A new report from congressional researchers says that a split among circuit courts about whether state marijuana business licensing systems can discriminate against out-of-state residents “likely increases the odds” that the Supreme Court will take up and resolve the issue.
The Congressional Research Service (CRS) report, published on Thursday, examines the Dormant Commerce Clause of the U.S. Constitution, which has been interpreted by the Supreme Court to bar protectionist state laws that unduly restrict interstate commerce even in areas where Congress has not directly weighed in.
As more states have legalized marijuana, some have enacted policies that favor business run by in-state residents over those led by people based in other states. Some of those polices have been challenged with federal lawsuits, and appeals courts have reached different conclusions about the issue.
The U.S. Court of Appeals for the for the Second Circuit, for example, ruled that a New York policy that prioritizes licensing for cannabis businesses run by people who have been convicted of marijuana-related charges under that state’s laws, or have a relative with such a conviction, likely violates the Dormant Commerce Clause.
“The Commerce Clause prohibits the enforcement of state laws driven by economic protectionism—that is, regulatory
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