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First Circuit nixes Mainers-only weed sales rule

The federal appeals court found 2-1 that marijuana markets are legal enough to be governed by the commerce clause.

(CN) — The First Circuit struck down a Maine law Wednesday which allowed only Maine residents to sell medical marijuana, finding that the rule was “facially protectionist” in violation of the Constitution’s dormant commerce clause. Marijuana’s federal illegality, two judges on the court’s three-judge panel found, does not exempt the weed market from constitutional rules. 

The panel was comprised of U.S. Circuit Judges David Barron, a Barack Obama appointee, Sandra Lynch, a Clinton appointee who replaced Supreme Court Justice Stephen Breyer, and Joe Biden appointee Gustavo Gelpi. 

“The defendants do not dispute that Maine’s residency requirement, if applied to a lawful market, would comport with the dormant Commerce Clause… only if that requirement were ‘narrowly tailored,’” Barron wrote. Maine’s chief deputy Attorney General Christopher Taub, Barron added, had not disputed the idea that the rule would be unconstitutionally protectionist if applied to a legal market. 

He also found that Maine could not cite the federal Controlled Substances Act, which prohibited marijuana’s use nationwide in 1971, in an effort to defend a law which openly contravened it.

“It can hardly be said that a state effort to protect a market in medical marijuana from out-of-state competition necessarily advances Congresses’ evident goal… of preventing entry into that market,” Barron noted. 

The statute “thus threatens, in the way that protectionist measures necessarily do, to encourage precisely what the CSA seeks to stop – trade by in-staters in the relevant market,” he continued. 

Gelpi penned a dissent, arguing that the commerce clause’s protections were meant to promote competition within legal markets, and should not be applied to illegal ones.

“I believe that illegal markets are constitutionally different in kind,” he wrote, “and thus disagree that the Commerce Clause protects the free-flowing operation of national markets the Congress has already made illegal through its Commerce Clause power.” 

Maine legalized marijuana in 2018, following in the footsteps of a growing cadre of states that started flouting the CSA when Washington and Colorado legalized herb in 2012. Several states had legalized marijuana for medical use before that, and more have followed. While the drug remains a schedule-1 narcotic under the CSA, Congress’ 2001 passage of the Rohrabacher amendment prohibited the Department of Justice from interfering with medical cannabis laws, and its annual renewal has also kept the feds from messing with recreational weed states. 

That rule was also brought up when the First Circuit heard the case in April, with plaintiffs’ attorney Matthew Warner, representing the state’s largest marijuana company and its out-of-state parent company, arguing that it represented Congress’ intention to allow the nominally illegal market. Requirements that sellers pay taxes and comply with federal safety and banking regulations, he noted, pointed to the same conclusion. 

Neither Warner nor representatives of Maine’s Department of Administrative and Financial Services, which oversees the state’s legal marijuana sales, responded to requests for comment Wednesday night. 

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