Paper: Interstate Commerce in Cannabis

Interstate Commerce in Cannabis

40 Pages Posted: 3 Mar 2021 Last revised: 20 Jul 2021

 

Robert A. Mikos

Vanderbilt University – Law School

Date Written: March 2, 2021

Abstract

A growing number of states have authorized firms to produce and sell cannabis within their borders, but not across state lines. Moreover, many of these legalization states have barred nonresidents from owning local cannabis firms. Thus, while cannabis commerce is booming, it remains almost entirely intrastate. This Essay provides the first analysis of the constitutionality of state restrictions on interstate commerce in cannabis. It challenges the conventional wisdom that the federal ban on marijuana gives legalization states free rein to discriminate against outsiders in their local cannabis markets. It also debunks the justifications states have proffered to defend such discrimination, including the notion that barring interstate commerce is necessary to forestall a federal crackdown on state-licensed cannabis industries. The Essay concludes that the restrictions legalization states now impose on interstate commerce in cannabis likely violate the Dormant Commerce Clause (DCC). The Essay also examines the ramifications of this legal conclusion for the future of the cannabis market in the United States. It suggests that without the barriers that states have erected to protect local firms, a new breed of large, national cannabis firms concentrated in a handful of cannabis-friendly states is likely to dominate the cannabis market. This development could dampen the incentive for new states to legalize cannabis and further diminish minority participation in the cannabis industry. To address these concerns, congressional legislation may be necessary, because individual states have only limited capacity to shape the national market and the firms that compete therein.

Keywords: marijuana, marihuana, cannabis, dormant commerce clause, interstate commerce, intrastate commerce, residency, resident, nonresident, discrimination, import, export, csa, controlled substances act, Cole Memorandum

Mikos, Robert A., Interstate Commerce in Cannabis (March 2, 2021). 101 Boston University Law Review 857 (2021), Vanderbilt Law Research Paper No. 21-09, Available at SSRN: https://ssrn.com/abstract=3796262

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