# How would the federal government block state legislation that contradicts federal law? **URL:** \ **Category:** Factual Questions\ **Created:** [November 12, 2012, 9:42pm UTC](https://boards.straightdope.com/t/how-would-the-federal-government-block-state-legislation-that-contradicts-federal-law/640830 "2012-11-12T21:42:31Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![griffin1977](https://avatars.discourse-cdn.com/v4/letter/g/977dab/32.png) [@griffin1977](https://boards.straightdope.com/u/griffin1977)\ **Post date:** [November 14, 2012, 5:43am UTC](https://boards.straightdope.com/t/how-would-the-federal-government-block-state-legislation-that-contradicts-federal-law/640830/21 "2012-11-14T05:43:12Z")
I understand the feds can still prosecute people for infringing on federal drug law. But the OP was specifically referring to the federal government suing the states to get these state laws struck down. **Northern Piper** and **sweeteviljesus** imply this is possible under the doctrine of federal pre-emption. How would that work exactly? ---
**Author:** ![Smapti](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/smapti/32/17938_2.png) [@Smapti](https://boards.straightdope.com/u/Smapti)\ **Post date:** [November 14, 2012, 6:13am UTC](https://boards.straightdope.com/t/how-would-the-federal-government-block-state-legislation-that-contradicts-federal-law/640830/22 "2012-11-14T06:13:20Z")
> [@RadicalPi](#): > > But now that I know there’s a state licensing board involved, that complicates things. I’m pretty sure that the Feds can shut those down as easily as they could shut down a state’s counterfeit money production bureau. The question would be what happens after that. Does Colorado keep the marijuana and get rid of the regulation, or do they just go back to how things were before. That I don’t know. Barring some major sea change in American jurisprudence, I see no reason why the possession and distribution parts of the referendum wouldn’t be severable. Presumably, CO and WA will end up with a state of affairs where it’s legal to possess marijuana, but not to grow, buy, sell, or distribute it. ---
**Author:** ![HeyHomie](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/heyhomie/32/207_2.png) [@HeyHomie](https://boards.straightdope.com/u/HeyHomie)\ **Post date:** [November 14, 2012, 3:27pm UTC](https://boards.straightdope.com/t/how-would-the-federal-government-block-state-legislation-that-contradicts-federal-law/640830/23 "2012-11-14T15:27:09Z")
I don’t get it. The fact that they legalized weed, federal law be damned, says to me that any and all court rulings related to the matter are going to be met with another refrain of “federal law be damned.” Furthermore, the feds can’t really _stop_ the Weed Control Board (or whatever they wind up calling the regulatory body) from carrying out their duties. What are the feds going to do-- burst through the doors of the WCB meetings in SWAT gear and carry them off to federal prison? ---
**Author:** ![Alley\_Dweller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alley_dweller/32/430_2.png) [@Alley\_Dweller](https://boards.straightdope.com/u/Alley_Dweller)\ **Post date:** [November 14, 2012, 3:39pm UTC](https://boards.straightdope.com/t/how-would-the-federal-government-block-state-legislation-that-contradicts-federal-law/640830/24 "2012-11-14T15:39:26Z")
> [@HeyHomie](#): > > I don’t get it. > > The fact that they legalized weed, federal law be damned, says to me that any and all court rulings related to the matter are going to be met with another refrain of “federal law be damned.” > > Furthermore, the feds can’t really _stop_ the Weed Control Board (or whatever they wind up calling the regulatory body) from carrying out their duties. What are the feds going to do-- burst through the doors of the WCB meetings in SWAT gear and carry them off to federal prison? If the Feds let it be known that the members of the WCB were in imminent danger of arrest and being sent to federal prison for 30 years, it would probably be difficult to recruit members for the WCB. It would be interesting to know exactly what kind of people would volunteer to serve on the WCB under these circumstances. If arrests were to be performed, it’s more likely they would be done at the individuals’ homes or offices. If I recall correctly, when the Feds came to arrest the governor of Illinois on corruption charges, they did so at his home at dawn instead of making a scene at the state capitol. ---
**Author:** ![robert\_columbia](https://avatars.discourse-cdn.com/v4/letter/r/e79b87/32.png) [@robert\_columbia](https://boards.straightdope.com/u/robert_columbia)\ **Post date:** [November 14, 2012, 3:44pm UTC](https://boards.straightdope.com/t/how-would-the-federal-government-block-state-legislation-that-contradicts-federal-law/640830/25 "2012-11-14T15:44:57Z")
> [@Simplicio](#): > > I don’t see how the legalization amendments contradict federal laws. Don’t they just void state laws that made possession illegal? I think the question is how specifically this would be established legally. You can say that you “know” that this Federal law overrides that State law, but without a court case establishing that, you don’t “really” know it. I think the question relates to who has standing to challenge the law in court and what court such a challenge would be filed in. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [November 14, 2012, 3:49pm UTC](https://boards.straightdope.com/t/how-would-the-federal-government-block-state-legislation-that-contradicts-federal-law/640830/26 "2012-11-14T15:49:02Z")
> [@HeyHomie](#): > > I don’t get it. > > The fact that they legalized weed, federal law be damned, says to me that any and all court rulings related to the matter are going to be met with another refrain of “federal law be damned.” > > Furthermore, the feds can’t really _stop_ the Weed Control Board (or whatever they wind up calling the regulatory body) from carrying out their duties. What are the feds going to do-- burst through the doors of the WCB meetings in SWAT gear and carry them off to federal prison? States cannot flaunt rulings of federal courts. See School Integration. The feds will get an injunction preventing these states from setting up WCBs. There is nothing that federal courts can do, however, to force local authorities to enforce federal law. So what will likely happen in these states is simply decriminalization for all practical purposes. You get your weed from whatever source you currently get it, and if you get pulled over or the cops are searching you for whatever reason, you won’t get in trouble for possessing or using it, but there will be no state-run dispensaries to get it from. ---
**Author:** ![robert\_columbia](https://avatars.discourse-cdn.com/v4/letter/r/e79b87/32.png) [@robert\_columbia](https://boards.straightdope.com/u/robert_columbia)\ **Post date:** [November 14, 2012, 3:49pm UTC](https://boards.straightdope.com/t/how-would-the-federal-government-block-state-legislation-that-contradicts-federal-law/640830/27 "2012-11-14T15:49:09Z")
> [@griffin1977](#): > > I understand the feds can still prosecute people for infringing on federal drug law. > > But the OP was specifically referring to the federal government suing the states to get these state laws struck down. **Northern Piper** and **sweeteviljesus** imply this is possible under the doctrine of federal pre-emption. How would that work exactly? I think we’re on the same page here. What sort of proceeding would be necessary to either formally void the state laws or rule that the Federal laws do not apply to solely local activity? Would there have to be a Federal arrest, trial, and appeal? Could Obama file a lawsuit with the SCOTUS without a test defendant who is facing jail for drug activity? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [November 14, 2012, 3:58pm UTC](https://boards.straightdope.com/t/how-would-the-federal-government-block-state-legislation-that-contradicts-federal-law/640830/28 "2012-11-14T15:58:46Z")
> [@robert\_columbia](#): > > I think we’re on the same page here. What sort of proceeding would be necessary to either formally void the state laws or rule that the Federal laws do not apply to solely local activity? Would there have to be a Federal arrest, trial, and appeal? Could Obama file a lawsuit with the SCOTUS without a test defendant who is facing jail for drug activity? I would imagine that you would go to a Federal District Court that has jurisdiction over Colorado (and again with one over Washington) and name the Governor in the suit for a permanent injunction preventing him from implementing any portion of the distribution scheme. ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [November 14, 2012, 4:00pm UTC](https://boards.straightdope.com/t/how-would-the-federal-government-block-state-legislation-that-contradicts-federal-law/640830/29 "2012-11-14T16:00:52Z")
> [@jtgain](#): > > States cannot flaunt rulings of federal courts. That depends. A federal district or appeals court can rule on a matter. IF the same question was presented to a state court, even within the jurisdiction of that court, they are not bound by the Supremacy Clause to follow it, state specific. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [November 14, 2012, 4:03pm UTC](https://boards.straightdope.com/t/how-would-the-federal-government-block-state-legislation-that-contradicts-federal-law/640830/30 "2012-11-14T16:03:05Z")
> [@lawbuff](#): > > That depends. A federal district or appeals court can rule on a matter. IF the same question was presented to a state court, even within the jurisdiction of that court, they are not bound by the Supremacy Clause to follow it, state specific. Not if it is a federal question. Are you suggesting that in 1955 the Kansas Supreme Court could have ruled that segregated schools were okay, and therefore not be bound by Brown? ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [November 14, 2012, 4:08pm UTC](https://boards.straightdope.com/t/how-would-the-federal-government-block-state-legislation-that-contradicts-federal-law/640830/31 "2012-11-14T16:08:35Z")
> [@jtgain](#): > > Not if it is a federal question. Are you suggesting that in 1955 the Kansas Supreme Court could have ruled that segregated schools were okay, and therefore not be bound by Brown? Brown was a US SC ruling, Article 6 contols. My state, Ohio, does NOT have to follow any ruling of an inferior federal court on the same question if presented to them. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [November 14, 2012, 9:57pm UTC](https://boards.straightdope.com/t/how-would-the-federal-government-block-state-legislation-that-contradicts-federal-law/640830/32 "2012-11-14T21:57:07Z")
> [@sweat209](#): > > So than what if some states what Health care and other states don’t ? Why should some state be forced to pay tax for service it does not want in its state or other state. If the federal government wants citizens (not states) to do something, it has some means at its disposal. The constitution limits what business the feds can stick their nose into. All else belongs to the states. It can impose a tax - i.e. buy health care, or pay a tax equivalent to what the cheapest would cost. It can argue “interstate commerce is involved” and regulate the activity that way. The supreme court has decided that includes the right to regulate growing and possession of a substance within a state because of the risk that substance may be transported interstate to become part of interstate commerce. It seems a stretch, but it also seems at one time, the SCOTUS rolled over and sat up on its hind quarters long enough to approve this logic. The same logic did not hold with Health Care, but the tax logic did. If states had the option to “opt out” of a service, then for example, how would you allocate the cost of the military. Can the landlocked states opt out of paying the navy costs? Why would they need to pay for air force costs either? Nobody’s going to reach Iowa without going through a border state, let those pay for defence… 🙂 The rule of thumb is, you’re all in it together. If you can elect a majority of both houses and the president, or 2/3 of both houses, then you can change the rules to suit yourself. But back to the OP - if there’s a state law agianst it _ **OR** _ a federal law, it’s against the law. If both have a law against it, you are doubly screwed. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [November 18, 2012, 9:36pm UTC](https://boards.straightdope.com/t/how-would-the-federal-government-block-state-legislation-that-contradicts-federal-law/640830/33 "2012-11-18T21:36:24Z")
> [@lawbuff](#): > > Brown was a US SC ruling, Article 6 contols. My state, Ohio, does NOT have to follow any ruling of an inferior federal court on the same question if presented to them. I want to be sure that we are on the same page. I agree that Ohio is the ultimate authority of Ohio state law. If a U.S. District Court in a diversity case takes an “Erie Estimation” of Ohio law, the Ohio Supreme Court can say, “Sorry boys, you got it wrong.” But if we are talking about a purely federal question, like if the (whatever US District Court is over Ohio) says that Ohio cannot tax and sell marijuana because of federal preemption, then that decision is binding (subject to appeal) no matter what the Ohio Supreme Court says. Do I misunderstand you? ---
**Author:** ![ed\_anger](https://avatars.discourse-cdn.com/v4/letter/e/bbce88/32.png) [@ed\_anger](https://boards.straightdope.com/u/ed_anger)\ **Post date:** [November 18, 2012, 10:05pm UTC](https://boards.straightdope.com/t/how-would-the-federal-government-block-state-legislation-that-contradicts-federal-law/640830/34 "2012-11-18T22:05:39Z")
> [@GiantRat](#): > > The bottom line is that (IMHO), states decriminalizing something banned by Federal law is evidence of a state acting like a cranky/rebellious child. If you want something decriminalized (much different than legalized, btw), your best bet is to write your Congress creature. In part, as alluded to in a previous post, because there’s now way that the substance legal to purchase in one state isn’t making its way into others (likely in violation of the interstate commerce clause). It’s one way to show what the will of the people is. Obviously if enough states decriminalize, it will eventually influence federal laws. To call it the act of a cranky child doesn’t negate the message. Just as civil rights, gay marriage etc spread by state, this will also. ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [November 18, 2012, 10:58pm UTC](https://boards.straightdope.com/t/how-would-the-federal-government-block-state-legislation-that-contradicts-federal-law/640830/35 "2012-11-18T22:58:56Z")
> [@jtgain](#): > > I want to be sure that we are on the same page. I agree that Ohio is the ultimate authority of Ohio state law. If a U.S. District Court in a diversity case takes an “Erie Estimation” of Ohio law, the Ohio Supreme Court can say, “Sorry boys, you got it wrong.” > > But if we are talking about a purely federal question, like if the (whatever US District Court is over Ohio) says that Ohio cannot tax and sell marijuana because of federal preemption, then that decision is binding (subject to appeal) no matter what the Ohio Supreme Court says. > > Do I misunderstand you? I am quoting from this case I have in my cannon of notes, see how you interpret it! Syllabus, in part; > [@](#): > > Supreme Court of Ohio not bound by rulings on federal statutory or constitutional law made by a federal court other than the United States Supreme Court. [http://www.sconet.state.oh.us/rod/docs/pdf/0/2001/2001-ohio-1581.pdf](http://www.sconet.state.oh.us/rod/docs/pdf/0/2001/2001-ohio-1581.pdf) ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [November 19, 2012, 12:29am UTC](https://boards.straightdope.com/t/how-would-the-federal-government-block-state-legislation-that-contradicts-federal-law/640830/36 "2012-11-19T00:29:55Z")
> [@lawbuff](#): > > I am quoting from this case I have in my cannon of notes, see how you interpret it! > > Syllabus, in part; > > [http://www.sconet.state.oh.us/rod/docs/pdf/0/2001/2001-ohio-1581.pdf](http://www.sconet.state.oh.us/rod/docs/pdf/0/2001/2001-ohio-1581.pdf) That’s a great cite, but the Ohio Supreme Court threaded the needle on that one, and there has been no case to smack it down. I very much doubt that it’s own statement of supremacy over the US District Court would hold were it seriously challenged. ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [November 19, 2012, 12:45am UTC](https://boards.straightdope.com/t/how-would-the-federal-government-block-state-legislation-that-contradicts-federal-law/640830/37 "2012-11-19T00:45:08Z")
> [@jtgain](#): > > That’s a great cite, but the Ohio Supreme Court threaded the needle on that one, and there has been no case to smack it down. I very much doubt that it’s own statement of supremacy over the US District Court would hold were it seriously challenged. It is a 2001 case, but to my knowledge it is still controlling in Ohio?? You are right about any challenge, it may not hold up, I was simply pointing out about Ohio, but we see at page 5 these courts were presented with the question and were opposite of us. Maybe you can Westlaw them and see how those courts arrived at thier decisions. The question of whether a state court is required to follow a federal trial court’s interpretation of federal constitutional law is largely unsettled, and the United States Supreme Court has yet to definitively address the subject. Several federal circuit courts and state supreme courts have held that state courts are bound by a decision of a lower federal court, but this rule is not universal. See, e.g., Yniguez v. Arizona (C.A.9, 1991), 939 F.2d 727, 736; Fretwell v. Lockhart (C.A.8, 1991), 946 F.2d 571, 577, reversed on other grounds (1993), 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180; Busch v. Graphic Color Corp. (1996), 169 Ill.2d 325, 335, 214 Ill.Dec. 831, 837, 662 N.E.2d 397, 403; Anderson v. Wagner (1980), 207 Neb. 87, 91, 296 N.W.2d 455, 458. ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [November 19, 2012, 1:14am UTC](https://boards.straightdope.com/t/how-would-the-federal-government-block-state-legislation-that-contradicts-federal-law/640830/38 "2012-11-19T01:14:40Z")
jt, there was a US SC decision that in “dicta” or a fn. of a case that they seemed to imply and adopt the OSC reasoning, but I can’t think of it right now. From snooping around I found this 2007 case from the CA SC. 15] Defendant relies on Odle v. Woodford (9th Cir. 2001) 238 F.3d 1084. There, a federal appellate court held that the trial court in a capital case erred by failing to hold a competency hearing when the defendant presented evidence that he had a partial lobectomy after an automobile accident, after which he exhibited bizarre behavior that led several times to admissions to psychiatric wards. **Decisions of the federal circuit courts are not binding on us** , and in any event Odle is distinguishable [http://online.ceb.com/calcases/C4/40C4t1370.htm](http://online.ceb.com/calcases/C4/40C4t1370.htm) ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [November 22, 2012, 3:03pm UTC](https://boards.straightdope.com/t/how-would-the-federal-government-block-state-legislation-that-contradicts-federal-law/640830/39 "2012-11-22T15:03:02Z")
> [@griffin1977](#): > > But the OP was specifically referring to the federal government suing the states to get these state laws struck down. **Northern Piper** and **sweeteviljesus** imply this is possible under the doctrine of federal pre-emption. How would that work exactly? Well, my Federal Courts class was a long time ago, and I’m not an American, so the details are a bit fuzzy, but since none of our US law Dopers have wandered by I’ll take a stab at it. Article V establishes that federal laws enacted under the Constitution are supreme over state laws. So, if there is a conflict between a federal law and a state law, the federal law takes priority. Now, if all the marijuana measures do is de-criminalise the possession of marijuana under state law, I doubt that there’s conflict. It’s just that the federal law makes something criminal that the state doesn’t. But I gather from this thread that some of the ballot proposals go further, and authorise or require the states in question to provide for medical marijuana. If that’s an accurate summary, I can see why there’s a conflict: federal law prohibits trafficking in marijuana, as an aspect of inter-state commerce. The state law isn’t just silent on the issue of marijuana; it’s telling the state to set up the Medical Weed Distribution Board. That sounds like trafficking under federal law. If I’ve accurately summarised it, then yes, the feds could bust the Medical Week Distribution Board and its members and employees for trafficking; but that’s bad publicity for the feds; ADT folks in flak jackets arresting state employees on trafficking charges on the 6 o’clock news isn’t likely to garner a lot of support. And, it’s in the feds’ interest not to even let it get so far as the Medical Weed Distribution Board actually being set up and ready for business. So instead, to try to foreclose it entirely, the federal DOJ can bring an action for an injuncition, in either state or federal court (as **AK84** suggested), seeking a declaration that the state laws establishing the Medical Weed Distribution Board conflict with the federal law on trafficking, and therefore trigger the pre-emption doctrine. The feds would also seek a permanent injunction, enjoining the state officials from even setting up or staffing the Medical Weed Distribution Board, because they want to nip this whole thing in the bud. If the court agrees with that argument, then the state law is rendered inoperative so long as the federal trafficking laws apply to marijuana, and the Medical Weed Distribution Board doesn’t get set up. And, if a state were to defy the court order and tries to set up the Board, it’s a much better P.R. position for the feds - instead of black-flak jacketed ADT thugs, arresting hapless state officials, the feds would sue for contempt, arguing that even if you don’t like the injunction, the rule of law requires all public officials to comply with court orders. That’s a much better argument for the feds to be making on the news. Wiki has a nice article on [Federal pre-emption](http://en.wikipedia.org/wiki/Federal_preemption). And, as I said, I’m not an American, nor an American lawyer, so this is just my best stab at a reply. Would welcome hearing from a real genuine American law-talking dude. ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [November 23, 2012, 3:57am UTC](https://boards.straightdope.com/t/how-would-the-federal-government-block-state-legislation-that-contradicts-federal-law/640830/40 "2012-11-23T03:57:13Z")
I think you’ve got it right, **Northern Piper**. This article may be of interest: [Legal history of cannabis in the United States - Wikipedia](http://en.wikipedia.org/wiki/Legal_history_of_cannabis_in_the_United_States) Congress has been legislating with regard to pot since 1906, when its sale was banned in Washington, D.C. Obviously its legal status has ebbed and flowed since then, and it has in recent years been acknowledged to be not nearly as dangerous a drug as, say, cocaine or heroin, but it remains illegal. Congress is certainly free to repeal the Federal criminalization of marijuana, but has chosen not to do so (and does not appear likely to, either, at least in the foreseeable future). Since Federal law is supreme under the U.S. Constitution, state decriminalization of pot does not affect Uncle Sam’s ability to prosecute those who grow, sell, ship or use it. The wisdom or social utility of such prosecutions is another matter entirely. [Previous page](https://boards.straightdope.com/t/how-would-the-federal-government-block-state-legislation-that-contradicts-federal-law/640830.md?page=1) [Next page](https://boards.straightdope.com/t/how-would-the-federal-government-block-state-legislation-that-contradicts-federal-law/640830.md?page=3)