Here in Portland, Maine, and in neighboring South Portland, voters have decided to make marijuana legal. At the state level, it is decriminalized and mostly ignored, but still technically illegal. I do think marijuana should be legalized(If you want to talk about this, take it to GD), but how can it really work if it is legal in a couple towns, but not the most of the rest of the country? What if a CBP or FBI officer sees somebody smoking a joint? Could they do anything about it, or do they have to let it go because it’s legal in this city?
State and local law cannot override federal law, due to the Supremacy Clause in the Constitution. There are some things that federal law doesn’t cover that states can, and the states can extend federal law, but they can’t override it.
Let’s use Colorado as an example, since that covers a whole state and not just a couple of towns. The Colorado police won’t arrest you for having or using marijuana, and you can’t be brought before a state court for it. But the federal laws against marijuana are still in place and in effect, so a federal law enforcement officer could arrest you on marijuana charges, and bring you before a federal court. In practice, the Feds have decided that they’re not going to put in the resources to enforce the drug laws in states that allow them, but they could if they so chose.
Just a side note Chronos, the Colorado police still cite many for marijuana possession and use. It is not legal for under 21 to possess or use. Also, there is still a very large black market for weed that is not sold in stores and therefore not heavily taxed.
Local and state laws cannot override federal laws, but states do not have to implement federal policy. The same concept extends to Sanctuary Cities, where illegal immigrants do not have to fear local authorities. But the INS can still come calling.
In the case of these municipal laws, they’re just symbolic. The drug laws that both state and local law enforcement charge people under are state laws, and a city simply passing a law that unilaterally says pot is legal isn’t going to change that or make those laws not apply inside the city.
Local law enforcement has said they won’t enforce the state law because of the measures passing, but it’s entirely voluntary. They could change their mind and start enforcing the state drug law at any time, or the state police could move in and start enforcing them.
Is that true about local law enforcement? You’re talking about city police, right, not county? It seems to me that the city would be able to direct it’s cops to not enforce whatever laws they don’t want enforced. Or is it more nuanced at the city level?
The usual method is for a city to direct its police to give lowest priority to law __________.
In the case of marijuana, yes, the Feds (under Bush) were getting convictions for people licensed by CA to grow Medicinal Marijuana.
Obama told the DEA to stop enforcing Marijuana laws is jurisdictions where local law had made it legal.
The head of DEA called a press conference to denounce said instruction and repeat the old “gateway” theory.
I have no idea why she is still employed.
County and municipal governments and agencies are basically franchised by the state, as opposed to the theoretically co-equal relationship between the states and federal government. Since the local governments don’t have any power beyond what the state gives them, they can’t pass any laws that directly contradict state laws (or at least not pass them and have them found enforcable by the courts.) Similarly, even local law enforcement agencies are agents of the state and so a local government can’t just order them not to enforce certain laws.
Now, the “deprioritization” laws that have been passed in some cities have sidestepped the above to varying degrees of success. What they do is instead of outright telling the local police not to enforce the marijuana laws, they tell them to make marijuana enforcement their lowest priority (which of course accomplishes the same thing, unless all the litterers and speeders are already locked up.) However, it’s not entirely clear how binding they are if local law enforcement decides to ignore it and keep aggressively prosecuting pot users. It’s also quite likely that the state government could overturn a deprioritization ordinance if they were strongly opposed to it.
IIRC, the “Cromnibus” bill passed a few weeks ago contains a clause enjoining the federal government from enforcing marijuana laws against people who are possessing it in accordance with state laws allowing its use.
Which would seem to settle the superiority clause issue, albeit in a roundabout way.
That’s what George W. Bush Sr. meant by “thousand points of light”.
It can be more nuanced than that but yes. If the local governing body decides not to enforce a federal law.
The most common way the feds or states force local governments to carry out enforcement of federal law is to tie funding to compliance. If a town decided they were not going to enforce drunk driving laws the state might cut that towns highway funding until they rethink that position.
If it’s important enough the Feds or state also have the option of enforcing law regardless of the local governments wishes. Cuttin highway funding didn’t change the towns mind, it’s a big enough public hazard, expect the state cops to be pulling over people for dui on local roads.
Although the supremacy clause is in the constitution it provides for supremacy only for laws passed in comformity with the constitution and it is impossible for me to find any clause in the constitution that would allow them to regulate a substance that is grown, distributed, and consumed entirely within a state. The reserve clause reserves to the states or the people all powers not specifically authorized by the constitution (or to be fair, powers necessary and proper for carrying out the enumerated powers). what will happen when 30 states, including a goodly number of red states, have authorized pot?
The Supreme Court had more imagination that you. Wickard v Filburn ruled in 1942 the federal government, under the Interstate Commerce clause, could regulate the amount of wheat grown by a Ohio farmer for consumption on his own farm.
Hari, the answer is the commerce clause, which gives Congress the power "“To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” (US Constitution, Art. I, Section 8).
In 1942, the Supreme Court gave a very expansive interpretation to the commerce clause in a case called Wickard v. Filburn. The Court held that the commerce clause authorised Congress to regulate the ability of a farmer who was growing wheat solely for his own purposes. The Court reasoned that even though he was not selling the wheat inter-state, the fact that he had grown the wheat and was using it for his own purposes meant that he did not have to buy wheat on the open, inter-state market, and therefore Congress could regulate it because his growing wheat solely for his own purposes affected inter-state commerce.
The case has its critics, but it appears to be settled law in the US that the Congress can regulate a person who is growing an agricultural product solely for his own purposes. Substitute “weed” for “wheat” and Bob’s your uncle.
I have a question: Let’s say there is a resident of Colorado who is interested in consuming marijuana but who also happens to be totally square and law-abiding to the nth degree. The type of person who doesn’t eat meat on a Friday because there might be a long forgotten and never-enforced local law against it.
What would be solid legal advice for such an individual? Should he refrain from consuming marijuana in Colorado under all circumstances, given the potentially ambiguous legal situation with regards to Federal law enforcement?
The situation is fairly simple. I don’t see an issue.
Nobody can pass a law “making marijuana legal”. Everything not specifically illegal is legal.
The laws are a union set, not an intersection set or override. If a government, town, state, or federal, (or tribal) says something is illegal, it is illegal. If several of them say it is illegal, you are breaking several laws.
The only proviso is that the government must have the right/jurisdiction to pass such a law. The constitution(s) of the USA (and the state) delineate in what areas each can pass laws.
If a police force chooses (or their bosses choose) not to enforce a law, that does not make it legal - it simply means at this time, you will not be prosecuted for breaking the law. Not every jaywalker is ticketed, for example. Another law enforcement branch with the right to enforce that law may not have the same instructions.
The convoluted “interstate commerce” exception for drug laws (and almost everything else the feds do outside the constitution) is based on the theory that if you grow your own wheat or pot, it could end up in the country-wide market and eventually cross state lines, so it has an impact on interstate commerce.
Until recently the court bought this argument. Recall that the feds tried that argument with the Affordable Care Act - people could cross state lines to get health care, etc. etc. - and Roberts basically said he would give them ACA as a tax, but the ISS argument was too much of a stretch. If this is the direction the SCOTUS is going, then maybe we’ll see some reigning in of federal intrusions into state matters.
It wasn’t exactly settled - Wickard notwithstanding - until relatively recently, since it is arguable that (1) marijuana is not an “agricultural product”, since it is wholly illicit, and (2) a total ban is not necessarily within the commerce power. But then we got Gonzalez v. Raich, which was directly on point.
Well, yes. Possession and use of the psychoactive variants cannabis is a federal crime.
The situation with regards to federal law enforcement is not at all ambiguous. Possession or use of marijuana is illegal under federal law, and federal law enforcement officers can arrest you for it. Both of these statements are 100% true. The laws may or may not be enforced, but that’s not relevant for the sort of “law-abiding to the nth degree” person here described.
Federal law on buying and possessing marijuana is not especially ambiguous, so a scrupulously law-abiding person would have no choice but to refrain from doing it.