The U.S. cannabis industry is growing at a fast pace, and it’s showing no signs of slowing down.
But the future of legalization isn’t all green pastures: Joe Biden is showing little interest in loosening federal restrictions, and the nation’s courts may ultimately force the issue in a chaotic fashion that could undermine efforts to diversify the industry and protect public health.
The Courts vs Cannabis
Recently, a federal appeals court struck down a state law that required all owners of medical marijuana businesses in Maine to be residents of the state. The decision was handed down by the 1st Circuit Court of Appeals, which ruled in a 2-1 opinion that the residency requirement violated the Dormant Commerce Clause and was unenforceable.
The case was brought by multi-state marijuana operator Acreage Holdings, which had planned a merger with a Maine medical marijuana dispensary but failed after being unable to acquire a license under state law because it did not meet residency requirements. The company sued the state over this requirement, arguing that it violated the Commerce Clause of the Constitution, which gives Congress authority over interstate commerce.
The court agreed, ruling that Maine’s residency requirement was unconstitutional. The court could have sweeping implications for Massachusetts’ social equity programs, which are designed to help people who have been disproportionately affected by the war on drugs access legal cannabis.
The legal basis for the ruling could also be used to strike down similar programs across the country, from California to Colorado to New York. To fight this, a coalition of caregivers in Maine petitioned the court for a rehearing, but the 1st Circuit sadly denied their petition. Caregivers argued that no lawful national marijuana market exists, so Maine’s regulation of its in-state market does not violate the dormant Commerce Clause.
Cannabis Commerce Laws
The Commerce Clause, which gives Congress the power to regulate interstate commerce, has been used to justify the federal prohibition of marijuana. But what happens if the Commerce Clause doesn’t apply?
In theory, it would mean that states could regulate marijuana however they want, but in practice, it could mean that federal law enforcement agencies could just ignore state laws and keep enforcing federal prohibition.
And if the Commerce Clause doesn’t apply to marijuana because it’s a federally illegal industry, it raises questions about other federal laws like those against prostitution and gambling. The potential for this case to set a precedent is one reason it’s so controversial.
Still, even if the Commerce Clause doesn’t apply to states that have legalized marijuana, there are still plenty of ways the federal government can enforce restrictions on pot: For example, they could enforce drug trafficking laws against anyone who transports cannabis across state lines — which would make it difficult for businesses in legal states to expand into other states or export their products internationally.
The Future Of Legislation
We’re in a weird place as a country right now.
On the one hand, we have more states legalizing cannabis than ever before, and the majority of Americans support legalization. On the other hand, cannabis is still federally illegal — meaning no matter how many states have legalized it, there’s nothing stopping federal agents from coming into your business and arresting you for selling it.
And here’s where things get really weird: even though cannabis is illegal federally and interstate commerce is illegal, California Gov. Gavin Newsom signed a bill earlier this month that would allow the state to enter into agreements with other states to regulate the import and export of cannabis product.
When it comes to cannabis legalization, courts are playing a larger role than ever before in American history. The federal government is now poised to challenge state laws that prohibit marijuana sales, following the Supreme Court’s decision to allow states to regulate and tax marijuana.
With different regulations in place in each state for things like lab testing, advertising, and taxes, this could cause issues for existing state programs that have sprouted up in isolation.
Companies are likely to challenge state regulations on things like labeling and packaging if federal courts rule that states cannot prohibit the import and export of marijuana across state lines. If the courts create a national market, businesses can simply pick up and relocate to the most lenient states.
In a perfect world, we’d be able to just legalize cannabis federally and come up with a uniform legalization method. Unfortunately, that isn’t the case.
While some states have legalized cannabis, others haven’t. The federal government still considers it illegal. And even if it were legalized at the state level, you could still be arrested if you crossed state lines with it. So while we wait for Congress to act on this issue (which they should), we need a way to make sure our citizens who use cannabis are safe from prosecution by law enforcement officers in other states.
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