If you’re not a fan of a Dormant Commerce Clause-ruled post-legalization world, take heart. The Supreme Court has recognized the ability of Congress to suspend the DCC, allowing states to continue operating their insular marketplaces by restricting interstate trade.
In order to suspend the DCC, Congress must use unmistakably clear language that leaves no doubt as to its intention to suspend the clause. Of the many recent reform proposals, only the CAOA imposes any sort of constraints on the DCC, and even that language is weak and limited in scope.
Unless Congress is intentional and explicit in how it addresses the DCC, we foresee a future in which only the best financed producers will be able to move and consolidate their operations in the select states where the environmental and regulatory conditions are most favorable. And although some benefits and efficiencies will be created, they will be overshadowed by the overall devastation to the industry, which currently provides hundreds of thousands of jobs across the country.
Smaller operators more in-tune with the needs of their local communities and historically disadvantaged groups likely will be priced out of participating in this new national marketplace. The efforts to right the wrongs of the War on Drugs, the focus on increasing equitable access for everyone, and the contributions of mom-and-pop, craft operators will be for naught if Congress allows the DCC to drastically alter the industry marketplace overnight.