13 March 2015

Conflicts between the federal government and the states: who wins?

My good friend Joshua Marpet asked me on Facebook to compare the following two situations: 

Medical Marijuana is legal to states, but federally illegal. On the other hand, he cited an article where a state Representative in Texas was attempting to pass a state law which would seek to criminalize the public recording of police, or otherwise exempt only a defined set of news media from such criminalization.

These two issues are both related and different. Let's tackle the marijuana issue. Marijuana is a Schedule I drug under the Controlled Substances Act; and its manufacture, importation, possession, use and distribution is illegal by federal law. That some states have legalized marijuana for medical uses (or for recreational uses) does not change this fact. This is a Supremacy Clause issue. That clause reads:
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, anything in the constitution or laws of any state to the contrary notwithstanding.
What this means is that when federal and state laws conflict, the federal law wins.  So the federal government could go into every state that has legalized marijuana in any way, and shut down their operations. People who otherwise would be permitted to use marijuana by their states could still be subject to federal criminal penalties for those uses.  Such actions would be fully consistent with the Supremacy Clause and the Constitution. The only difference here is that the federal government has largely chosen to acquiesce to the states on this issue (probably as a result of growing public acceptance). But this doesn't prevent the federal government from changing its mind regarding the enforcement of federal laws in the future. Another administration less tolerant of state marijuana laws could, consistent with the Supremacy Clause and the Constitution, enforce federal law in states that have otherwise legalized marijuana.

A good example of a proposed law that would likely fail on Supremacy Clause grounds (and for other reasons, such as separation of powers) is a proposed Utah law to cut off water to the new NSA facility in Bluffdale, Utah. Proposed laws like these, and others under the category of nullification (a long-ago discredited doctrine), simply don't pass muster.

The second issue involves whether a state can proscribe (or prohibit) conduct which is presumably legal under federal law. A short aside: the cited article suggests that criminalizing the recording of police "could be considered an act of defiance to mountains of legal precedent set forth by the Supreme Court of the United States." To be sure, the Supreme Court has never ruled on the specific issue of whether citizens have a legal right to film the police. The case that the article cites is Glik v. Cunniffe, which is a First Circuit case. The holding in this case only applies to the First Circuit; but for the purposes of this post, let's assume that indeed, the Supreme Court had affirmed the Glik decision.

In the area of individual rights, the federal government (or more precisely, the federal courts) set the minimum standard as to what is permitted. The states can provide more protection to individual rights, but not less; so long as those rights do not infringe on any federal constitutional rights. Here are two examples. First, in Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990), the Supreme Court held that DUI checkpoints were reasonable under the Fourth Amendment. Nonetheless, a number of states have found such checkpoints to violate the state constitutions or have otherwise outlawed them. Here, the states are providing more protection to individual rights of its citizens than the federal government, and as a result, this is permissible. Second, the Supreme Court has held that people generally do not have freedom of speech in private shopping centers; but on the other hand, California's constitution provides greater protection to speech than the First Amendment. So in California, people can exercise free speech even in a privately-owned shopping center. This too is permissible.

The proposed legislation in the cited article appears to do expressly the opposite: it purports to provide less protection to individual rights than is already permitted by federal law (again, assuming that Glik had been affirmed by the Supreme Court). When states attempt to restrict the rights of its people more than the federal government does, this rules afoul of--you guessed it--the Supremacy Clause. Even now--when there is no Supreme Court ruling affirming the right of people to film the police--I suspect a state law like the one proposed above would violate the First Amendment.

I hope this adequately answers the question!
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