Legalization Without Disruption: Why Congress Should Let States Restrict Interstate Commerce in Marijuana

56 Pages Posted: 23 Aug 2021 Last revised: 30 Sep 2021

See all articles by Scott Bloomberg

Scott Bloomberg

University of Maine School of Law

Robert A. Mikos

Vanderbilt University - Law School

Date Written: September 27, 2021

Abstract

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.

Keywords: Constitutional law, federalism, dormant commerce clause, interstate commerce, marijuana, cannabis, legal reform, legal transitions, social justice

Suggested Citation

Bloomberg, Scott and Mikos, Robert A., Legalization Without Disruption: Why Congress Should Let States Restrict Interstate Commerce in Marijuana (September 27, 2021). Vanderbilt Law Research Paper No. 21-33, Pepperdine Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3909972 or http://dx.doi.org/10.2139/ssrn.3909972

Scott Bloomberg

University of Maine School of Law ( email )

246 Deering Avenue
Portland, ME 04102
United States

Robert A. Mikos (Contact Author)

Vanderbilt University - Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States
615-343-7184 (Phone)
615-322-6631 (Fax)

HOME PAGE: http://law.vanderbilt.edu/faculty/faculty-detail/index.aspx?faculty_id=227

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