One Toke Over the (State) Line: Constitutional Limits on 'Pot Tourism' Restrictions
22 Pages Posted: 10 Jun 2013 Last revised: 9 Dec 2014
Date Written: December 18, 2013
Among the myriad legal issues confronting states like Colorado that are experimenting with the legalization of marijuana is the need to regulate “pot tourism” by persons from other states where marijuana is not legal. In Colorado, the final recommendations from the Amendment 64 Implementation Task Force included a proposal “to limit purchases by state residents to an ounce at a time and to a quarter of an ounce for out-of-state visitors.” The lower restrictions for nonresidents are designed to deter pot tourists from “smurfing” — visiting a number of different dispensaries to accumulate larger amounts of marijuana with a view to illegally reselling the pot. Colorado’s legislature adopted the Task Force’s recommendation in House Bill 1317, recently signed into law by Colorado’s governor, which established the regulatory framework for the legal sale of marijuana. Among its provisions is a quarter-ounce purchase limit for nonresidents.
Treating purchasers of a legal product differently based on state residency implicates constitutional doctrines that limit a state’s ability to discriminate against nonresidents. This essay is the first to examine the Colorado recommendation in light of two of those doctrines: the Privileges and Immunities Clause of Article IV, section 2 and the dormant Commerce Clause doctrine (DCCD). At first glance, Colorado’s facially discriminatory law appears to be almost certainly unconstitutional under current doctrine. I will argue in the remainder of this essay, however, that Colorado can put forth compelling arguments that its law passes constitutional muster, especially in light of the recent Department of Justice memorandum clarifying its enforcement priorities in light of state legalization. The essay also suggests a role the federal government could play to remove considerable, though not all, constitutional doubt from state regulations of pot tourism.
Keywords: marijuana, Colorado, pot tourism, legalization, Privileges and Immunities Clause, Dormant Commerce Clause Doctrine, Amendment 64, discrimination, Maine v. Taylor, McBurney
JEL Classification: K00
Suggested Citation: Suggested Citation