While the DEA considers rescheduling marijuana to Schedule III of the CSA, a group of cannabis business owners is suing the Department of Justice over fears of federal interference in cannabis tourism. The lawsuit contends that the DOJ has no enforcement authority over cannabis activities regulated within state borders.
Is it a valid argument? The U.S. District Court for the District of Massachusetts, Western Division could ultimately decide should they agree to hear oral arguments on the matter. Personally, I hope the court decides to go along with this latest motion. Whatever decision it returned would bring some much-needed clarity to how much authority states truly have in legalizing cannabis.
The Central Issue
The central issue in this particular case is state control versus federal regulation. Although cannabis is still illegal under federal law, enforcement at the state level has essentially been neutered by legislation that prevents the DOJ from using its funds to prosecute state crimes. Congress has forced the DOJ to turn a blind eye to state-legal cannabis.
However, the DOJ contends that they are not prohibited from going after cannabis tourism because it is regulated under the federal government’s authority over interstate commerce. Indeed, the Supreme Court established that precedent years ago. Under the court’s decision, the federal government can regulate state-level activities related to tourism that brings people in from other states.
In terms of cannabis, the DOJ contends that cannabis tourism brings people into Massachusetts from states that do not allow recreational or medical cannabis. They contend that the desire to purchase and consume cannabis is directly responsible for tourist visits. Therefore, they contend they also have the authority to enforce federal law by going after the tourist trade and those who participate in it.
The Other Side
The other side of the argument says that state-legal cannabis, in Massachusetts and elsewhere, is contained within state borders. What happens in Massachusetts is confined to Massachusetts. What happens in New York is confined within New York’s borders. Therefore, those in favor of cannabis tourism believe it does not qualify as interstate commerce because the activities themselves do not cross state lines.
It is a fascinating argument but one I cannot see the District Court supporting given what the Supreme Court has already said about interstate commerce and tourism. I would be surprised if the court heard oral arguments. And if they do hear the arguments, I will be surprised if they rule in favor of the plaintiffs.
If They Side With Plaintiffs
Let us just say the District Court answers the question by siding with the plaintiffs. Cannabis tourism would continue unabated, at least in Massachusetts. But what would it mean for medical-only states like Utah? In the short term, not much. The District Court’s decision would be restricted to its own jurisdiction. That jurisdiction does not extend to the Beehive State.
In the future however, could residents of prohibitionist states travel to Utah in order to get medical cannabis? According to the experts behind the Utahmarijuana.org website, it would not be possible under current state regulations. Visitors would have to obtain a temporary visitor’s card to gain access to medical cannabis. But getting a visitor’s card requires already having a card issued by the visitor’s state of residence.
Does the DOJ have the authority to enforce federal cannabis laws against the tourism industry? We may find out sooner rather than later. We will have to wait to see what the District Court out of Massachusetts decides. If they find in favor of the plaintiffs, their decision will be a game changer.