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I am wondering about the laws of Dina d'malchuta dina in the United States when there is a contradiction between state and federal laws.

Case in point: In 2012 both Colorado and Washington passed state legislation that legalized the use of recreational marijuana. However, marijuana is still illegal under the federal Controlled Substance Act. Until recently1, the US Justice Department was still considering what policy to approach in such a discrepancy, which revolves around the ambiguously implied exo-constitutional powers stipulated in the 10th amendment2.

All of this makes me wonder about what the halacha would say. Disregarding the halachic issue of drug use, is it permissible to do something that's legalized in your state but illegal federally? What does the halacha say about state/federal conflicts of laws?

I'm not so familiar with current American state laws, otherwise I would have picked an example that is only halachically problematic because of its dina d'malcuta dina issue (and as has been answered previously, the issues of marijuana are broader than that).

1. As of August 29, 2013, Attorney General Eric Holder has authorized Washington and Colorado "to create a regime that would regulate and implement the ballot initiatives that legalized the use of marijuana for adults."

2. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

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  • This would seem to depend on what (secular) law says about state vs federal law. I guess that's not clear or there wouldn't be a question, but does dina d'malchuta dina require that the dina be unambiguous, I wonder? Or does it allow you to pick your interpretation until the courts rule?
    – Monica Cellio
    May 1, 2013 at 14:52
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    +1 Great question! Consider taking marijuana out of the title in order to help deëmphasize it.
    – Double AA ♦
    May 1, 2013 at 15:37
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    Aryeh, the 10th Amendment doesn't apply to the situation where state and federal laws contradict each other. It determines when the federal government is able to have such a law in the first place. Once it does, Article VI becomes the important part. It is possible that eventually courts will rule that marijuana regulation does not fall under the powers reserved for the federal government, but that has not happened yet.
    – Daniel
    May 1, 2013 at 19:17
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    I once learned that dina d'machutah dina only applied to financial issues of the government like taxes, but not to other issues. Does anyone know whose position this represents?
    – RCW
    May 2, 2013 at 4:10
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    If you want to ask a new question, you should post a new question rather than editing an already-answered one.
    – Isaac Moses ♦
    Aug 29, 2013 at 19:14

4 Answers 4

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The answer to this question specifically about the United States has to do with Article VI of the U.S. Constitution. Article VI Clause 2 reads

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

This means that the laws of the states are overruled by federal laws. As I mentioned in a comment above, the 10th Amendment to the Constitution only discusses what the federal government may legislate in the first place, and says nothing about conflicting state and national laws.

In the case of marijuana, this means that its nation-wide ban overrules the legality within states, and the "law of the land" is that it is illegal. In fact, the FBI has even raided a few marijuana dispensaries in those states where it is "legalized" for various reasons. The national government has decided that marijuana enforcement will have a low priority; however, it is still illegal all over the country.

Therefore, the rules of Dina Demalchuta alone are enough to prohibit the smoking of marijuana in the United States. And in general, for the purpose of determining what the Dina Demalchuta is when state law contradicts federal law, federal law is the law of the land.

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  • I don't know much about constitutional law, but doesn't the Supremacy Clause require some action from Congress in order for it to apply? If the states claim recreational marijuana is outside the constitution, where would the issue stand before the case goes to the Supreme Court?
    – Aryeh
    May 1, 2013 at 19:28
  • @Aryeh, what are you asking about? Are you asking about the case where the federal and state laws simply contradict each other, or the case where a state or individual thinks that federal law might be unconstitutional? If it's the latter case, what does the fact that it is legalized in some states have to do with anything?
    – Daniel
    May 1, 2013 at 19:32
  • @Aryeh, to me, what you have written strongly implies the former question. If you meant the latter, I would recommend rewriting the question.
    – Daniel
    May 1, 2013 at 19:39
  • Perhaps you can help explain the issue. I don't understand how the state can be allowed to legalize something that is essentially illegal in the law of the land. Why pass any such state legislation at all if it conflicts with federal laws?
    – Aryeh
    May 2, 2013 at 6:21
  • @Aryeh, in general, there is no practical point to it. Many states have such laws and even clauses/amendments to their constitutions that go against federal law. This could happen either because federal law changed after the state law was in place, the state legislators didn't realize there was a federal law, or (most often) the state legislators think the federal law is bad and so they pass a conflicting law even though it does not have any power. In the case of marijuana, the federal government has made it clear that it doesn't really care that much about it, and so won't enforce it (cont)
    – Daniel
    May 2, 2013 at 13:10
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First off: halacha still prohibits marijuana, for all sorts of other reasons! What follows here is a theoretical discussion of dina demalchusa.

One limitation is that the law must be "that of the kingdom", not just the whims of a particular king. If a law is completely bizarre and a total departure from anything ever enacted before, that can't be called "the law of the kingdom." I think the prohibition on marijuana is accepted enough that it is the "law of the kingdom", yet my suspicion is that legalization is not considered too out-there and bizarre either.

Rambam (based on consensus developed by the Gaonim) rules (end of Laws of Theft & Loss, Ch. 5) that if you're not sure which government is actually ruling at this moment in time (e.g. various warlords are jockeying for power), we determine government de facto as the one whose currency people actually use. I wonder how that would play into the discussion.

Probably the most relevant question here -- and I'm dodging your actual question of state-vs.-federal -- is if a law is on the books but not seriously enforced, is that covered by dina demalchusa dina? The Gemara discusses taxes and drafts, which governments take quite seriously. Rabbi Aharon Soloveichik zt'l was of the opinion that dina demalchusa prohibits one to make a rolling stop through a stop sign at 3AM with no cars anywhere in sight; other rabbis are of the opinion that it only applies to things the state actually prosecutes or cares about. (Though as one teacher put it, "there's a daf yomi chaburah at the Correctional Institution in Otisville made up of people who all thought that too.")

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    I'd argue that smoking marijuana is not the same situation as "making a rolling stop through a stop sign at 3AM". You probably wouldn't get a ticket for that even if there was a cop sitting right there watching you do it. The FBI has raided marijuana dispensaries in states where it is "legal"
    – Daniel
    May 1, 2013 at 19:28
  • @Daniel thank you, I wasn't aware of that. If Federal Government routinely(?) prosecutes dispensary operators, and Federal Government prints money that we use, then I'd think a simple reading of dina d'malchusa would prohibit running a dispensary.
    – Shalom
    May 1, 2013 at 19:47
  • Yes, I agree. Although they don't exactly "routinely" prosecute dispensary operators. The often raid dispensaries that are near schools, etc. This is an example of the federal government applying the law in only limited cases, but I think that this shows that the law is enforced.
    – Daniel
    May 1, 2013 at 19:50
  • So you're saying it's a makhloket? As I noted in Daniel's answer, I'm wondering if dina demalchusa applies when the feds don't really care that much to enforce it as a general policy. Does the marginal raiding, as Daniel noted, make this something they care about?
    – Aryeh
    May 4, 2013 at 19:08
  • @Aryeh - IF the government doesn't generally enforce it, it's a machlokes. I don't know what you call sporadic enforcement. As for state vs. federal (assuming it is enforced, or according to those who don't care) -- I think Rambam's currency criterion tells us to go with federal.
    – Shalom
    May 5, 2013 at 3:26
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There is the first issue of whether secular laws of the United States or any of its state or localities are recognized under dina demalchusa dina, and if so, what categories of laws are recognized and which are not. As that question has been posed elsewhere, I'm going to not discuss it now, but note that there is a dispute regarding the view of the Aruch HaShulchan who supposedly implied that the laws of a democracy, such as England, would be recognized as being applicable. Since the Aruch HaShulchan also included "Mother Russia" as an example of equitable laws, many rabbis have questioned whether the opinion was that of the Russian censors. Rabbi Yitzhok Breitowitz, however, has suggested that if that were true, then England would never have been mentioned in the text -- he speculates that the Aruch HaShulchan, himself, mentioned Russia precisely not to irritate Russian censors but that implicitly, he was only talking about Democratic government such as England. Based on that, I'm assuming that all types of Federal, State, and local laws and regulations come under the title of dina demalchusa dina.

Now regarding the secular law -- welcome to the new era of the resurrection of the 10th Amendment brought to us thanks to Justice Scalia. You are going to have to look at jurisdiction to indicate which laws apply. If the drug was manufactured in one state and transported to another state, either at farm-, wholesale- or retail-levels, then Federal Law is going to apply as Congress has the right to regulate interstate commerce. So, the Feds arguably have no jurisdiction if the marijuana was grown, bought and consumed within the state. I have no clue how the District of Columbia is going to be able to effect its recent vote to legalize recrational use of marijuana for that reason. If you ask whether you can buy marijuana in Colorado or Washington when it was grown out of state, I would think that the retail purchaser is off the hook, but the wholesale distributors and the retailer sellers could have problems with the Feds. As I am not licensed to practice law in Colorado or Washington, I have to advise that I am not presenting a legal opinion or offering legal advice, and you rely on these thoughts about the academic issue, at your peril.

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I have no source for this besides for logical conclusion.

Dina d'malchuta should apply to whatever is the law of the land. If it is the state law that is binding when in opposition to federal law, then the state law would be the one that counts. If federal law overrides state law (as is the case), then federal law applies.

Again, simple logic.

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