Do constitutions limit "lower" governments if the subsidiary chooses to be less restrictive?

Factual Questions
1

Ok, that’s a stupid thread title, but I can’t think of a clearer descriptive question…

Anyhoo, hubs and I were discussing a proposed local ordinance tonight, which would make possession of less than an ounce of marijuana a ticketable offense, versus an arrest. Still a fine, but no arrest, nor criminal record. And the bitter half and I both agree that’s reasonable.

We disagree, however, on some finer points of law.

According to him, lower governments (city, county, state,) can’t legally be more liberal than the constitution under which they operate. That is, a city in Georgia can’t decriminalize an offense that is criminal under state law.

My understanding is the opposite. A lower government may not impose stricter rules than those of its overriding constitution, but it can (within limits) impose less stringent laws. Otherwise, states couldn’t legalize marijuana sale/possession, right?

(I swear, hubby and I both had to pass the same US Government class to graduate, taught by the same teacher. But only one of us made an A, and only one of us can cite the Bill of Rights from memory.)

2

There is no universal rule pertaining to the powers of “lower” governments. The federal-state relationship is nothing like the state-local relationship.

A valid federal law is the supreme law of the land, period. A state cannot make something legal if it is prohibited by federal law. To use your example, marijuana is illegal in the United States, everywhere, and no state can change that. A state can get rid of its own laws dealing with a matter and leave a federal matter 100% up to the federal authorities to deal with. Several states have done this with marijuana, and some places (so-called “sanctuary cities”) have also done it with immigration matters. Were Congress to repeal the law prohibiting Marijuana in the United States, states would still be free to prohibit it, though Congress may also have the power to make it affirmatively legal and prohibit states from regulating it (in the same way that a state cannot prohibit you from having a television antenna on your house).

For local government, it’s totally up to a state to figure out how to structure its local governments. The power of a local government to make its own laws is called “home rule”, but it’s up to the state to figure out what form home rule will take, or if it will exist at all. For example, in Ohio, cities and villages have home rule but counties and townships don’t, and the exact scope of the cities’ home rule is subject to constant bickering in the state courts.

3

I think you’re both conflating a few things. My understanding is that states are the so-called sovereigns in the US system: namely they get to decide what the statewide law is, including deciding how local governments (cities, counties, etc.) are chartered. So a state wide government can set the rules for what a statewide crime is, and also set the rules for if a local government may be less or more restrictive regarding those rules.

So if something is criminal under state law, I doubt a city could decriminalize it unless the state had given it that power explicitly.

And of course if we’re talking about the state versus federal level, then I assume the state can do anything unless it is interpreted to be forbidden by the US level constitution, although I think things like the commerce clause, etc. are interpreted so broadly these days that its possible for many things to be illegal or regulated at the federal level.

Marijuana legalization in the states doesn’t trump federal law. In theory, the federal government could enforce this, but its the sort of thing that is typically handled by the states. States that have legalized marijuana have essentially repealed their state level laws against it and consequently don’t enforce them, leaving an enforcement hole (since the feds aren’t currently bothering) that is popularly interpreted as decriminalization.

4

Two questions, because ianal:

If federal law says that marijuana sale is illegal, but the state legalizes, can the feds raid a shop in, say, Colorado, and charge the owners with a federal crime?

And, in a state like Georgia, where marijuana possession is a crime under state law: the state statute says that posession of up to an ounce is punishable by “up to $1000 fine and 6 months in jail.” If a municipality chooses to punish the same with a simple ticket and fine below $1000, that would still satisfy the letter of state law, right? (The cities that have/are considering making small possession a ticket offense are still penalizing possession, but removing the potential criminal record.)

5

Yes, and this was a real concern in the early days after the first state legalized it, and also in the immediate aftermath of Jeff Sessions taking over the Department of Justice.

6

Yes, and this could still happen.

But … the actual troops on the ground who would have to do this (mainly the FBI) have much more serious crimes to pursue, and they can see where the trends are going. (Currently, a majority of US citizens live in states that have legalized marijuana (either medical or recreational), and over 2/3rds of US citizens believe it should be fully legalized in all states.)

7

There are several issues at play here - IANAL, but this is my understanding:

In general, the constitution defines what are state and federal powers. More specifically, it lists federal powers and any other powers are up to the state to define. For cities - depends on the state constitution, but I have not heard of any state off hand where the state did not reserve the right to override a county or municipality.

Of course, where it grants citizens certain rights (“The state shall make no law…”, “a free press…”, etc.) then that guarantee applies to the whole country, including the states. (Didn’t always used to be so.)

So as an example - it is up to the state to define whether pot is legal or not. What the federal government has done is assert its power to regulate interstate commerce - you cannot take pot across state lines. They have twisted this with the argument - that the Supreme Court agreed to, decades ago - that to properly restrict the interstate traffic, they had the right to ban production trafficking and possession within a state also, since logically such activity would inevitably contribute to interstate trafficking. Apparently, the interstate commerce clause has been used to argue the feds can intrude on almost everything that is a state right if they can claim it is necessary to regulate interstate commerce. Or for example, an offense against the federal government - such as assault on a federal officer, different from assault in general, a state crime.

Plus, the feds cannot force a state or it’s law enforcement to act - directly. They can apply financial persuasion, positive or negative. But they cannot force the police of a state or city to enforce federal laws if the state chooses not to. The various states can “legalize” marijuana but as mentioned earlier, cannot change federal law. The feds can, however, decide to look the other way and not enforce the law. Generally, marijuana enforcement is a state crime where it is still illegal, so the federal effort is mostly spent chasing down traffickers and such.

What we do see is a “tolerant attitude”.

Another fun note - violating a state law and violating a federal law are two different crimes, even if it was one act. Therefore, you can be charged by both, double jeopardy is not applicable.

8

So I guess that sort of clarifies my question:

Bumblefuck state law says that possession of up to X amount of a substance is a misdemeanor, punishable by UP TO 6 months incarceration and/or $1000 fine. East Central Bumblefuck, operating as a political subdivision within the constitution of BF, says that the possession is a ticket - no arrest - and a $500 fine. Still illegal, but the penalty is less than the maximum described under state law.

East Central BF can do that, without subverting state law. They can’t make the penalty $2000 and a year in jail, right?

9

The town of East Central Bumblefuck can penalise you under its law and demand the $500 fine. What they can’t do is stop the State of Bumblefuck from prosecuting you and seeking the prison sentence and the $1000 fine. They could only do that if the State, when enacting its law, give the town a power to modify or disapply the State law within the jurisdiction of the town - which I think we would be unusual.

And there’s nothing to stop the State of Bumblefuck amennding its law to increase the prison sentence and the fine imposed under state law.

10

If that’s the case, would double jeopardy apply? Have there been state or federal cases testing the parameters of cities or decriminalizing marijuana possession, and state or federal charges above the local penalties?

11

I’m pretty sure it would be double jeopardy if you were prosecuted under a city law and then a state law for the same act - but I also think you’re overthinking the whole thing.

The first thing you have to remember is that police officers have a lot of discretion in enforcing laws. You also have to remember that ECF enacted the more lenient law for a reason- maybe its jail was getting too full, or they felt people were ending up with criminal records who shouldn’t have records. Whatever it was, they did it for a reason - and it doesn’t make sense to enact this law if people are still going to be charged and prosecuted under the stricter, State of Bumblefuck law. So the ECF police department is going to have a policy that strongly encourages officers to make arrests to be made/write tickets for violations of the ECF law. * However, the Bumblefuck State troopers are almost certainly going to ignore the ECF law and arrest people for violating the state law , even within the boundaries of ECF.

12

There are a lot of things that are illegal under both state law and federal law. In those cases, both the state and the federal government could go after you, if they choose. There are a lot of other things that are illegal under only one set of laws. In those cases, only one government could go after you. And in any case, for either level of government, the authorities just aren’t going to bother for some offenses.

Right now, in Colorado, the state can’t go after you for marijuana, because the state has made it legal. The feds could, but they’ve mostly chosen not to bother.

13

Isn’t this about to be determined by SCOTUS in Gamble? Ref1 [Ref2](Orrin Hatch, the Supreme Court, and Trump’s Pardons - The Atlantic https://www.theatlantic.com/politics/archive/2018/09/...supreme-court/571285/)

14

Yes and no. Up until now, it hasn’t been considered double jeopardy. But often, this is because the two crimes are actually different. For example, hypothetically if a police officer is charged and acquitted of shooting an unarmed black person, then the feds (used to) go after them for violating their civil rights - a result of the same action, but not a murder charge. There are some actions that are the same crime federally and stately - and that could be a good case. However, it brings up interesting implications. If the state and feds are one and the same in this regard, what about two states?

This was exactly what the enumeration of powers in the constitution was set to avoid - but again, the feds have used the interstate commerce clause as an end run around those limits. Plus, certain crimes in commerce obviously matter to both.

15

As a general rule, at the internal state level, only the state may statute and penalize felonies. Subdivisions of the state may do so for misdemeanors and administrative infractions (e.g. zoning violation) entirely subject to whether the state constitution or laws grant them that scope of authority.

GENERALLY speaking, municipalities are understood to pass ordinances on the basis of a power that emanates from the state and is devolved upon the locality by state law as subordinate subdivisions of the sovereign state. If the state of Madisonia flat out makes pot possesion above an ounce a felony, the city of Hamiltown cannot depenalize it and the Hamiltown police must enforce the law. But OTOH if Madisonia legislates that it may be regulated by local ordinance then the ordinances of Hamiltown may apply.

How much looser or more stringent the ordinance may be vs. the state law on the same subject, depends on the state constitution, laws and precedents.

Sometimes the state law is silent, though, and municipalities will pass ordinances and only THEN will the state legislature say “oh, right, we DON’T want you to do that” and legislate.
Meanwhile states have inherent “general police power” reserved over anything that the US Constitution does not specifically make federal-only, and pending the outcome on the quoted case, the doctrine has been that the power and authority to legislate and enforce arises independently from each sovereignty. Under that premise the local/state police cannot be commanded from DC to enforce a federal directive and the US in turn does not have to abide by a municipal or state ruling if they wish to prosecute a federal offense. So for instance local officials will not cooperate with ICE at “sanctuary cities” but ICE will make arrests anyway when they can.
Until recently the territorial governments were treated like states for Double Jeopardy purposes vs. federal courts but in 2016 there was a case (Puerto Rico v. Sanchez Valle - Wikipedia) whereby it was ruled in effect by SCOTUS that our “home rule” is an emanation from federal sovereignty so it would apply to our trials.

16

That was the case where several Justices said (obiter) that double jeopardy question for state v federal charges should be revisited. Like, IIRC Thomas and Ginsberg.

17

The local authorities can simply instruct their local police not to bother with certain minor offenses, such as possession of small amounts of pot. A rogue policeman could choose to ignore the instructions, but the local DA could also refuse to make any charges.

FWIW, my feeling is that attempting to regulate pot that is grown and consumed entirely within a state is none of the feds business and not covered by any interstate commerce clause. Ditto the preventing of pot dealers from using federally regulated banks for their businesses. Note that this does not prevent the IRS from collecting taxes on their profits. I wonder–could they use the federal tax returns as evidence?

18

If they do, that raises Fifth Amendment issues. I think that the current interpretation is that tax returns can’t be subpoenaed, for that reason.

19

Lucunae, the answer is of course state specific. In Ohio, Article 18 sec. 3 of our Constitution is our “Home Rule” provision.

Under current Ohio law possession of under 100 grams of MJ is a Minor Misdemeanor. Up to $150.00 fine, no jail time can be imposed.

Under Home Rule, a Municipality can up it from a M-4 to an M-1. An M-4 is punishable by up to 30 days in jail and a $250.00 fine.

This is the same for Misdemeanor traffic laws and other offenses.

20

I believe you are correct under Waller v. Florida