The declining respect for the Constitution’s Supremacy Clause

The states created the national government and for the sake of the union the states relinquished their absolute individual power and sovereignty to that newly created federal government. The Supremacy Clause is the most important guarantor of national unity. Article VI, Paragraph 2 of the U.S. Constitution establishes that the federal Constitution, and federal law generally, take precedence over state laws.

The Supremacy Clause was a straightforward conflict-of-laws rule designed to resolve conflicts between state and federal law touching on the same subject. So what happens when the state laws conflict with federal law? Under the doctrine of preemption based on the Supremacy Clause, the federal law preempts and supersedes state law. A federal court may require a state to stop a certain behavior if it believes it interferes with federal law. The opposite sometimes occurs as in the case of Arizona where Gov. Jan Brewer, through state law, was attempting to enforce federal immigration law which the federal judiciary under President Obama chose not to enforce.


The brouhaha these days seems concentrated around two main issues — sanctuary cities, and the several states which have legalized marijuana in contravention of federal statue. In the case of marijuana the big draw for states is money garnered through taxation. Colorado, which is just one of more than 29 states where cannabis has been legalized for medicinal or recreational use, collected over $500 million in tax revenue last fiscal year dwarfing alcohol revenues. Hawaii, too, will soon consider legalizing recreational marijuana despite the social and safety concerns such action may bring simply to have another way to replenish the coffers and pay for our ever-expanding government spending.

In the case of sanctuary cities flouting federal law, the motivation on the part of the cities and states seems to be based more on ideology than money, although some cities and municipalities claim they are unfairly coerced to use limited local resources to enforce federal immigration laws.

Those against sanctuary city policies feel that harboring, or at least not turning over illegal immigrants is endangering the community. According to the Center for Immigration Studies the growth of transnational gangs has been a dangerous side effect of our tolerance for high levels of illegal immigration and our failure to control the U.S.-Mexico border.

The divide between state and federal law over cannabis will be settled eventually by removing marijuana from the DEAs Schedule 1 illegal drug list, which considers marijuana to have no medical benefits while at the same time giving it a designation reserved for the most dangerous substances including heroin, LSD and mescaline. Numerous studies have demonstrated the beneficial qualities of marijuana and its extracts for the treatment of a wide variety of ailments so the rescheduling of this drug is very likely.

How the chasm between the federal government and the nearly 300 U.S. cities and some states labeled as sanctuary will ever be reconciled is a much more difficult proposition. It’s hard to argue that removing violent actors such as MS-13 gang members from our cities does not make those communities safer, but the illegal immigration issue is far more complex and short of comprehensive immigration reform, whatever that may mean, the obvious dereliction by politicians of both parties for too long has created a big, costly, entangled mess.


As citizens of a free republic it is our duty to preserve it. If you would like to take a free online course on the U. S. Constitution go to:

Mikie Kerr is a constitutional enthusiast who lives in Waikoloa and writes a monthly opinion column for West Hawaii Today.