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New Article on the Hidden Problems Posed by Federal Legalization, and a New Way to Address Them

Posted by on Monday, August 23, 2021 in News, Updates.

Scott Bloomberg (Maine Law Professor) and I have just written a new article that comprehensively catalogues the problems that might arise if Congress were to suddenly legalize marijuana and thereby unleash the Dormant Commerce Clause (DCC) on the states. (As I’ve explained elsewhere, see here, I think the DCC may already be on the loose in this field; but federal legalization would remove any doubts about that conclusion.) The article also recommends a solution for defraying these problems.

The full article is now available on SSRN. Here are the details, including where you can download it:

Scott Bloomberg & Robert A. Mikos, Legalization Without Disruption: Why Congress Should Let States Restrict Interstate Commerce in Marijuana (August 2021)


Over the past twenty-five years, states have developed elaborate regulatory systems to govern lawful marijuana markets. In designing these systems, states have assumed that the Dormant Commerce Clause (“DCC”) does not apply; Congress, after all, has banned all commerce in marijuana. However, the states’ reprieve from the doctrine may soon come to an end. Congress is on the verge of legalizing marijuana federally, and once it does, it will unleash the DCC, with dire consequences for the states and the markets they now regulate. This Article serves as a wake-up call. It provides the most extensive analysis to date of the disruptions the DCC could cause for lawmakers and the marijuana industry. Among other things, the doctrine could spawn a race to the bottom among states as they compete for a newly mobile marijuana industry, undermine state efforts to boost participation by minorities in the legal marijuana industry, and abruptly make obsolete investments firms have made in existing state-based marijuana markets. But the Article also devises a novel solution to these problems. Taking a page from federal statutes designed to preserve state control over other markets, it shows how Congress could pursue legalization without disruption. Namely, Congress could suspend the DCC and thereby give state lawmakers and marijuana businesses time to prepare for the emergence of a national marijuana market. The Article also shows how Congress could make the suspension temporary to allay any concerns over authorizing state protectionism in the marijuana market.

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