Wrong again

After spending weeks writing an article warning of the dangers of interstate commerce or federal legalization for states that (1) tax marijuana by weight (Alaska, California, Colorado, Maine, and Nevada) or (2) collect pre-processing (Canada; Alaska, California, Colorado, Illinois, Maine, and Nevada) and publishing it in Tax Notes, I remembered that New Jersey did both.

I’ve made lots of mistakes before; and list some here:  https://newrevenue.org/2015/01/28/3-errors-in-laws-to-tax/.


Partial abandonment of hope on DCC and marijuana

Yesterday, I posted a hope that the Dormant Commerce Doctrine does not apply to federally illegal cannabis.

My friend Rob Mikos, a law professor at Vanderbilt and probably the leading expert on marijuana federalism, graciously responded to an email copying that post, writing, “I agree with the policy argument, but not the legal one.”

He points out that the Dormant Commerce Doctrine is old and settled law, operating in the face of the 10thAmendment for centuries.  He’s the expert, so I’ll back off from any hope that as a practical matter the 10th Amendment will come to the rescue of state freedom here.

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The Dormant Commerce Clause and Marijuana

The Dormant Commerce Clause cases that force states to accept out of state owners for local cannabis licenses strike me as wrongly decided.  

Congress’s faint, implied, “dormant” display of intention to open markets in an illegal substance to all comers seems dwarfed by the 10th Amendment’s express and overriding reservation of power to the states to do whatever the heck they want.  “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The Constitution doesn’t prohibit states from regulating commerce – Congress can allow them to regulate commerce, though it rarely does.

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