Categorized | Opinion



Can a state pass and enforce a law that is in opposition to a federal law?

Those who think not cite what is called the Supremacy Clause, which they interpret to say that federal law is supreme over state law. Some would argue that the states cannot pick and choose which laws they choose to honor.

But, what exactly does the Supremacy Clause say? Article Six, Clause Two states: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof … shall be the supreme Law of the land. Those who are unknowing – or are deliberately misleading – contend that this clause says that U S law trumps state law.

“Thereof” refers to the Constitution. Laws are to be made in pursuance to the Constitution. What about “shall be made in Pursuance” thereof? Pursuance means following or in keeping with. Thus only those laws that are in keeping with the Constitution are the supreme law of the land. And, those not in keeping with the Constitution are not valid laws. In order for them to be constitutional and enforceable they must be found in the list of allowable and enumerated laws.

And, who is to say what is constitutional? The states based on the Constitution itself. If the law is about something that is not listed in the Constitution, then it is unconstitutional and the Supremacy Law eliminates it as having supremacy over state laws.

The better question would be – when does federal law trump state law – and it is clear that it does so only when the federal law is constitutional, when it is found in the enumerated powers.

Sue Long

About Tom White

Tom is a US Navy Veteran, owns an Insurance Agency and is currently an IT Manager for a Virginia Distributor. He has been published in American Thinker, currently writes for the Richmond Examiner as well as Virginia Right! Blog. Tom lives in Hanover County, Va and is involved in politics at every level and is a Recovering Republican who has finally had enough of the War on Conservatives in progress with the Leadership of the GOP on a National Level.

3 Responses to “User Submitted: DOES FEDERAL LAW TRUMP STATE LAW ?”

  1. Anonymous says:

    Isn’t the issue resolved by virtue of the fact that once a State passes a law in conflict with federal law, you would almost inevitably have a lawsuit which would therefore determine whether said federal law is or is not Constitutional?

    • elena says:

      An assistant state attorney general, when asked why the congressional term limits were still in the state constitution(MT) though declared illegal by SCOTUS (Arkansas), “There are a lot of illegal laws on the books.” Only if and when someone challenges them, they may make it to the supremes. One, you have to have the time and money to challenge them and two, you have to depend on prosecutorial and/or court discretion.

      BTW now a days there is no “virtue of fact” in the courts.

  2. Sandy Sanders

    Clever approach but as a practical matter the Federal law will be struck down if unconstitutional and if not it is supreme. I think nullification is a political remedy not a legal one; in effect it is states saying to the Feds: You’re ahead of the people on this issue. Congress gets the message and repeals or modifies the offending law.
    Thanks for coming by.



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Tom White Says:

Nothing is more conservative than a republican wanting to get their majority back. And nothing is more liberal than a republican WITH a majority.

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