Can the US use a treaty to preempt state laws?

The sale and possession of marijuana is legal in Washington for recreational and medicinal purpose

Instructions

Materials Permitted: You will be allowed to use your textbook, your notes and any other materials to answer the questions on the final exam, although you will be able to write a perfect answer to any question using only the textbook.Collaboration with other persons is prohibited.

Subjects Covered: The assignment will deal with material and topics that were covered in the readings assigned throughout the entire course.

Assumptions: If you need additional facts not given in the question, please state what facts you have assumed and why you need them to answer the question. Do not make assumptions that are inconsistent with the facts given or which in any significant way alter the questions.

Time Frame: Please apply the precedents and doctrines as they are today. Do not apply cases and doctrines that have been superseded.

Ambiguities: If you find the facts given in the essay portion of the exam to be insufficient to support one of your issues, state any additional factual assumptions you deem necessary and analyze the issue as though your assumptions were a part of it. However, do notmake the mistake of changing the question by changing the facts. If you areabsolutely convinced that there is a typographical or other error in the essay portion of the exam, make an assumption, state it on your answer to the essay, and then address the issue as corrected by you.

Grading: You will be graded on the clarity, persuasiveness and legal accuracy of your answers.

Citations:

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Non-Cases: Students should use the Chicago Manual of Style format throughout the paper for citations and format for sources that are not judicial decisions. For more about the Chicago Manual of Style format, see Chicago Manual of Style Resources tab on the course BBLearn Website.

Judicial Decisions: Students should merely cite the name of the case and the date. You do not need to follow the Chicago Manual of Style format for these citations.

Length: Your answers to each question may not exceed 600 words. Be Concise!

Answer Formats: You are permitted to use headings and outline format if you wish when organizing and writing your answer.

Submission: Please submit your assignment via the course BBLearn website. Can the US use a treaty to preempt state laws?

Due Date:December 11, 2017 (11:59pm)

Fact Pattern One:

The sale and possession of marijuana is legal in Washington for recreational and medicinal purposes. Jan Stevens is thinking of opening a marijuana shop in Pullman, WA, but she has several concerns about getting into the business.

First, Jan knows that although sale and possession of marijuana is legal under Washington state law, it is illegal under federal law. Although the federal government is currently choosing not to enforce the federal drug laws against people who are selling marijuana in compliance with state law, she knows that could change at any time should a president decide to change policy. Also, Jan knows that state law could change at any time, and she is worried about the financial losses that she could suffer if she makes contracts to sell marijuana, only to have the state change the law and prohibit the sale of marijuana.

Question 1: Imagine that a president decided to seek a court order seizing all businesses selling marijuana, on the grounds that these establishments are engaged in the sale of illegal drugs. Would the president prevail in federal court with the argument that state laws permitting the sale of marijuana are preempted by federal laws banning the sale of marijuana, and that these businesses are, therefore, engaged in a criminal enterprise? (15pts.)

Question 2: Image that Washington voters later changed their minds, and decided to make the sale and possession of marijuana illegal again. Does the Contract Clause prohibit Washington from banning the sale of marijuana when such a law would nullify an existing contract for the sale of marijuana between two Washington residents? (15pts.)

Fact Pattern Two:

President Betty Kane has two problems.

First, the governments of Canada, the United States, and Mexico have decided to dramatically increase the level of economic and social integration. In an effort to make it easier for labor to move throughout the continent, the three countries agreed to a treaty that allows the citizens of the three countries to work and live in any one of the countries without having to go through a complicated visa and work permit application process. The treaty and accompanying implementing legislation were approved by all three countries according to their constitutional processes. Can the US use a treaty to preempt state laws?

As a part of this move towards integration, the three governments saw the need to make professional licensing portable. Many professionals (i.e. engineers, doctors, real estate agents, etc.) require licenses from state governments to sell their services, and getting new licenses in different jurisdictions can be expensive and difficult. The right to regulate this licensure has always been considered to be a power that was constitutionally left to the states. In order to facilitate the easy movement of labor and capital among the three countries, it was agreed in the treaty that all of them would make licensing as portable as possible. To this end, the US government as passed implementing legislation giving the executive branch the right to set national standards for professional licensing in many areas. However, many states have objected to this imposition on their right to control licensure in their jurisdictions, and are threatening to sue to have the law enjoined in federal court.

President Kane’s second problem is more serious and more personal. The Central Intelligence Agency recently brought to the president’s attention that a reporter from the Moscow – Pullman Daily News found out about a top secret program that the was being conducted by the National Security Agency and the CIA to spy on Americans suspected of having links to terrorist organizations. The program was being implemented in the United States, and involved break-ins, wiretaps, buggings and other sorts of surveillance without warrants or judicial oversight. The CIA said that the program was very valuable, and that it had yielded valuable intelligence that had thwarted several terrorist plots on U.S. soil. In order to protect the program’s secrecy, the CIA Director recommended that the reporter be killed, but that the death be made to look like an accident. President Kane approved this plan, and the reporter died several days later in what appeared to be a car accident.

Question 1: Can the U.S. use a treaty to preempt state laws on licensure? (15pts.)

Question 2: Could President Kane be sued civilly by the reporter’s family for wrongful death after she leaves office, should it ever be revealed that she ordered the murder while in office? (15pts.) Can the US use a treaty to preempt state laws?

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