumed) was a factor in the firing.

Examples of the Supremacy Clause: State vs. Federal

Example 1

State A has enacted a law that says "no citizen may sell blue soda pop anywhere in the state." The federal government, however, has established the "Anti-Blue Sales Discrimination Act," prohibiting actions that discriminate against the color of goods sold. A local food and beverage vendor who sells blue soda pop in vending machines is charged with violating the state law. She may challenge the state law on the basis that it is preempted by federal law, and therefore violates the Supremacy Clause of the U.S. Constitution.

Example 2

The United States passes a law promising to preserve and to protect Indian tribes. State B wants to tax Indian tribes located within its state. Under the Supremacy Clause of the U.S., State B may not tax a federally recognized Indian tribe since doing so would violate the tribe's political interest in which the U.S. has promised to protect.

Federalism and Enumerated Federal Powers

The federal government has broad powers under the Supremacy Clause to create, regulate, and enforce the laws of the United States. The concept of federalism, or that of federal power, has a long-standing history dating back to the late 1700's, during the time in which the nation's founding fathers signed the U.S. Constitution. Among those powers, the federal government has certain express (or "enumerated") powers which are specifically spelled out in the U.S. Constitution, including the right to regulate commerce, declare war, levy taxes, establish immigration and bankruptcy laws, and so on.

Not only does the federal government have express powers under the U.S. Constitution, it also has implied powers, or powers not specifically mentioned in the Constitution. This was the decision in the landmark Supreme Court case of McCulloch v. Maryland. For example, the Constitution does not expressly mention the right to privacy, or the right of people to adopt, or seek an abortion, however, these rights can be inferred by the Constitution itself, or from the later amended Bill of Rights.

Whether express or implied, federal law will almost always prevail when it interferes or conflicts with state law, except in circumstances where the federal law is deemed unconstitutional, or where the Supremacy Clause does not apply. However, there are plenty of examples where tension between state and federal law remains unresolved. For instance, several states have legalized both the medical and recreational use of cannabis (marijuana), which is still a Schedule I controlled substance under federal law. In this case, it's mostly a matter of political will and resource allocation.

To that end, people living within the U.S. should be aware of the broad powers of the federal government, especially on issues affecting their daily lives, such as bankruptcy issues, discrimination claims, immigration challenges, federal taxation, and many others. A constitutional law attorney can help with the construction and interpretation of a federal law as applied to a particular state law.

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Whether you have been charged with a federal crime you thought was legal under state law, wish to sue for a civil wrong but are unsure about jurisdiction, or have other legal concerns, it's often best to work with a lawyer. Often the cost of not getting appropriate legal representation greatly outweighs the cost of going alone. Check FindLaw's lawyer directory today for an attorney near you.