@IllusiveBrian had a highly voted and (in my opinion) useful comment on this post about maternity leave laws in the US:

I wonder if we need a canonical question explaining the role of the US Federal government for those unfamiliar with how the US Federal-State dichotomy works. I feel like there are a lot of questions like these that mistake the US Federal government as the only government in the US.

This is relevant because there are many states that have (different) versions of maternity leave laws, just nothing passed at the Federal level.

Would it be useful for us to create this canonical question? If so, what would it look like?

We have a recent example of how not to do it: Would it be reasonable to see each US “state” as a country in their own, nowadays? [on hold]. Clearly that one is too broad and also just kinda weirdly worded.

Maybe we should restrict it to the purview of state laws vs federal laws? Something like:

In the US, what is the relationship between federal laws and state laws?

Is there a clear division of responsibility between the kinds of laws that can be passed by state legislatures as compared to the kinds of laws that can be passed by the US Congress?

Do certain kinds of laws "belong" in one place?

Or can they pass anything they want and leave it up to courts to figure it out?

If there is a conflict between laws passed by a state and federal law, which one wins?

Or is that too narrow to be the kind of canonical question @IllusiveBrian was thinking of?

EDIT: So... do the upvotes (without comments or answers) mean you like my proposed question above? Or just that you support the general idea?

In line with the SO "be bold" policy, I shall post this to the main site later today, unless there are objections. I will link to this post in a footnote for context.

EDIT 2: Posted: In the US, what is the role of and relationship between federal law and state law?.

I welcome your answers there.

Meta comments still welcome here.

  • Note that this same question about paid maternity leave also inspired a different meta-question, this one about WHY questions.
    – BradC
    Commented Nov 13, 2017 at 20:38
  • Do you intend for the first question to really be about what kinds of laws can be passed at each level or should it be what kinds of laws are typically passed at each level? There are many things where it's common for it to be done at one level or another, but where there's no legal reason why a different level couldn't do it. There are a lot of things the federal government could do, for example, that it instead leaves up to the state and/or local governments (sometimes just because of convention, sometimes because it's more efficient that way.)
    – reirab
    Commented Nov 20, 2017 at 20:39
  • @reirab I would think a good answer should describe both what is possible and what is typical. Not sure that I agree the federal government has as much unilateral ability as you seem to think - there is frequent pushback from states through the courts, and sometimes the only lever they have is to threaten federal fund sources (which is a significant lever, I admit).
    – BradC
    Commented Nov 20, 2017 at 20:54
  • Ok, thanks. Would you mind editing to reflect that it should mention both what's possible and what's typically done in practice?
    – reirab
    Commented Nov 20, 2017 at 20:57
  • @reirab Will do. And maybe a good answer might be "there are no clear-cut rules, only 250 years of extremely messy and convoluted precedent".
    – BradC
    Commented Nov 20, 2017 at 20:58
  • @reirab Edited. Wondering if I'm making the question overly broad, let me know what you think.
    – BradC
    Commented Nov 20, 2017 at 21:06
  • Yeah, this honestly is a very broad question. It is all inter-related, though. I could see arguments either for leaving it all together or for, say, posing them as separate questions and perhaps making an FAQ list of them on Meta (possibly just in an answer on this meta question.)
    – reirab
    Commented Nov 20, 2017 at 21:13
  • @reirab For what it's worth, I don't think a good answer would need to dig super deep into the full details of, say, the minimum wage example, or how federalism is viewed by conservatives and liberals. A brief explanation "yes, conservatives tend to lean toward more laws at the state/local level, liberals tend to do the opposite." with perhaps some further outside links. Kind of a 101-level primer. I hadn't intended to create my own answer, but perhaps I will attempt it.
    – BradC
    Commented Nov 20, 2017 at 21:14
  • @reirab Edited the other direction, to trim down scope a bit, is that an improvement?
    – BradC
    Commented Nov 20, 2017 at 21:45
  • Yeah, I think that's an improvement. I've posted an answer, though I may add some to it.
    – reirab
    Commented Nov 20, 2017 at 22:02

1 Answer 1


In order to devise a canonical question about US Federal vs State Law you must first accept that Jury nullification exists de facto with enough strength that it might as well have been de jure. Failure to do so will result inherently in a worse definition and most likely unusable. Consider Colorado's legalization of recreational pot. A strict construction says unt-uh but in fact the federal government is powerless to enforce its will.

  • I deliberately picked an example with a fight I have no dog in.
    – Joshua
    Commented Nov 22, 2017 at 21:15
  • Maybe this should be a comment on answers on the mainsite question. Or be expanded into its own answer there.
    – user9389
    Commented Nov 22, 2017 at 23:04
  • @notstoreboughtdirt: I was expecting this to be politically decisive enough to prove my point by example.
    – Joshua
    Commented Nov 23, 2017 at 0:11
  • Not sure jury nullification is much of a real factor, frankly. First, the vast majority of cases in both state and federal courts are pled out, and don't go to a trial. Second, most juries don't know about nullification. With regards to legalization, the feds absolutely have the legal ability to perform raids and arrest people for federal drug crimes, they've simply chosen not to do so, for practical and political reasons.
    – BradC
    Commented Nov 27, 2017 at 14:31
  • @BradC: The difference is when it comes to trial any locally drawn jury pool will contain a majority that think it is legal, and the defense attorney will know that so it will not be pled out.
    – Joshua
    Commented Nov 27, 2017 at 16:10
  • At work I can't click on the pot-advocate sites I get when I search on this topic, but even if jury nullification was a significant factor in why the feds are hesitant to enforce federal laws in states that have legalized, I'm wondering if it is broadly relevant, or just an interesting side rabbit-hole about this narrow issue. After all, this is supposed to be a 101-level question about how federal law and state law generally interact, not a deep-dive into pot laws specifically. Are there other kinds of laws where we see the same thing?
    – BradC
    Commented Nov 27, 2017 at 16:45
  • @BradC: The unseen and unspoken threat of doing so keeps a lot of stuff in check. It's not the rare case of defiance that does it but the more common case of being wary of making a lot of people groups really want to do it.
    – Joshua
    Commented Nov 27, 2017 at 16:48
  • @Joshua You might be right, and if you've got some good sourcing (not sure I'd consider pot advocacy sites), it might be worth its own answer, especially if you can find concrete examples outside of drug legalization.
    – BradC
    Commented Nov 27, 2017 at 17:17

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