Residency requirement is unconstitutional

First Circuit calls Maine’s residency requirement unconstitutional

The First Circuit of Appeals ruled on Wednesday that Maine’s law requiring medical marijuana businesses to be owned by Maine residents is a violation of the Constitution’s dormant commerce clause. Chief Judge Barron concurred with Judge Lynch and authored the majority opinion. The First Circuit called the residency requirement a “facially protectionist” regulation that only gives residents the chance to exploit Maine’s medical cannabis market. The dormant commerce clause refers to the limits in place that prevent states from enacting laws that place substantial burdens on interstate commerce.

Maine officials tried to argue that Maine’s residency requirement did not violate the dormant Commerce Clause because of the Controlled Substances Act. Congress has made marijuana a federal crime, they argued, which prevents any legal interstate market in commerce for a residency requirement to conflict with. In his dissent, Judge Gelpi explained that while the residency requirement “incontestably constitutes protectionist legislation” he believes the dormant Commerce Clause does not provide the right to engage on equal footing in a market that is illegal federally.

Maine law originally included a residency requirement for both adult and medical marijuana businesses. In 2020, shortly after the residency requirement was first challenged in court, Maine’s Office of Marijuana Policy announced that they would not enforce the residency requirement in the adult-use cannabis industry on the advice of counsel. However, the state continued to enforce its residency rules in the medical marijuana industry which ultimately resulted in this decision.

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Read the ruling from the First Circuit court of appeals: