What happened: The federal Ninth Circuit Court of Appeals split with two other circuit courts in ruling that the U.S. Constitution’s dormant commerce clause does not cover cannabis while it remains federally illegal.
The ruling could lead to a Supreme Court review and may eventually lead to interstate cannabis commerce.
What they’re saying: “Although we appreciate that judges on other courts are divided on this question, we see insufficient license in Supreme Court precedent to use the judge-made dormant Commerce Clause to promote a constitutional right to interstate commerce that is unlawful under federal law,” wrote Circuit Judge Daniel Bress in a 23-page unanimous decision.
The ruling involved two cases from the West Coast, Peridot Tree WA Inc. v. Washington State Liquor and Cannabis Control Board and Peridot Tree Inc. v. City of Sacramento. In both cases, the plaintiff argued against the validity of residency requirements for cannabis licenses in Washington state and Sacramento, California, respectively.
Zoom out: Both plaintiff companies are owned by attorney Jeff Jensen, who also mounted legal challenges against residency rules in New York, Maryland, and Rhode Island under the dormant commerce clause.
He won his challenge in New York’s Second Circuit Court of Appeals. The Maryland case and Rhode Island still have pending appeals in the Fourth and First Circuit.
“The possibility that Congress might one day legalize marijuana or that marijuana may at some point become reclassified under the CSA provides no basis for the judicial enabling of a marketplace that is presently not supposed to exist as a matter of federal law,” wrote Bress.
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