Skip to main content

‘dormant commerce clause’

Comments on the Proposed Cannabis Administration & Opportunity Act (“CAOA”)

Aug. 27, 2021—This summer, a working group of prominent United States Senators proposed a new bill to legalize marijuana at the federal level. Building on earlier iterations of the MORE Act, the draft Cannabis Administration & Opportunity Act (“CAOA”) constitutes the most comprehensive federal reform proposal to date. A detailed summary of the measure can be found...

Read more


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

Aug. 23, 2021—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...

Read more


Maine District Court Issues (Another) Decision Invalidating State Residency Requirement on DCC Grounds

Aug. 20, 2021—The federal district court in Maine just issued another decision in the NPG (aka Wellness Connection) v. Maine litigation challenging the state’s residency requirement for medical marijuana licenses. Last August, the same court issued a preliminary injunction barring the state from enforcing the requirement. My analysis of that decision can be found in UPDATE: Federal Judge...

Read more


Three Federal Courts (So Far) Have Held That State Residency Requirements for Cannabis Licenses (Probably) Violate the Dormant Commerce Clause

Jun. 22, 2021—Federal courts in Michigan and Missouri have just issued rulings in lawsuits challenging those states’ residency requirements for cannabis licenses. Both courts found that the plaintiffs were likely to prevail on the merits of their challenges. In particular, both courts held that using residency to award cannabis licenses probably violated the Dormant Commerce Clause (DCC). The...

Read more


Did Federal Judge Give Oklahoma a Free Pass to Violate the Constitution?

Jun. 10, 2021—On June 4, 2021, a federal judge dismissed a lawsuit challenging Oklahoma’s residency requirement for commercial cannabis licenses. The full decision in Original Investments v. Oklahoma is here: Original Investments v. Oklahoma (W.D. Okla. June 4, 2021) (it’s only about 5 pages long). The suit claimed that Oklahoma’s residency requirement violated the Dormant Commerce Clause (DCC). The...

Read more


State Restrictions on Interstate Commerce in Cannabis are Unconstitutional

Mar. 3, 2021—The title of this post is the takeaway of a new law review article I have just posted on SSRN. The article challenges the widely held assumption that legalization states may ban imports of cannabis or otherwise prevent nonresidents from participating in their local cannabis markets. Here is the link to a nearly final draft...

Read more


UPDATE: Federal Judge Finds that State Residency Requirements for Marijuana Licensing are Unconstitutional

Oct. 7, 2020—As I blogged in the summer, Maine has become a hotbed of litigation concerning residency requirements for marijuana licenses. Many states (including Maine, for a time) limit the ability of non-residents to own and operate marijuana businesses. The litigation began when a Delaware firm (Wellness Connection) challenged a provision of Maine’s new recreational marijuana law...

Read more


Locals Sue, Seeking to Force Maine to Re-instate Residency Requirement for Marijuana Licenses

Jun. 27, 2020—As I blogged about earlier, the state of Maine recently abandoned a residency requirement for obtaining commercial adult use marijuana licenses. See Company Sues Maine for Discriminating Against Non-residents When Licensing Marijuana Businesses and UPDATE: Maine Drops Residency Requirement for Adult-Use Commercial Licenses, Moots Legal Challenge. Residency had been expressly required by the state’s adult use marijuana law (the 2018 Marijuana Legalization Act),...

Read more


UPDATE: Maine Drops Residency Requirement for Adult-Use Commercial Licenses, Moots Legal Challenge

May. 13, 2020—A few weeks ago I blogged about an interesting lawsuit challenging Maine’s residency requirement for commercial recreational marijuana licenses. See Company Sues Maine for Discriminating Against Non-residents When Licensing Marijuana Businesses. Brought by a Delaware corporation, the suit claimed that the residency requirement violated the Dormant Commerce Clause doctrine. Although I suggested two reasons why Maine...

Read more


Company Sues Maine for Discriminating Against Non-residents When Licensing Marijuana Businesses

Apr. 2, 2020—A Delaware corporation (Wellness Connection) has sued Maine, challenging a provision of that state’s recreational marijuana law that bars out-of-state companies and non-resident investors from obtaining commercial marijuana licenses. The suit was filed on March 20, 2020, in the U.S. District Court for the District of Maine. The story has been reported in local papers...

Read more