Flaws in proposed federal marijuana legislation threaten the legal cannabis market, especially failure to pause the Dormant Commerce Clause, say Shaleen Title, the distinguished cannabis policy practitioner in residence at the Ohio State University Drug Enforcement and Policy Center, and Andrew Kline, who co-leads the cannabis practice at Perkins Coie. They suggest some changes.
Cannabis is gaining acceptance, with more than three dozen states and territories having legalized the plant in some form. Cannabis reform has widespread support nationally, with a recent Pew Research Center poll showing that 91% of Americans support legal recreational or medical marijuana use.
And in response to popular demand, states are passing increasingly robust social justice policies providing equitable ownership opportunities, with New York Gov. Kathy Hochul (D) recently announcing a new $200 million fund to promote diversity among licensees in her state’s emerging legal marijuana industry.
Given this trajectory, passing legislation that protects existing cannabis business, small and large, and promotes social equity is critical.
At the federal level, however, cannabis legislation has stalled. Even with a Democratic majority, Congress has been unable to muster the votes to bring any cannabis-related bill to the Senate floor. So, this winning political issue languishes.
Must Address Dormant Commerce Clause
While there are now multiple federal marijuana legalization models pending before Congress, they all contain a little-known but fundamental flaw that threatens the legal cannabis market as we know it. By failing to address the Dormant Commerce Clause (DCC), these bills would hurt cannabis businesses big and small, potentially endanger consumer safety, and jeopardize racial justice progress being made in the states.
What is the DCC? In short, it’s a legal doctrine that bars states from enacting policies that discriminate against interstate commerce. Because of the federal prohibition of cannabis, many states have ignored the doctrine and adopted regulatory programs that serve to benefit and promote the growth of local cannabis businesses. Without specific congressional action to pause the DCC after federal legalization, many critical state regulations and social equity programs that current businesses and licensees rely upon will become void overnight.
While the proposed Marijuana Opportunity Reinvestment and Expungement Act does not contain a regulatory plan, both the Democrat-led Cannabis Administration and Opportunity Act and Republican-led States Reform Act fail to address the disruption that will take place without a thoughtful approach to looming DCC issues.
If Congress intends to take meaningful steps to right the wrongs of the war on drugs and protect businesses small and large, it must explicitly pause the DCC and clearly define the regulatory roles and responsibilities of states. Senate logjams notwithstanding, now is the time to draft a bill that would serve as the best guidepost in the months ahead. And no bill should move forward without clearly centering on equity, justice, and community reinvestment.
Congress Must Act to Avoid Patchwork of State Laws
Federal legalization that immediately triggers the DCC would make protecting public health and safety extremely challenging given probable litigation…
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