Understanding the Supremacy Clause

By Douglas V. Gibbs

I am asked often about the Supremacy Clause. We have been taught that all federal law supersedes state law, and that just is not true.

Article VI, Clause 2 establishes the Supremacy Clause. Perhaps one of the most misunderstood and misapplied clauses of the U.S. Constitution.

John Marshall, the fourth Chief Justice of the United States (the justice that also wrote an opinion seizing the power of Judicial Review for the courts - Marbury v. Madison, 1803) wrote that there is a priority of national claims over state claims in his opinion regarding McCulloch v. Maryland, 1805, which upheld an act of 1792 asserting for the United States a priority of its claims over those of the States against a debtor in bankruptcy. With subsequent opinions, Marshall, Joseph Story, and many courts since, have fostered the belief that the federal courts, and laws, have total supremacy over all state courts and laws. However, this concept contradicts the 10th Amendment, which specifically states that powers not delegated to the federal government, nor prohibited to the States, belong to the States.

What this means is that not all federal laws are supreme over State laws, and the federal courts are not supreme over state courts when it comes to issues that fall under the sole authority of the States.

If the federal government has a law on the books, and the law was made under the authorities granted by the States in the United States Constitution, and a state, or city, passes a law that contradicts that constitutional federal law, the federal government’s law is supreme based on The Supremacy Clause. However, if the federal law is unconstitutional because it was made outside constitutional authority, it is an illegal law, and therefore is not supreme over similar State laws.

An example of the federal government acting upon the assumption that all federal law is supreme over State law is the medical marijuana laws in California. Though I do not agree with the legalization of marijuana, even for medicinal purposes, the actual constitutional legality of the issue illustrates my point quite well.

California passed a law legalizing marijuana for medicinal purposes, but federal law has marijuana as being illegal in all applications. Therefore, using the authority of the federal government based on the Supremacy Clause, federal agents (or at least until recently) have been raiding and shutting down medical marijuana labs in California. However, there is no place in the U.S. Constitution that gives the federal government the authority to regulate drugs, nor has there been an amendment passed to grant that authority to the federal government, therefore the raids on medical Marijuana labs in California are unconstitutional actions by the federal government.

The Supremacy Clause applies only to federal laws that are constitutionally authorized. Therefore, federal drug laws are unconstitutional. As a result, California's medical marijuana laws are constitutional because they are not contrary to any constitutionally authorized federal laws.

"Contrary" is a key word in the Article VI, Section 2.

Language plays an important part in the Constitution, and The Supremacy Clause is no different. The clause indicates that state laws cannot be contrary to constitutionally authorized federal laws. For example, Article I, Section 8, Clause 4 states that it is the job of the U.S. Congress to establish an uniform rule of naturalization. The word "uniform" means that the rules for naturalization must apply to all immigrants, and to all states, in the same way. If a state was to then pass a law that granted citizenship through the naturalization process in a way not consistent with federal law, the State would be guilty of violating the Supremacy Clause.

In the case of Arizona’s immigration law, the argument by the federal government that Arizona’s law is contrary to federal law is a bad argument. Assuming, for just a moment, that the federal government has complete authority over immigration (which is not true since immigration is one of those issues in which the federal government and the States have concurrent jurisdiction), Arizona's law would then need to be identical to federal law. And in most ways, the Arizona law is similar to federal law. However, if Arizona was to follow the federal government's recommendation, and truly pass a law completely in line with federal law, Arizona would remove its text that disallows racial profiling because the federal law does not contain such protections, which is actually the only way the law is contrary to federal law.

The language in Article VI, Clause 2 reveals clearly that only laws made under the authorities granted to the federal government have supremacy. Article VI, Clause 2 reads: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; . . . in pursuance of what? Of the Constitution.

-- Political Pistachio Conservative News and Commentary