As states navigate the distribution of marijuana business licenses, a number of markets have implemented state residency as a condition to apply for or receive a license.
However, as three recent court cases have addressed, residency requirements might be in conflict with the implicit dormant commerce clause of the U.S. Constitution, which generally prohibits states from passing legislation that discriminates against or excessively burdens out-of-state citizens compared to in-state citizens.
The clause expressly grants Congress the right to regulate commerce among states, although courts have interpreted it conversely to limit states’ ability to regulate in certain circumstances.
The clause restrains individual states’ ability to regulate commerce within their own borders if that regulation infringes upon congressional regulation of interstate commerce.
When evaluating whether a state regulation violates the dormant commerce clause, courts often frown upon “protectionist” state policies that marginally favor in-state residents or
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