Congress shouldn’t impose barriers to interstate commerce Well, one special interest group, the U.S. Cannabis Council (USCC), has taken issue with the liberty being granted to the immediate implementation of interstate commerce. In their formal response to the proposed bill, the USCC argues that allowing interstate commerce without a transition period, as the bill would do in its current form, would “disrupt stable state markets, put public health and safety at risk, and put social equity license holders and other small businesses at risk of immediate extinction.” For these reasons, they recommend delaying the transition to interstate commerce.
Their argument doesn’t hold water. While at first it may sound reasonable, behind the veneer of sensibility, their recommendation is nothing more than a bid to control the marijuana market by implementing unnecessary regulatory hoops for entrepreneurs to clear. It’s a blatant stand against the free market principles that are the bedrock of our economy. And considering what the USCC actually is — a strategic alliance of 65 companies and nonprofits in the cannabis industry, including many of the largest cannabis companies in the nation — it’s likely this stand is tied to their own business interests.
Part of what makes the U.S. economy prosperous is its ability to freely participate in commerce — in particular, interstate commerce. Sec. 511 of the proposed bill provides restrictions on interstate commerce primarily in the form of compliance with federal packaging and labeling, which is something well within the powers of Congress through the Commerce Clause. The USCC takes it a step further and calls for a ban during a transition period of an undisclosed length on interstate commerce under the guise of health and safety, social equity, and to protect and safeguard American jobs and businesses.
Not only is this ban on interstate commerce anti-free market, it would run afoul of the Tenth Amendment’s anti-commandeering doctrine. The USCC would have Congress command state legislatures to forbid interstate commerce. Congress cannot commandeer state governments, this suggestion is unconstitutional. If the goal is to protect American markets, then why not let the market decide which marijuana providers fail and which succeed? Artificially removing competition for the sake of propping up in-state business will lead to poor market development and consumer choice.
So what about current state laws already in place where marijuana is legal? The bill would still provide deference to the individual states for controlling the possession, production, and distribution of cannabis, something the USCC is in favor of. However, the USCC’s suggestions and application of the Dormant Commerce Clause with state law is problematic.
Marijuana legalization is nearing, as 36 states currently have laws in place for the legal use of marijuana for medicinal purposes; compare this to just 8 states in 2000. With public opinion well in favor, and more politicians favoring legalization, even across the political aisle, the general sense is no longer a matter of “if” but “when.” All that is needed is a consensus on how best to implement the federal legalization and then allow the free market to go to work. Recent comments on interstate cannabis, article here.