Long-established in this nation is the principle that states can’t make laws that conflict with federal laws. In fact, that’s enshrined in our Constitution.
Article VI states, “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.”
Federal law, then, is the “supreme law of the land.” It trumps any state law.
Colorado, however, challenged that notion in 2012 when its voters approved a referendum allowing recreational marijuana use, which is against federal law. A few other states have followed, and there is a clear trend in many parts of the nation that favors the legalization of marijuana, or at least lesser penalties for those caught in possession of the drug.
Normally, federal authorities would tell states, in no unclear terms, to get in line with the law. That’s certainly what Washington did with Southern states over civil rights issues a half century ago.
Yet in 2013 the U.S. Attorney’s Office, then under the leadership of Attorney General Eric Holder, instead issued a memo telling federal prosecutors to prioritize eight areas of marijuana law to enforce, which mostly covered distribution of the drug.
Holder’s memo basically left how to handle marijuana use up to states and said they needed to establish “strict regulatory schemes” that protected those eight areas of federal interest.
But there were two big problems with that:
• Congress had still passed a law that was on the books forbidding marijuana possession, and the executive branch does not have authority to ignore laws written by the legislative branch. The executive branch only has the power to determine how to carry out the laws.
• The advice to states to enforce their own marijuana regulations was a weak attempt at shadowing what everyone knew was the clear intent of the memo: To let states know that the federal government wasn’t going to give them a hard time for allowing marijuana use.
Current U.S. Attorney General Jeff Sessions recently rescinded Holder’s memo, which has caused concern for the marijuana industry in states where it has been legalized. Their worries are probably overblown, as it seems unlikely that the country will reverse its trend of legalizing marijuana’s use in many states and decriminalizing it elsewhere. Further, states can get revenue from the sale of legal marijuana, while illegal supplies of the drug are sold tax free.
Whether America’s increasing tolerance for marijuana use is a good thing is debatable. Many of those in law enforcement claim marijuana is a gateway drug to harder, more addictive narcotics.
Until such a correlation is ruled out, it would be wise to go slow on legalization. If Sessions’ action causes some states to put on the brakes, that’s probably a good thing.
