Last week the First Circuit reached an interesting conclusion: the U.S. Constitution prohibits states from adopting protectionist legislation affecting illegal interstate markets. The case, Northeast Patients Group v. United Cannabis Patients and Caregivers of Maine, involved a state law requiring officers and directors of medical marijuana dispensaries operating in Maine to be Maine residents. The plaintiff sued, seeking to sell their business to a Delaware corporation despite the Maine law. The plaintiff invoked the U.S. Constitution’s so-called Dormant Commerce Clause, which prohibits states from placing substantial burdens on interstate commerce via protectionist legislation.
The fundamental issue in the case was whether the Dormant Commerce Clause applies in the context of illegal markets. The defendants conceded that protectionist legislation, such as the residency requirement in Maine’s medical marijuana law, is virtually always unconstitutional. They argued, however, that the residency requirement was not invalid because federal law makes the interstate marijuana market illegal. If the interstate market itself is illegal, there is at