Thirty-six US states have currently legalized cannabis in some form, but thanks to the ongoing federal prohibition of marijuana, each state is forced to enact its own unique set of weed laws and regulations. For fear of violating federal prohibition laws, most of these states prohibit the import or export of legal weed across state lines, and some states have even tried to block out-of-state weed businesses from dominating their local markets.
But according to Robert A. Mikos, Professor at the Vanderbilt Law School, state-level prohibition of interstate cannabis commerce may be entirely unconstitutional. In a new essay published in the Boston University Law Review, Mikos “challenges the conventional wisdom that the federal ban on marijuana gives legalization states free rein to discriminate against outsiders in their local cannabis markets.”
Last year, the US cannabis industry sold nearly $18 billion worth of legal weed, but as Mikos notes, none of that pot is “being sold (legally) across state lines... Instead, each legalization state now has its own, hermetically sealed local cannabis market, supplied entirely by cannabis cultivated and processed inside the state.”
With the sole exception of Oregon, every legal-weed US state and territory currently blocks its licensed cannabis producers from importing and exporting weed from other legal states, in order to avoid persecution by federal law enforcement. In his essay, Mikos argues that these state-level prohibitions against interstate weed commerce actually violate the US Constitution.
The Constitution contains a rule known as the Dormant Commerce Clause (DCC), which prevents states from restricting interstate commerce. For example, if North Carolina were to pass a law that forced all state liquor stores and bars to only sell beer brewed in North Carolina, that law would violate the DCC and therefore be unconstitutional.
The essay argues that the DCC legally prevents states from creating restrictions against interstate weed commerce, and some recent lawsuits have already supported this claim. In Maine, a recent legal challenge overturned a regulation that blocked out-of-state businesses from applying for state adult-use weed business licenses.
Unfortunately, this means that larger, multi-state weed corporations will have a greater chance of dominating in-state markets, giving local minority businesses even fewer opportunities to prosper in the cannabis industry.
The Constitution still allows the federal government to ban interstate marijuana commerce, but Mikos believes that the feds would probably turn a blind eye to these interactions. Federal law enforcement already prohibits the cultivation, sale, or use of marijuana for any purpose, but it has done nothing to stop the majority of states from doing exactly that. And since the feds aren't doing anything to stop in-state pot commerce, they might also extend those protections to interstate commerce.
Of course, all of these confusing issues could be clarified by a unified federal cannabis reform law. Both chambers of Congress have separately advanced two different federal legalization bills, and both of these bills would remove federal restrictions against interstate pot commerce.