Constitutional Query

[NCC 1701]

If I'm not mistaken, the SCOTUS makes a ruling on a topic and that's that, unless they reverse themselves at a later date, California has a pending bill that maybe put to a ballot soon regarding the legalization/decriminalization of marijuana, So...as it stands MJ is illegal in most instances most everywhere in the US and there are federal statutes prohibiting it, So IF CA legalizes it, could the fed come in and start arresting people anyway? If I remember, the President has "asked" the DOJ not to spend precious time prosecuting local/municiple cases(I'm not referring to someone who comes in with 4 tons on a boat) or would a law like this have to go to the SCOTUS(IF they'd hear it) to be ruled upon? I guess in a nutshell, it's: Does a state have the right to pass a law that supercedes a federal law?

[Baz744]

Does a state have the right to pass a law that supercedes a federal law?

No. Wherever federal and state law conflict, federal law is supreme.

[cdwjava]

The law will likely prohibit local law enforcement from prosecuting cases of possession under an ounce, and from prosecuting cultivation cases under 25 square feet (or whatever the law says). The feds are still free to come in and act accordingly making arrests or whatever.

Unfortunately, this new legislation will simply add to an already confusing patchwork of poorly thought out and crafted marijuana laws, and will make enforcement even MORE confusing, not less.

[BOR]

I guess in a nutshell, it's: Does a state have the right to pass a law that supercedes a federal law?

You are speaking of federal Pre-emption. Federal law does not always trump state law, it depends on the intent of Congress and if they "occupy the field" with the leigislation. If a state law conflicts in litigation it will be up to the courts to decide what law pre-empts the other.

In the case you cite, Obama controls the Justiice department, so if he instructs his US Attorney's to nix it unless there is a compelling need, state law will trump federal law, not as a ruling fromm a court, but the Executive branch.

Here is one case where state law pre-empted federal law.

http://www.law.cornell.edu/supct/html/01-706.ZS.html


If a state were to pass a law that was directly to challenge a federal law, it would be a a test case for the courts.

[NCC 1701]

No. Wherever federal and state law conflict, federal law is supreme.

That's what I thought, I guess it would come down to IF the federal authorities CHOSE to prosecute a case or not (again I'm not speaking of a case that envolves a huge amount, more like an ounce or two) currently under federal guidelines, manufacture or distribution of less than 50 kilograms of MJ is punishable by up to 5 years in prison and a fine of up to $50k

[Baz744]

You are speaking of federal Pre-emption. Federal law does not always trump state law, it depends on the intent of Congress and if they "occupy the field" with the leigislation. If a state law conflicts in litigation it will be up to the courts to decide what law pre-empts the other.

In the case you cite, Obama controls the Justiice department, so if he instructs his US Attorney's to nix it unless there is a compelling need, state law will trump federal law, not as a ruling fromm a court, but the Executive branch.

Here is one case where state law pre-empted federal law.

http://www.law.cornell.edu/supct/html/01-706.ZS.html


If a state were to pass a law that was directly to challenge a federal law, it would be a a test case for the courts.

State law never pre-empts federal law. State law never "trumps" federal law. In the case you linked to, the court held that the FBSA did not pre-empt Illinois tort law. That doesn't mean state law pre-empted federal law. The FBSA was still valid and effective in Illinois. That federal law did not pre-empt state law only meant that the state law was still effective, even though there were some federal regulations of the matter.

Had there been a contention that state and federal law conflicted, the issue would already be well-settled by the Supremacy Clause: if there was an actual conflict, federal law would prevail. That's not even an issue, and there is a large body of case law already settling your contention that "If a state were to pass a law that was directly to challenge a federal law, it would be a a test case for the courts." In such a case, federal law would prevail.

That's what I thought, I guess it would come down to IF the federal authorities CHOSE to prosecute a case or not (again I'm not speaking of a case that envolves a huge amount, more like an ounce or two) currently under federal guidelines, manufacture or distribution of less than 50 kilograms of MJ is punishable by up to 5 years in prison and a fine of up to $50k

What California can do, and is evidently trying to do, is say "we won't punish marijuana possession under our law, and we're not going to do anything to help enforce federal law." But California cannot nullify federal law within its jurisdiction.

[BOR]

If there were an actual conflict, federal law will not automatically prevail, no.

.State law never pre-empts federal law. State law never "trumps" federal law.

I never said it did, the example was to show that federal does not always prevail in a pre-emption case, thats' all.

[Baz744]

If there were an actual conflict, federal law will not automatically prevail, no.

Yes it would. The only time it wouldn't would be if the federal law were unconstitutional.

I never said it did, the example was to show that federal does not always prevail in a pre-emption case, thats' all.

You said:

Here is one case where state law pre-empted federal law.

You also said:

state law will trump federal law

[BOR]

This is what I said, my bold is a cut from me you quoted.

"In the case you cite, Obama controls the Justice department, so if he instructs his US Attorney's to nix it unless there is a compelling need, state law will trump federal law, not as a ruling from a court, but the Executive branch.

This was to illustrate the "practical effect" of Obama's non enforcement, not from a Court's ruling.

I guess you are missing my point about pre-emption, or maybe I am not explaining it well enough, I don't know?

[Baz744]

This is what I said, my bold is a cut from me you quoted.

"In the case you cite, Obama controls the Justice department, so if he instructs his US Attorney's to nix it unless there is a compelling need, state law will trump federal law, not as a ruling from a court, but the Executive branch.

This was to illustrate the "practical effect" of Obama's non enforcement, not from a Court's ruling.

I guess you are missing my point about pre-emption, or maybe I am not explaining it well enough, I don't know?

Maybe both. Who knows?