Commandeering

Commandeering is an act of appropriation by the military or police whereby they take possession of the property of a member of the public.

In United States law, it also refers to federal government actions which would force a state government to take some action that it otherwise would not take.[1] The US Supreme Court has held that commandeering violates principles designed to prevent either the state or federal governments from becoming too powerful.[2][3] Writing for the majority in 1997 for Printz v. United States, Justice Antonin Scalia said, "[t]he Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program."[4] States derive their protection from commandeering from the Tenth Amendment.[5]

Distinction from preemption

The Congress may enact federal law that supersedes or preempts state law, making the state law invalid. The distinction between commandeering and preemption is at issue in Christie v. NCAA, a case involving sports betting.[6][7]

In the case of marijuana legalization, federal law preempts laws in those states that have authorized its use. The federal government has chosen not to enforce provisions of federal law that apply to otherwise law-abiding adult use in those states. If the Department of Justice were to challenge these state laws, a likely legal objection would be that this is commandeering.[5]

See also

References
  1. Conant v. Walters, 309 F.3d 629 (9th Cir. October 29, 2002).
  2. New York v. United States, 505 U.S. 144 (1992).
  3. Printz v. United States, 521 U.S. 898 (1997).
  4. Printz v. United States, 521 U.S. 898, 935 (1997).
  5. Schwartz, Davis (March 21, 2013). "High Federalism: Marijuana Legalization and the Limits of Federal Power to Regulate States". Cardozo Law Review. 35 (567). SSRN 2237618.
  6. de Vogue, Ariane (4 December 2017). "Chris Christie goes to the Supreme Court on sports betting". CNN. Retrieved 4 December 2017.
  7. Stern, Mark Joseph (4 December 2017). "Chris Christie's Big Gamble: The Supreme Court appears poised to let every state authorize sports betting". Slate.
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