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.

From a policy perspective, too, discarding the Dormant Commerce Clause argument is helpful.  Congress doesn’t know how to do legalize cannabis.  In my field of tax, states are experimenting with all kinds of approaches, and there’s no consensus about which is best.  Some experiments haven’t even gotten underway.  But tax is just a small piece of the cannabis legalization puzzle:  There are tricky problems like testing and packaging where states are experimenting in many ways.  And states are experimenting with ways to share this new cannabis wealth, and to allow ownership for deserving parties.

So Congress is shrewdly waiting to figure out how to legalize before legalizing.   The freer the rein the states have, the more evidence Congress can examine.  Artificially restricting state experiments will not help the process.

Plus, when the profit motive is involved with sales of a problematic and federally illegal drug, isn’t it rational to think that local people might have more of a community spirit than outsiders?  Local people seem more likely to balance the profit motive with a spirit of looking after the good of the community in which they (but not outside investors) live.  

The DCC and cannabis are discussed here:

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