Update to clarify what is meant by "actually legal": my question is whether, in states that voted recreational marijuana use to be legal, it is possible for anyone in the US Government (federal, state, or local) to prosecute and convict you for using marijuana recreationally.

My understanding is that, for example, Nevada voted it to be legal recreationally, but it's still illegal at the federal level. And so, there's a difference in what federal law says, and what state law says. How is this difference reconciled?

Also, how is it possible for different jurisdictions to create laws that contradict one another? Shouldn't there be a filtering process that wouldn't allow the non-superseding jurisdiction to pass the law in the first place?

  • In this case, it's legal because an overwhelming number of the people involved believe it's legal thus making the crime not prosecutable due to being unable to provide a jury of peers that is not willing to nullify. This is an unstable state of affairs. – Joshua May 8 at 22:16
up vote 2 down vote accepted

In the United States, individual members(States) of the union are allowed to make their own constitutions and state laws & regulations. This includes laws that may contradict Federal law, although this is a grey area. It usually comes down to enforcement.. Federal laws are usually enforced by Federal law enforcement as they can not force states to do so.

Further more, State prosecutors will usually not attempt to prosecute you for a Federal law infraction. Only Federal prosecutors OR the department of justice.

To see a more detailed explanation on this, look at this "How Stuff Works" article.

  • Is it a gray area in the sense that state law supersedes federal law at times? Or in the sense that sometimes states are allowed to make laws that contradict federal law, and sometimes they're not? – Adam Zerner Jul 6 '17 at 19:23
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    The grey area is the enforcement of said laws. States are allowed to make their own laws, BUT If they contradict each other. Federal law ALWAYS supersedes it. The Federal government can't force the state to allocate resources to enforcement or require officials to do so. – Digital fire Jul 6 '17 at 19:25
  • I suppose this is a separate question, but what happens if something is illegal by the state, but legal federally. I assume that the state wouldn't actually be able to punish you, because you said that federal always supersedes state, but I'm not sure if my interpretation is correct. – Adam Zerner Jul 6 '17 at 19:33
  • Also, to be clear, the judicial branch doesn't "filter out" state law proposals that contradict federal laws before they become accepted as state laws? If not, why not? Because they see value in telling citizens "us [state] doesn't care if you do this and won't prosecute you, but you still can't safely do it because the Feds disagree with us"? – Adam Zerner Jul 6 '17 at 19:35
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    If something is legal federally but illegal in the state. The state can enforce & prosecute you but the Federal government will not. An example of this are gun laws in California VS nationally across the United States. As for the judicial branch "filtering out" state laws. They are not involved with all matters within the state's process of creating laws. It is usually an afterthought that involves lawsuits. – Digital fire Jul 6 '17 at 19:38

The USA constitution has a clause which makes it, and any laws derived from its authority, the highest priority in any conflict. It is found in Article VI, and usually called the "supremacy clause".

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.

Courts in all states are also bound to follow federal law above state law. However, they do not have jurisdiction to hear cases in which only federal law is breached, as this is reserved to the federal courts.

There is further a case from 1982, which gives us a firm idea of what the USA's Supreme Court thinks about state laws that conflict with or contradict a federal law with explicit purpose and rule:

Of course, a state statute is void to the extent that it actually conflicts with a valid federal statute; and "[a] conflict will be found 'where compliance with both federal and state regulations is a physical impossibility . . . ,' Florida Lime & Avocado Growers, Inc. v. Paul


The enactment process itself is the filter. Legislature checks with expertise whether a given proposed law is likely to violate a preemptive law, and how to word it so that the former's intent is achieved without breaching the latter.

Because legislatures are political, this expertise is sometimes ignored, and in more than a few cases, deliberately so. When that occurs, a suit is brought and the courts are required to decide whether or in what way a law is preempted and therefore void.

This memo states federal policy, though how long it will last is anyone's guess. One important thing to note is that there was no official change in regulations. The memorandum ends with the caveat that

this memorandum is intended solely as a guide to the exercise of investigative and prosecutorial discretion. This memorandum does not alter in any way the Department's authority to enforce federal law, including federal laws relating to marijuana, regardless of state law. Neither the guidance herein nor any state or local law provides a legal defense to a violation of federal law, including any civil or criminal violations of the CSA. Even in jurisdictions with strong and effective regulatory systems, evidence that particular conduct threatens federal priorities will subject that person or entity to federal enforcement action. This memorandum is not intended, does not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any party in any matter civil or criminal. It applies prospectively to the exercise of prosecutorial discretion in future cases and does not provide defendants or subjects of enforcement action with a basis for reconsideration of any pending civil action or criminal prosecution. Finally, nothing herein precludes investigation or prosecution, even in the absence of any one of the factors listed above, in particular circumstances where investigation and prosecution otherwise serves an important federal interest.

A half a year ago, it might have been politically impossible to prosecute on federal charges, but it was still technically possible. The policy is currently under review by DOJ. Since possession of marijuana is a general crime (i.e. not limited to "on federal land"), it is a prosecutable offense.

There is no reconcilation necessary per se: a person can be prosecuted at state or federal levels, so if a state lacks a mechanism for prosecuting a person, there is still the federal mechanism. Local police, however, are not obligated to enforce federal law.

More generally, though, if state and federal law actually contradict each other, the Supremacy Clause says that federal law take precedence. Such a federal law would of course have to be within the proper powers of the federal government, and as held in Gonzales v. Raich, thanks to the Commerce Clause, as applied to marijuana it is.

There are no rules that prevent certain types of legislative activities (e.g. considering and voting for a particular bill), nor can there be. That is, nothing can stop Congress or a legislature from passing a law that is patently unconstitutional (e.g. a law criminalizing criticism of the president). Any such law would simply have no effect, other than to clutter the statue books, since it can't be enforced.

  • Can a local or state police officer enforce a federal law if they'd like? – Adam Zerner Jul 6 '17 at 20:49
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    Police can enforce any violation of the law. Whether they are actively looking to enforce particular laws is something different. Each department has internal guidelines they abide by. – Digital fire Jul 6 '17 at 21:12
  • There is also a federal appropriations bill which prohibits expenditure of federal funds to prosecute marijuana crimes which are legal under state law, although these bills only last a year at a time. – ohwilleke Jul 7 '17 at 2:56

I agree with Supremacy Clause granted in US Constitution Article VI, but I would like also to quote the Tenth Amendment:

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Recall that during the Jim Crow Law years, separate but equal racial segregation was enforced based on States' Rights argument per Tenth Amendment. It was later toppled thanks to Inter-State Commerce clause:

[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

If the State's right argument is raised in the future due to violation of Federal Controlled Substances Act over the marijuana use, I am not sure if Inter-Commerce clause will be applicable. If not, there will be interesting debate between Supremacy Clause and Tenth Amendment.

P.S. I am NOT attorney. This post is NOT legal advice.

  • Please do not use code blocks for anything that is not actually code. – Nij Jul 7 '17 at 0:48
  • HI Nij, thanks for advice. However, I did not see the code block usage in my post. I used quotation, highlight, and hyperlink. Would you point it out or even edit my post? Thanks. – Ryan L Jul 7 '17 at 0:51
  • Backticks create code block. They appear in the grey shading. Stack Exchange does not have such a thing as highlighting. – Nij Jul 7 '17 at 0:56
  • Oh, ok. Thx Nij. – Ryan L Jul 7 '17 at 1:12
  • @Ryan L: Federal courts have held that even indirect effects on interstate commerce allow Federal regulation. Wickard_v._Filburn held that a farmer growing wheat used to feed animals on his own farm could be subject to a Federal law regulating interstate commerce in wheat. The same argument has been applied to marijuana – David Siegel Oct 22 at 23:13

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