When the issue of federal power over statesโ rights come into the forefront, Democrats are quick to cite theย supremacyย clause as beyond debate. ย Yet, Republicans often use the same talking points. ย When GOP policies need that extraย โfederal muscle,โ Republicans imitate their political opponents and claim federal law as supreme without question.
Case in point,ย Rep.Trey Gowdy (R-SC) andย Rep.ย Andy Harris (R-MD) are making the case that aย legalization initiative over marijuana in D.C would still be trumped by Federal power even if it were passed by local voters.
โIโm kind of naive, I guess. I thought federal law trumped state and local law. I thought thatโs why we had a supremacy clause,โ Gowdy, a former federal prosecutor, told The Hill on Friday.
While Congress has special jurisdiction over the District of Columbia, the problem is with the general statement from Gowdy that federal law, by its existence, simply trumps all state and local law.
These defenders of Federal Supremacy look to theย supremacy clause as their four aces, but omit the text itself.
โThis Constitution, and the Laws of the United Statesย which shall be made in pursuance thereofโฆshall be the supreme law of the landโฆโ (emphasis added)
Simply put, Federal laws are only supreme if such power is delegated to theย Federal Government in the Constitution. ย Anything not expressly delegated is left to the States and the people there of visโร โvis the 10th Amendment.ย As Hamilton wrote in Federalist #33.
โIt will not, I presume, have escaped observation that it [the supremacy clause] expressly confines this supremacy to laws made pursuant to the Constitution; which I mention merely as an instance of caution in the convention; since that limitation would have been to be understood, though it had not been expressed.โย (emphasis added)
If a federal law is โnot in pursuanceโ of the Constitution, itโs therefore null and void. ย Game, set, matchโฆhowโs that for four aces?
