Northeast Patients Group v. United Cannabis Patients and Caregivers of Maine

United States Court of Appeals
For the First Circuit
No. 21-1719
NORTHEAST PATIENTS GROUP, d/b/a Wellness Connection of Maine;
HIGH STREET CAPITAL PARTNERS, LLC,
Plaintiffs, Appellees,
v.
UNITED CANNABIS PATIENTS AND CAREGIVERS OF MAINE,
Intervenor-Defendant, Appellant,
MAINE DEPARTMENT OF ADMINISTRATIVE AND FINANCIAL SERVICES;
KIRSTEN FIGUEROA, Commissioner of the Maine Department of
Administrative and Financial Services,
Defendants.
No. 21-1759
NORTHEAST PATIENTS GROUP, d/b/a Wellness Connection of Maine;
HIGH STREET CAPITAL PARTNERS, LLC,
Plaintiffs, Appellees,
v.
KIRSTEN FIGUEROA, Commissioner of the Maine Department of
Administrative and Financial Services,
Defendant, Appellant,
MAINE DEPARTMENT OF ADMINISTRATIVE AND FINANCIAL SERVICES;
UNITED CANNABIS PATIENTS AND CAREGIVERS OF MAINE,
Defendants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Nancy Torresen, U.S. District Judge]
Before
Barron, Chief Judge,
Lynch and Gelpí, Circuit Judges.
Matthew Warner, with whom Jonathan Mermin, Alexandra
Harriman, and Preti, Flaherty, Beliveau & Pachios, LLP were on
brief, for appellees.
James G. Monteleone, with whom Bernstein Shur was on brief,
for appellant United Cannabis Patients and Caregivers of Maine.
Christopher C. Taub, Chief Deputy Attorney General of Maine,
with whom Aaron M. Frey, Attorney General of Maine, Thomas A.
Knowlton, Deputy Attorney General of Maine, and Paul E. Suitter,
Assistant Attorney General of Maine, were on brief, for appellant
Kirsten Figueroa.
August 17, 2022
BARRON, Chief Judge. This appeal concerns whether the
Maine Medical Use of Marijuana Act, 22 M.R.S. §§ 2421-2430 (2009)
("Maine Medical Marijuana Act"), violates what is known as the
dormant Commerce Clause of the United States Constitution by
requiring "officers" and "directors" of medical marijuana
"dispensar[ies]," id. § 2428(6)(H), operating in Maine to be Maine
residents. The United States District Court for the District of
Maine held that Maine Medical Marijuana Act's residency
requirement does violate the dormant Commerce Clause,
notwithstanding that Congress enacted the Controlled Substances
Act ("CSA"), 21 U.S.C. § 801 et seq., to "eradicate the market" in
marijuana, see Gonzalez v. Raich, 545 U.S. 1, 19 n.29 (2005). The
District Court concluded that is so, because the residency
requirement is a facially protectionist state regulation of an
interstate market in medical marijuana that continues to operate
even in the face of the CSA. We affirm.
I.
Maine enacted the Maine Medical Marijuana Act in 2009 to
authorize participation in the market in medical marijuana in that
state in specified circumstances. See Maine Medical Use of
Marijuana Act, 22 M.R.S. §§ 2421-2430 (2009) (the "Medical
Marijuana Act") (permitting the "acquisition, possession,
cultivation, manufacture, use, delivery, transfer or
transportation of marijuana" relating to prescribed treatments for
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certain medical conditions). Among other things, the Maine Medical
Marijuana Act provides that a "dispensary" may sell medical
marijuana in the state, so long as certain requirements are
satisfied. Id. It then goes on to define a "dispensary" as "an
entity registered under [22 M.R.S. § 2425-A] that acquires,
possesses, cultivates, manufactures, delivers, transfers,
transports, sells, supplies or dispenses marijuana plants or
harvested marijuana or related supplies and educational materials
to qualifying patients and the caregivers of those patients." Id.
§ 2422(6).
The residency requirement that is at issue in this appeal
appears in § 2428(6)(H) of the Maine Medical Marijuana Act. It
provides that, for a "dispensary" to be authorized under state law
to sell "medical marijuana" in Maine, "all [the] officers or
directors of a dispensary must be residents of [Maine]." Id.
§ 2422(6)(H) (the "residency requirement"). The phrase "[o]fficer
or director" is then defined broadly in a separate provision of
the Maine Medical Marijuana Act to include "a director, manager,
shareholder, board member, partner, or other person holding a
management position or ownership interest in the organization."
Id. § 2422(6-B).
Northeast Patients Group is a corporation that is wholly
owned by three Maine residents and that owns and operates three of
Maine's seven licensed dispensaries as a for-profit corporation.
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High Street Capital is a Delaware corporation that is owned
exclusively by non-Maine residents and that wants to acquire
Northeast Patients Group. If the deal between the two companies
were to proceed, as both High Street Capital and Northeast Patients
Group desire, then the resulting company would not be able to
function as a dispensary under Maine law in consequence of the
Maine Medical Marijuana Act's residency requirement, because the
"officers or directors" of that new company would not be only Maine
residents.
Northeast Patients Group and High Street Capital
("plaintiffs") filed this suit under 42 U.S.C § 1983 and 28 U.S.C.
§ 2201 against the Maine Department of Administrative and
Financial Services ("the Department") and Kirsten Figueroa, the
Commissioner of the Department, on December 17, 2020, in the
District of Maine to challenge the Maine Medical Marijuana Act's
residency requirement. The complaint alleges that the residency
requirement violates the dormant Commerce Clause by permitting
only in-staters to serve as "officers or directors" of
"dispensaries."
Figueroa and the Department answered the complaint on
January 29, 2021. Shortly thereafter, United Cannabis Patients,
a nonprofit advocacy group that represents medical marijuana
businesses owned by Maine residents, moved to intervene in the
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action as a defendant under Federal Rule of Civil Procedure
24(a)(2). The District Court granted the motion on March 23, 2021.
The parties filed a stipulated record that same month,
and the plaintiffs moved for summary judgment on that record.
Figueroa and the Department cross-moved for summary judgment on
the record on April 26, 2021. United Cannabis Patients opposed
the plaintiffs' motion that same day.
The District Court ruled on the parties' motions on
August 11, 2021. The District Court granted judgment for the
Department on the ground that the Department was immune from suit
under the Eleventh Amendment to the U.S. Constitution. Ne.
Patients Grp. v. Maine Dep't of Admin. & Fin. Servs., 554 F. Supp.
3d 177, 181-82 (D. Me. 2021). The District Court held with respect
to the plaintiffs' claims against Figueroa that Maine's residency
requirement violated the dormant Commerce Clause. On that basis,
it granted the plaintiffs' motion for a permanent injunction and
enjoined Figueroa from enforcing Maine's residency requirement.
Id. at 185. It also denied the defendants' motion for judgment on
the stipulated record on the same basis. Id.Figueroa and United Cannabis Patients timely appealed.
They simultaneously moved for the District Court to stay its
injunction while the appeal was pending. On October 27, 2021, the
District Court granted the motion and stayed the injunction. This
appeal followed.
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II.
The Commerce Clause of the U.S. Constitution provides
that "Congress shall have [the] [p]ower . . . [t]o regulate
Commerce . . . among the several States." U.S. Const. Art. I,
§ 8, cl. 3. The Supreme Court of the United States has long
construed the Commerce Clause to be not only an affirmative grant
of authority to Congress to regulate interstate commerce but also
a negative, "self-executing limitation on the power of the [s]tates
to enact laws [that place] substantial burdens on [interstate]
commerce." S.-Cent. Timber Dev., Inc. v. Wunnicke, 467 U.S. 82,
87 (1984); see also Gen. Motors Corp. v. Tracy, 519 U.S. 278, 287
(1997) ("The negative or dormant implication of the Commerce Clause
prohibits state taxation or regulation that discriminates against
or unduly burdens interstate commerce and thereby 'imped[es] free
private trade in the national marketplace.'" (internal citations
omitted) (alteration in original) (quoting Reeves, Inc. v. Stake,
447 U.S. 429, 437 (1980))). Thus, the negative aspect of the
Commerce Clause in and of itself protects interstate commerce from
"the evils of 'economic isolation' and protectionism" that state
regulation otherwise could bring about. City of Philadelphia v.
New Jersey, 437 U.S. 617, 624 (1978).
The District Court concluded in this case that the
"dormant implication of the Commerce Clause" prohibits Maine's
residency requirement from being given legal effect. The
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defendants do not dispute that Maine's residency requirement, if
applied to a lawful market, would comport with the dormant Commerce
Clause (as the Clause's negative aspect is often called) only if
that requirement were "narrowly tailored to 'advanc[e] a
legitimate local purpose,'" Tenn. Wine and Spirits Retailers
Assoc. v. Thomas, 139 S. Ct. 2449, 2461 (2019) (quoting Dep't of
Revenue of Ky. v. Davis, 553 U.S. 328, 338 (2008)). The defendants
also do not dispute that, at least with respect to a lawful market,
"where simple economic protectionism is effected by state
legislation, a virtually per se rule of invalidity has been
erected." City of Philadelphia, 437 U.S. at 624. Finally, the
defendants do not dispute that they cannot show that Maine's
residency requirement, if it were applied to a lawful market, would
be narrowly tailored to serve a legitimate local purpose, because
they agree that, as applied to such a market, the requirement would
"basically [be] a protectionist measure," id. at 624, that would
both "discriminate[] against" and "unduly burden[] interstate
commerce," Gen. Motors Corp., 519 U.S. at 287.
The defendants' acceptance of these propositions should
come as no surprise, given the Maine Medical Marijuana Act's
sweeping definition of "officers" and "directors." In Tennessee
Wine and Spirits Retailers Association v. Thomas, the Supreme Court
found the state law at issue there to be "plainly based on
unalloyed protectionism," 139 S. Ct. 2449, 2474 (2019), and so
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barred by the dormant Commerce Clause, because the measure required
all the stockholders of a corporation holding a license to operate
an in-state liquor store to be state residents, id. at 2456.
Maine's measure goes ever further in discriminating against out-
of-staters, as a plain reading of the definition of "officers or
directors" in the Medical Marijuana Act would seem to sweep up
anyone with the title of "manager," no matter at what level, as
well as all stockholders and anyone with an ownership interest of
any amount. See 22 M.R.S. § 2422(6-B).
That the defendants do not dispute these points does not
mean, however, that they accept that the dormant Commerce Clause
bars the residency requirement. They argue that, notwithstanding
these points, Maine's residency requirement comports with the
dormant Commerce Clause because federal law makes participation in
the market to which the residency requirement applies illegal. It
is that contention -- and that contention alone -- that we must
address.
It is important to emphasize at the outset, however,
that, to address that contention, we need to examine the distinct
versions of it that the defendants press. As we will see, each
version rests on its own, independent premises. We thus proceed
accordingly, starting with the defendants' most sweeping version.
We then work our way through to the most case-specific -- but, as
we will explain -- still unpersuasive one. Our review, in all
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events, is de novo, see Walgreen Co. v. Rullan, 405 F.3d 50, 55
(1st Cir. 2005).
A.
The defendants' first ground for contending that the
District Court erred in ruling that the residency requirement
violates the dormant Commerce Clause rests on the uncontroversial
major premise that the dormant Commerce Clause only "denies the
[s]tates the power unjustifiably to discriminate against or burden
the interstate flow of articles of commerce." Or. Waste Sys.,
Inc. v. Dep't of Env't Quality of Or., 511 U.S. 93, 98 (1994).
This ground also appears to rest, however, on a minor premise --
namely, that it is impossible for there to be an interstate market
in any good that, under federal law, is contraband throughout the
country.
The defendants appear to be relying on this minor premise
because they contend that the CSA ensures that the residency
requirement does not run afoul of the dormant Commerce Clause
simply because that federal statute, by making marijuana
contraband, ensures that there is no interstate market in commerce
for the residency requirement to burden. But, the minor premise
is mistaken.
That is not just because it is possible for an interstate
commercial market in contraband to exist, as the persistence of
interstate black markets of various kinds all too clearly
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demonstrates. It is also because the Supreme Court has recognized
as much in connection with its review of Congress's attempt to
exercise the Commerce Clause's affirmative grant of power to stamp
out the interstate market in marijuana.
Specifically, in Gonzalez, the Supreme Court considered
whether Congress had the authority under the Commerce Clause to
"prohibit the local cultivation and use of marijuana" even when
undertaken in compliance with state law, 545 U.S. at 5. The Court
explained that Congress did possess such authority -- and thus
that the CSA constituted a proper exercise of the commerce power
insofar as that federal statute effected such a prohibition -- in
part because marijuana is a "fungible commodity for which there is
an established, albeit illegal, interstate market." Id. at 18(emphasis added).
We note, too, that nothing in the record in this case
indicates that, due to the CSA, there is no interstate market in
medical marijuana. The prohibition that Maine's Medical Marijuana
Act seeks to impose on out-of-state actors entering that very
market reflects the reality that the market continues to operate.
That prohibition even indicates that the market is so robust that,
absent the Medical Marijuana Act's residency requirement, it would
be likely to attract entrants far and wide. And, while the Medical
Marijuana Act does attempt to restrict out-of-staters from selling
medical marijuana, it affirmatively encourages out-of-staters to
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participate in the medical marijuana market as customers. See 22
M.R.S. § 2423-D (permitting a "visiting qualifying patient from
another jurisdiction that authorizes the medical use of marijuana"
to possess limited quantities of marijuana in Maine).
Congress's enactment of the Rohrabacher-Farr Amendment
in the wake of the CSA's passage further undermines the notion
that no such interstate market exists. That amendment hardly
reflects a congressional understanding that the CSA succeeded in
eradicating the interstate market in medical marijuana. See
Consolidated Appropriations Act of 2022, Pub. L. No. 117-103,
§ 531, 136 Stat. 49 (2022) (providing that "[n]one of the funds
made available under this Act to the Department of Justice may be
used, with respect to [Maine and other states], to prevent any of
them from implementing their own laws that authorize the use,
distribution, possession, or cultivation of medical marijuana").
And, we note, the current Rohrabacher-Farr Amendment is no anomaly,
as Congress has included an identical version of it in every annual
congressional appropriation to the U.S. Department of Justice
since fiscal year 2015, see United States v. Bilodeau, 24 F.4th
705, 709 (1st Cir. 2022), reflecting the fact that over time more
than half of all states have legalized the market for medical
marijuana to some extent.
We make one additional observation. The defendants
acknowledged at oral argument that Congress could enact a measure
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pursuant to the Commerce Clause to preempt the residency
requirement that the Medical Marijuana Act imposes. Thus, the
defendants do not dispute that Congress could exercise the commerce
power to countermand Maine's protectionist choice to afford only
its residents the chance to exploit the market in question by
operating a medical marijuana dispensary in that state. But, in
consequence, the defendants necessarily recognize that an
interstate commercial market in medical marijuana must exist that
the Commerce Clause can reach. Thus, the defendants themselves
appear, in the end, to be less committed to the view that there is
no interstate market in medical marijuana than their lead ground
for challenging the District Court's ruling might suggest.
B.
The defendants next contend, somewhat more modestly,
that the District Court's ruling cannot stand even if there is an
interstate market in medical marijuana that continues to operate
in the face of the CSA. Here, the defendants shift away from the
contention that there is no such market for the dormant Commerce
Clause to protect. They appear to contend instead that the
negative implication of the Commerce Clause is a nullity with
respect to the interstate market in medical marijuana simply
because Congress affirmatively exercised its Commerce Clause power
to regulate that very market. But, insofar as that is what the
defendants mean to argue, we are not persuaded. Or, at least, we
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are not, given the nature of the specific federal legislative
context in which this case arises.
To see why, it is important to keep in mind that the
question before us is not whether the CSA preempts the residency
requirement in the Medical Marijuana Act. It is whether the
residency requirement cannot stand because it transgresses the
dormant Commerce Clause due to the substantial burden that this
requirement (in light of its patently protectionist nature)
imposes on interstate commerce.
This distinction matters because preemption by a federal
statute and prohibition by the dormant Commerce Clause are distinct
rather than coterminous means by which federal law may limit state
lawmaking that substantially burdens interstate commerce. Thus,
the negative implication of the commerce power may pose an
independent bar to a state regulation of an interstate commercial
market even when Congress chooses to exercise its affirmative
commerce power with respect to that same market without also
preempting that state regulation.
Precedent accords with this same understanding. The
Supreme Court addressed whether the negative implication of the
commerce power bars a state regulation of commercial activity in
the same interstate market in which Congress has exercised its
affirmative commerce power in California v. Zook, 336 U.S. 725(1949). In doing so, the Court examined whether the federal
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statute that resulted from Congress's exercise of that power
preempted the state law at issue while also, separately,
determining whether the state law comported with the requirements
of the dormant Commerce Clause. Id. at 725.
Moreover, our own decision in United Egg Producers v.
Department of Agriculture of Puerto Rico, 77 F.3d 567 (1st Cir.
1996), accords with this understanding of the way that the
affirmative and negative aspects of the Commerce Clause relate to
one another. There, we considered whether a Puerto Rico law that
mandated that eggs sold within the Commonwealth be stamped with
the two-letter code that indicated their state of origin violated
the dormant Commerce Clause. Id. at 569. We held that it did,
even though Congress had already regulated the labeling of eggs
within the continental United States. Id. at 507. We thus did
not treat Congress's exercise of the Commerce Clause's affirmative
grant of power in the interstate market in eggs as having
inherently displaced the operation of the Commerce Clause's
negative implication on state attempts to regulate that market.
Rather, we concluded that the dormant Commerce Clause operated as
an independent means by which federal law could limit a state law
attempt to regulate the interstate commercial market that the
federal statute did not itself preempt.
To be sure, unlike the federal statute at issue in United
Egg Producers, the CSA applies uniformly throughout the United
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States. But, as we have noted, the defendants do not suggest that
the CSA preempts the provision of the Medical Marijuana Act that
is at issue. Nor could they press their appeal if they did. That
being so, this case is no different from United Egg Producers when
it comes to the question of whether the fact that Congress has
regulated an interstate market to some extent in and of itself
renders the dormant Commerce Clause inoperative as to any state
regulation of that same market.
Simply put, here, as there, the state is attempting to
regulate an interstate market in a way that no federal statute on
its own purports to prohibit. Cf. Tenn. Wine, 139 S. Ct. at 2465(noting that "[d]ormant Commerce Clause restrictions apply only
when Congress has not exercised its Commerce Clause power to
regulate the matter at issue," and citing to Leisy v. Hardin, 12
Ky. L. Rptr. 167 (1890), which discusses federal preemption of
state law (emphasis added)). And so, here, as there, the question
remains whether a separate possible federal law bar to such state
regulation -- namely, the dormant Commerce Clause -- stands in the
way.
Nonetheless, we need not -- and so, do not -- hold that
a congressional exercise of the commerce power can never, merely
by being in place, displace the dormant Commerce Clause. As we
have noted above, the CSA was not Congress's last word on the
market in marijuana. Rather, some years after Congress passed the
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CSA, Congress enacted the Rohrabacher-Farr Amendment. And, it has
continued to enact that measure annually thereafter.
This congressional action in the wake of the CSA reflects
that Congress contemplates both that an interstate market in
medical marijuana may exist that is free from federal criminal
enforcement and that, if so, this interstate market may be subject
to state regulation. Thus, this is not a case in which, if Congress
is our guide, we have reason to conclude solely based on Congress's
affirmative exercise of its commerce power with respect to an
interstate market either that there is nothing left of that market
for the dormant Commerce Clause to protect from state protectionism
or that there is no prospect of states attempting to substantially
burden that market through protectionist regulation. Accordingly,
this is not a case in which we could conclude from the fact of
congressional regulation of the relevant interstate market
alone -- and thus without further inquiry into congressional
intent in so regulating that market -- that the dormant Commerce
Clause imposes no limits on state regulation of the interstate
market, including even when such state regulation smacks of pure
protectionism.
In arguing otherwise, the defendants do invoke an out-
of-state precedent, Pic-A-State PA, Inc. v. Commonwealth of
Pennsylvania, 42 F.3d 175 (3d Cir. 1994). There, the Third Circuit
considered the validity of a state statute that prohibited the
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sale of out-of-state lottery tickets in the face of a federal
statute that barred interstate sales of lottery tickets. Id. at
179. Pic-A-State held that the state regulation was not barred by
federal law. Id. at 178-80.
The Third Circuit stated in reaching that conclusion
that where Congress "proscribe[s] certain interstate commerce,
Congress has determine[d] that . . . commerce is not in the
national interest." Id. at 179. The Third Circuit then went on
to state that, "where such a determination has been made by
Congress, it does not offend the purpose of the Commerce Clause
for states to discriminate or burden that commerce." Id.But, we do not understand the Third Circuit to have
premised its decision to uphold the state law in that case on the
mere fact that Congress had exercised its affirmative commerce
power to regulate the same interstate market that the state law
burdened. The Third Circuit rested its holding on the more fine-
grained determination that the state statute that was claimed to
violate federal law "[was] consistent with the federal criminal
proscription," id. at 180 (emphasis added), such that the state
law, regardless of its possibly protectionist nature, "did not
offend the purpose of the Commerce Clause," id. at 179. And, in
explaining why the state and federal measures at issue were
properly deemed to be "consistent," Pic-A-State emphasized that
the state law, by mirroring the federal one, "aided" Congress's
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objectives. Id. at 180. Pic-A-State, therefore, does not hold
that a congressional decision to regulate an interstate market in
and of itself pretermits an inquiry into whether a state law
violates the dormant Commerce Clause by substantially burdening
that very market. Pic-a-State holds only, like Zook, that, in
some circumstances, a federal statute may provide a basis for
concluding that a state law that otherwise might run afoul of the
dormant Commerce Clause does not.
C.
The defendants make one last stand. They contend that
the dormant Commerce Clause does not bar Maine's residency
requirement because Congress "consent[ed] to [this] otherwise
impermissible state regulation," United Egg Producers, 77 F.3d at
570, through the CSA. This version of the defendants' challenge
to the ruling below is unlike the others that we have considered
thus far, because it turns entirely on whether Congress intended
in the CSA to bless state attempts to substantially burden the
interstate market in medical marijuana.
The defendants are, of course, correct that Congress
could manifest an intent to consent to Maine's chosen means of
substantially burdening that market. The defendants also are
correct that if Congress were to manifest such an intent, then the
dormant Commerce Clause would pose no bar to the residency
requirement. It is well established that "Congress may 'redefine
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the distribution of power over interstate commerce'" by consenting
to state laws that would otherwise violate the dormant Commerce
Clause. S.-Cent. Timber, 467 U.S. at 87–88 (quoting S. Pac. Co. v.
Arizona, 325 U.S. 761, 769 (1945)). As we will explain, however,
we cannot conclude that Congress did manifest such an intent
through the CSA.
1.
Ordinarily, Congress must "expressly state" an intent to
obviate the dormant Commerce Clause's limitation on protectionist
state regulation. Sporhase v. Nebraska, ex rel. Douglas, 458 U.S.
941, 960 (1982) (quoting New England Power Co. v. New Hampshire,
455 U.S. 331, 343 (1982)); Prudential Ins. Co. v. Benjamin, 328
U.S. 408, 427 (1946) (same). The usual requirement that Congress
must be "unmistakably clear," S.-Cent. Timber, 467 U.S. at 91,
about its "intent and policy to sustain state legislation from
attack under the Commerce Clause," Sporhase, 458 U.S. at 960(quoting New England Power, 455 U.S. at 343 (internal quotation
marks omitted)), "is mandated by the policies underlying dormant
Commerce Clause doctrine." S.-Cent. Timber, 467 U.S. at 91-92.
The dissent points out that none of the cases that apply
this clear statement requirement concern a state measure that had
been imposed on an interstate commercial market that Congress had
sought to snuff out. The dissent goes on to contend that, because
Congress has sought to criminalize the market at issue in this
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case through the CSA, there is no reason to apply the clear
statement requirement here. See Dissent at 38-39.
To support this conclusion, the dissent stresses that
the policy underlying the dormant Commerce Clause is to preserve
a "national market for competition undisturbed by preferential
advantages conferred by a State upon its residents or resident
competitors." Gen. Motors, 519 U.S. at 299. It asserts as well
that, when such a national market for competition is maintained,
"every consumer may look to the free competition from every
producing area in the Nation to protect him from exploitation by
any." Id. at 299-300 (quoting H.P. Hood & Sons, Inc. v. Du Mond,
336 U.S. 525, 539 (1949)). See Dissent at 40. The dissent then
contends that there is no reason to require Congress to make a
clear statement blessing state protectionism when Congress does
not want any consumers to be participating in the relevant market.
Indeed, the dissent suggests that it would be anomalous to expect
Congress to articulate such mixed messages clearly. See Dissent
at 41.
But, we are not as confident that the constitutionally
rooted rule of construction that ordinarily applies is
categorically inapplicable when Congress seeks to eradicate a
national market through a federal criminal statute (even assuming
that was Congress's intent in enacting the CSA and that, the
Rohrabacher-Farr Amendment notwithstanding, Congress continues to
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have that intent). Indeed, in South-Central Timber Development,
Inc. v. Wunnicke, 467 U.S. 82 (1984), the Supreme Court described
at some length the logic that underlies the clear statement
requirement, and it is not evident to us that this logic supports
the view that there is no such requirement whenever Congress has
acted to make a certain kind of interstate commercial activity
unlawful.
The Court explained in South-Central Timber that the
democratic process at the state level does not in and of itself
function as an effective restraint against protectionist state
laws because the burdens that such laws impose will fall on actors
who are unrepresented in state legislatures. Id. at 92; see also
S.C. State Highway Dep't. v. Barnwell Bros., Inc., 303 U.S. 177,
185 n.2 (1938) ("[W]hen the regulation is of such a character that
its burden falls principally upon those without the state,
legislative action is not likely to be subjected to those political
restraints which are normally exerted on legislation where it
affects adversely some interests within the state."). The Court
further observed that, by contrast, "when Congress acts, all
segments of the country are represented, and there is significantly
less danger that one State will be in a position to exploit
others." S.-Cent. Timber, 467 U.S. at 92. And, the Court noted,
when a state is in such an advantageous position relative to other
states and we can be confident that Congress has authorized that
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state to capitalize on the edge that it holds, we at least know
that "the decision to allow [that state to so capitalize] is a
collective one." Id. Thus, the Court explained, "[a] rule
requiring a clear expression of approval by Congress ensures that
there is, in fact, such a collective decision and reduces
significantly the risk that unrepresented interests will be
adversely affected." Id.To be sure, South-Central Timber is itself a case in
which the interstate market at issue was a lawful one to enter.
And, we do not dispute that the potential for protectionist state
regulation to stoke antagonism among the states is likely to be
greatest when the market at issue is a lawful one. The incentives
for states to let their rivalries get the best of them are clear
in that circumstance, given the reasons to think that a lawful
market is inherently ripe to be exploited.
But, we are not as confident as the dissent that
interstate rivalry in the commercial realm poses no risk to our
national system of government whenever the commercial market at
issue is one that federal law makes illegal. Indeed, the issue of
whether Congress has chosen to bless a state's effort to protect
such a market for its own residents will only arise when a state
does have an incentive to exploit it, as that issue presents itself
only when a state seeks to regulate an illegal market through
protectionist means. There thus appear to us to be reasons to be
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concerned that states sometimes will act on those incentives to
the detriment of the national system of government even in a market
of that illegal kind.
To be sure, we may expect that, with respect to markets
in which Congress makes participation a crime, states will not
take the unusual steps that many states have taken with respect to
medical marijuana in seeking to facilitate participation in it.
And, of course, if states take no such steps, then we will have no
occasion to inquire into whether Congress has blessed state
protectionism, clearly or otherwise. But, when states do take
such steps, and in taking them enact protectionist measures, we
have no choice but to decide whether to so inquire and, if an
inquiry is required, to decide how demanding that inquiry must be.
In answering those questions, we do not see how we may
simply ignore the suggestion from history that we have some
obligation to be attentive to the dangers that state protectionism
poses to the federal system of government that the Constitution
establishes. The destructive consequences of allowing states to
exercise an unfettered power to discriminate against each other's
industry have been of great concern since the Founding. Indeed,
"[r]emoving state trade barriers was a principal reason for the
adoption of the Constitution," Tenn. Wine, 139 S. Ct. at 2460, and
not solely because their removal would benefit consumers. As
Alexander Hamilton cautioned in Federalist Paper No. 7:
- 24 -
The competitions of commerce would be another
fruitful source of contention. The States
less favorably circumstanced would be desirous
of escaping from the disadvantages of local
situation, and of sharing in the advantages of
their more fortunate neighbors. Each State,
or separate confederacy, would pursue a system
of commercial policy peculiar to itself. This
would occasion distinctions, preferences, and
exclusions, which would beget
discontent. . . . The infractions of these
regulations, on one side, the efforts to
prevent and repel them, on the other, would
naturally lead to outrages, and these to
reprisals and wars.
We are thus reluctant, given such Founding-era worries,
to construe the negative aspect of the dormant Commerce Clause in
a way that would essentially require us to ignore the potential
for a trade war to be destructive whenever its genesis could be
traced to a single state's effort to attain predominance in a
market that federal law deems unlawful. The potential for any
trade war -- including one started in that way -- to escalate and
have knock-on effects would seem rather strongly to counsel against
our doing so.
Accordingly, we are skeptical that the precedents in
this area may be read to show that, whenever Congress makes
participation in an interstate market unlawful, Congress need not
be as clear in blessing state protectionism as we usually demand
that it must be. Certainly, no case so holds.
Our skepticism in this regard, however, is especially
great here. As we have emphasized, Congress, through the
- 25 -
Rohrabacher-Farr Amendment, has acknowledged the existence of a
market in medical marijuana. It has also acknowledged, through
that same measure, that this market may continue to exist in some
circumstances free from federal criminal enforcement and thus
subject only to state regulation. See Bilodeau, 24 F.4th at 709.
And, of course, it has done so in the wake of the unusual efforts
by many states (Maine included) to construct a legal framework for
lawful participation -- as a matter of state law -- in that very
same market.
Thus, whatever the circumstances may be with respect to
other goods that Congress has deemed contraband, this is not a
case in which Congress may be understood to have criminalized a
national market with no expectation that an interstate market would
continue to operate. Quite the opposite. Congress has taken
affirmative steps to thwart efforts by federal law enforcement to
shut down that very market, through the annual enactment of the
Rohrabacher-Farr Amendment. And it has taken those steps,
presumably, with an awareness of the beneficial consequences that
those steps will have for consumers who seek to obtain medical
marijuana.
For that reason, whatever assumptions may be warranted
in other contexts, we have trouble seeing why we must assume here
that the specter of states competing for dominance in this market
through protectionist means is so remote that we need not demand
- 26 -
that Congress make a point of expressly consenting to their doing
so. Congress itself has given us reason to attend to that very
specter by so plainly contemplating state regulation of this
market.
How, then, would the defendants' claim of congressional
consent fare here if the clear statement requirement were to
obtain? Not well, we think.
Nothing on the face of the CSA purports to bless
interstate discrimination in the market for medical marijuana.
The CSA in that respect stands in stark contrast to notable
instances of Congress blessing such interstate discrimination.
See, e.g., Prudential Ins. Co. v. Benjamin, 328 U.S. 408 (1946)
(finding that Congress's purpose in enacting the McCarran Act "was
broadly to give support to the existing and future state systems
for regulating and taxing the business of insurance . . . by
removing obstructions which might be thought to flow from its own
power, whether dormant or exercised, except as otherwise expressly
provided in the Act"). The same may be said of the Rohrabacher-
Farr Amendment.
Perhaps for these reasons, neither the dissent nor the
defendants attempt to argue that Congress's expression of consent
to this kind of rank protectionism is unmistakably clear. They
offer only reasons for us not to require that Congress express its
intent to give such consent with that kind of clarity.
- 27 -
All that said, we need not -- and so, do not -- go so
far as to hold that the same clear statement requirement that
obtains when a market is lawful necessarily obtains even when a
market is not. We choose to take what seems to us a more prudent
course, by assuming that the dissent is right that this clear
statement requirement does not apply here. For, as we will next
explain, even if there is reason to excuse Congress for not
attending to the possibility that states might seek to protect
their ability to exploit a market in which participation is a
federal crime, we still cannot conclude that Congress has consented
to the kind of state protectionism in which Maine has engaged.
2.
To conclude that Congress has consented to such
protectionism, we would have to do more than abandon the ordinary
rule that Congress does not mean to consent to such measures unless
it does so in unmistakably clear terms. We would have to adopt
the presumption that Congress does mean to consent to such measures
whenever it makes participation in an interstate market a crime.
And that is because, absent the application of such a pro-
protectionism presumption, we see nothing in this record that could
support the conclusion that Congress did mean to bless such
protectionist measures here.
To that point, it can hardly be said that a state effort
to protect a market in medical marijuana from out-of-state
- 28 -
competition necessarily advances Congress's evident goal in the
CSA of preventing entry into that market. Such protectionism does,
of course, stop out-of-staters from entering the market. But, it
does so only by simultaneously insulating in-state actors who do
choose to enter that market from competition. It thus threatens,
in the way that protectionist measures necessarily do, to encourage
precisely what the CSA seeks to stop -- trade by in-staters in the
relevant market. Indeed, if that were not Maine's aim in imposing
the residency requirement, then why would Maine not have simply
prohibited dispensaries altogether, rather than protected those
run by Mainers from outside competition? For these reasons, we
conclude that, while Maine's residency requirement does limit some
actors from trading in medical marijuana, it does so in a way that,
due to its protectionist nature, in no sense "aid[s]" the policy
expressed by Congress in the CSA, Pic-A-State, 42 F.3d at 180.
Moreover, Congress took the time in the Rohrabacher-Farr
Amendment to address the extent to which, the CSA notwithstanding,
the market in medical marijuana may be protected from federal
prosecutorial action. But, the defendants do not suggest that, in
doing so, Congress said anything that would indicate that it
intends to bless the kind of protectionist regulation of that
market by a state that the dormant Commerce Clause would bar in a
lawful market.
- 29 -
The defendants' failure to do so is understandable. The
Rohrabacher-Farr Amendment does not in fact repeal the CSA as to
medical marijuana. It is thus hard to discern from the
Rohrabacher-Farr Amendment a congressional intent to bless a state
regulation of the market that might further participation in it,
such as a protectionist state law like the one at issue here might.
Yet, at the same time, the Rohrabacher-Farr Amendment does plainly
reflect an effort by Congress to free the market in medical
marijuana from being subject to the full degree of federal criminal
enforcement to which that market otherwise would be subject. And
yet, the Rohrabacher-Farr Amendment does so without in any way
indicating that Congress wishes for that interstate commercial
market to be the unusual one that states may substantially burden
through protectionist measures.
So, to the extent that the Rohrabacher-Farr Amendment
bears on the inquiry into whether Congress intended to bless such
protectionist state regulation, that federal measure at most adds
to our reasons for concluding that Congress did not. And that is
because that federal measure reflects Congress's awareness of
there being a market in medical marijuana but contains not a word
that would suggest, even by implication, that states may
substantially burden it.1
1In this regard, we note that unlike the prohibition in
Ne. Bancorp, Inc. v. Bd. of Governors of Fed. Rsrv. Sys., 472 U.S.
- 30 -
To make the case that, even if Congress's affirmative
regulation of the marijuana market does not in and of itself
displace the dormant Commerce Clause, Congress nonetheless has
consented to the protectionism in which Maine has engaged, the
defendants do appear to rely on Pic-A-State once again. But, that
precedent, once again, offers the defendants no support.
The Third Circuit observed in upholding the state law
measure in that case that the Supreme Court has explained that
federal preemption and dormant Commerce Clause doctrines are
"separate particularizations of [the] principle" that Congress --
not the states -- holds the power to "redefine" areas of national
policy. Pic-A-State, 42 F.3d at 180 (quoting Zook, 336 U.S. at
733). Moreover, the federal statute in that case made it a crime
to participate in an interstate lottery market and the state law
at issue mirrored that same federal criminal prohibition. Thus,
the Third Circuit had no trouble concluding that the state law did
not run afoul of "national policy," id. at 179, because that state
159, 163 (1985) (describing the Douglas Amendment, which
"prohibits the Board from approving an application of a bank
holding company or bank located in one State to acquire a bank
located in another State, or substantially all of its assets,
unless the acquisition 'is specifically authorized by the statute
laws of the State in which such bank is located, by language to
that effect and not merely by implication'" (quoting 12 U.S.C.
§ 1842(d) (1985))), which makes explicit reference to interstate
protectionism, the CSA makes no much explicit reference.
- 31 -
law had the effect of "aiding" the same federal proscription, id.
at 180.
Here, by contrast, the federal criminal prohibition that
the CSA imposes is, as we have explained, not "aided" in any
evident way by the ban on out-of-state participation in the market
in medical marijuana in Maine. To the contrary, that state law
ban encourages participation in that market (at least by in-
staters) that the CSA gives every indication that Congress seeks
to prevent.
True, as we have noted, the Rohrabacher-Farr Amendment
does limit enforcement of the national ban on participation in
that market that the CSA imposes. But, as we have pointed out,
the defendants understandably do not suggest that Congress blessed
Maine's protectionism through the Rohrabacher-Farr Amendment.
Thus, we see no basis for concluding in this case that
Congress intended to permit state discrimination against out-of-
staters in the interstate market in medical marijuana, unless there
is a presumption that Congress means to consent to state
protectionism whenever it exercises its commerce power to make
participation in an interstate market unlawful. But, we know of
no precedent that would support the application of such a pro-
protectionism presumption.
Nor can we think of any logic, set forth in the available
precedent, that would lead us to apply that presumption. Indeed,
- 32 -
applying that presumption would seem only to invite state attempts
to exploit markets that Congress has made illegal, by freeing
states to regulate those markets in ways that would facilitate
only their residents' participation in them. Thus, as neither the
defendants nor the dissent have given us any reason to adopt the
presumption, we reject the defendants' third and final ground for
concluding that the Maine residency requirement does not violate
the dormant Commerce Clause, just as we have rejected each of the
other two that the defendants have put forward.
III.
We close by addressing what appears to us to be the
dissent's two additional grounds for reversing the District Court,
though neither appears to be a ground on which the defendants
themselves rely. We are not persuaded by either one.
The first of these grounds is that a court has no warrant
to "extend" the reach of the Commerce Clause's negative implication
to a market in goods that is "illegal." As the dissent puts it,
"[n]othing in our precedents asserts a 'fundamental'
constitutional interest in 'preserving a national market for
competition in a market which Congress has lawfully proscribed."
(quoting Gen. Motors Corp., 519 U.S. at 299). See Dissent at 42.
But, of course, what is merely an application of the
dormant Commerce Clause to a new circumstance and what is an
extension of the dormant Commerce Clause beyond its permissible
- 33 -
bounds is the issue at hand. Indeed, it would be just as well to
say that we have no warrant to limit the scope of the dormant
Commerce Clause in these unique circumstances just because the CSA
is on the books.
Why, then, would it be improper for us to apply the
dormant Commerce Clause here? There is an interstate market, and
a state is trying to protect its advantageous position with respect
to it. Moreover, Congress anticipated both that there would be
such a market, despite having passed the CSA, and that states would
seek to regulate it. So, given the long-held understanding that
the dormant Commerce Clause has a negative aspect, there would
seem to be no basis for our declining to enforce the dormant
Commerce Clause unless there were a reason for us to think that
Congress had exercised its commerce power in a way that would
suggest that we should not do so. Yet, as we have explained, we
have no reason to think that Congress has.
In so concluding, we again find support in the Supreme
Court's decision in Zook. There, the Court considered a challenge
to a state law that criminalized "sale or arrangement of any
transportation over public highways of [that] State if the
transporting carrier" did not have the proper permit could stand,
notwithstanding a federal law that was "substantially the same."
Id. at 726. The Court ultimately concluded that the state law
aided the enforcement of the federal criminal prohibition that
- 34 -
Congress had enacted, and, in doing so, it appeared to conclude
that Congress had blessed the protectionist policy, such that it
was neither preempted nor violative of the dormant Commerce Clause.
Id. at 731. In doing so, the Court in no way suggested that
because a federal statute makes the relevant interstate commercial
activity illegal, states are free to regulate that activity in
ways that the dormant Commerce Clause otherwise would bar without
there being any indication that Congress had consented to states
doing so. The Court held only that, notwithstanding the dormant
Commerce Clause, states could so regulate the interstate
commercial activity that Congress had made illegal when Congress
had not preempted state efforts to do so and those state efforts
mirrored the precise criminal prohibition that Congress had
enacted. Id.; see also Pic-A-State, 42 F.3d at 179-80 (considering
whether a state statute that criminalized the participation in an
interstate market was "consistent with the federal criminal
proscription" as part of its analysis as to whether that state law
violated the dormant Commerce Clause).
For these reasons, we cannot see how we may conclude
that, whenever Congress criminalizes activity in an interstate
commercial market, Congress need not give any indication of its
intent to permit a state to do what it otherwise may not --
substantially burden interstate commerce without adequate
- 35 -
justification. Accordingly, we cannot agree with the dissent's
contrary view.
The remaining ground posited by the dissent seems to be
rooted less in a claim about the reach of the dormant Commerce
Clause itself than in a claim about the scope of a court's
equitable power to enforce it. The dissent asserts that the
plaintiffs "should not be able to receive a constitutional remedy
in federal court to protect the sale and distribution of a
controlled substance which remains illegal under federal law."
See Dissent at 42-43; see also Original Investments, LLC v.
Oklahoma, 542 F. Supp. 3d 1230, 1233 (W.D. Okla. 2021).
But, we do not see how it would be equitable for us to
leave a dormant Commerce Clause violation unremedied if such a
violation has occurred. To the extent that the dissent suggests
that we must not provide a remedy for the sake of ensuring that we
do not inadvertently facilitate participation in an illegal
market, we do not see why. The surest way to prevent courts from
inadvertently preventing state regulation of interstate commercial
markets that Congress meant to permit is to look for indications
that Congress did intend to permit them. And, insofar as the
dissent means to suggest that such an indication can be found in
the mere fact that Congress has made it illegal to participate in
the market that a state has chosen to regulate, then it seems to
us that the dissent is relying on the ground set forth above. But,
- 36 -
as we there explained, we are not persuaded that the dormant
Commerce Clause can have no effect in a market in which Congress
has made participation criminal, including even one in which, as
is the case here, Congress has barred enforcement of the federal
criminal prohibition in certain respects.
IV.
The District Court's grant of judgment on the stipulated
record to the plaintiffs and denial of its grant of judgment to
the defendants is affirmed.
-Dissenting Opinion Follows-
- 37 -
GELPÍ, Circuit Judge, dissenting. I respectfully
dissent from the affirmation of the district court's opinion. I
agree that Maine's residency requirement, that "[a]ll officers or
directors of a dispensary must be residents of this State" set
forth at 22 M.R.S. § 2428(6)(H), incontestably constitutes
protectionist legislation. Indeed, at oral argument, counsel for
Defendant-Appellant Kristen Figueroa conceded as much. Moreover,
Figueroa does not assert that the measure could meet the strict
scrutiny standard to which protectionist legislation is ordinarily
subject. Indeed, the Supreme Court and this court have routinely
invalidated similar protectionist legislation in markets ranging
from liquor store licensing to egg products. See, e.g., Tenn.
Wine & Spirits Retailers Ass'n v. Thomas, 139 S. Ct. 2449, 2457
(2019); United Egg Producers v. Dep't of Agric., 77 F.3d 567, 571-
72 (1st Cir. 1996). Following this caselaw, the majority affirms
the district court by concluding that Maine's measure fails under
the dormant Commerce Clause, because defendants have not
satisfactorily demonstrated Congress's "unmistakably clear intent
to allow otherwise discriminatory regulations," United Egg
Producers, 77 F.3d at 570 (citing Wyoming v. Oklahoma, 502 U.S.
437, 458 (1992)), or demonstrated that Congress has otherwise
consented to such protectionist legislation. In the ordinary
course, in an ordinary market, I would agree that such a measure
- 38 -
is unconstitutional under well-trodden dormant Commerce Clause
principles and caselaw.
But the national market for marijuana is unlike the
markets for liquor licenses or egg products in one crucial regard:
it is illegal. Congress in 1971 enacted the Controlled Substance
Act (CSA) pursuant to its Commerce Clause powers, designating
marijuana a Schedule I controlled substance. See 21 U.S.C. § 841;
id. § 812(c)(Schedule I)(c)(10); Gonzales v. Raich, 545 U.S. 1, 22
(2005). Under the CSA, it is a crime "to manufacture, distribute,
or dispense, or possess with intent to manufacture, distribute, or
dispense, a controlled substance." 21 U.S.C. § 841(a)(1). It is
here that I part ways with the majority, because I disagree that
the test we have developed for the mine-run of dormant Commerce
Clause cases apply automatically or with equal vigor when the
market in question is illegal as a matter of federal law. As such,
I do not believe that the United Egg Producers test -- which, prior
to today, we have only ever applied in cases involving legal
markets -- extends to national markets that Congress has expressly
made illegal. Instead, I start from the premise that we should
vindicate the principles that animate the dormant Commerce Clause
-- and I conclude that the same constitutional precepts that led
us to articulate the United Egg Producers test counsel against its
application here.
- 39 -
As the Supreme Court has stated, "the dormant Commerce
Clause's fundamental objective [is to] preserve[] a national
market for competition undisturbed by preferential advantages
conferred by a State upon its residents or resident competitors."
Gen. Motors Corp. v. Tracy, 519 U.S. 278, 299 (1997). It follows
that, in the market for legal goods and services in the stream of
interstate commerce, the dormant Commerce Clause renders
unconstitutional a state's preferential treatment of its
residents, absent Congress's "unmistakably clear intent to allow
otherwise discriminatory regulations." United Egg Producers, 77
F.3d at 570. This is because the law presumes the public interest
is best served by maintaining an unencumbered "national market for
competition" in legal goods and services. Gen. Motors Corp., 519
U.S. at 299. However, it makes little sense to retain this
presumption when Congress has explicitly acted to make the market
in question illegal, because the premise that the dormant Commerce
Clause enshrines, and which undergirds United Egg Producers, does
not hold. The Commerce Clause does not recognize an interest in
promoting a competitive market in illegal goods or services or
forestalling hypothetical interstate rivalries in the same.2
2 The majority highlights the Supreme Court's explanation in
South-Central Timber Development, Inc. v. Wunnicke, 467 U.S. 82(1984) that -- in the context of the lawful timber market -- "the
risk that unrepresented interests will be adversely affected by
restraints on commerce" informs the "policies underlying dormant
Commerce Clause doctrine." Id. at 92. But the Supreme Court has
- 40 -
In the instant case, therefore, the "fundamental
objective" of the dormant Commerce Clause to preserve a competitive
national market is inapplicable, because Congress has already
outlawed the national market for marijuana. Gen. Motors Corp.,
519 U.S. at 299. While the majority assumes that the national
marijuana market is sufficiently akin to legal interstate markets
for our ordinary dormant Commerce Clause jurisprudence to apply,
I believe that illegal markets are constitutionally different in
kind, and thus disagree that the Commerce Clause protects the
free-flowing operation of national markets that Congress has
already made illegal through its Commerce Clause power. Nor should
we expect Congress to speak out of both sides of its mouth on this
issue, simultaneously illegalizing marijuana while affirmatively
granting states the power to "burden interstate commerce 'in a
matter which would otherwise not be permissible.'" New England
Power Co. v. New Hampshire, 455 U.S. 331, 341 (1982) (quoting S.
Pac. Co. v. Arizona, 325 U.S. 761, 769 (1945)). Yet the majority
reads United Egg Producers and other precedent to compel this
posture. My reluctance to join my colleagues in extending
certainly never indicated that it is a constitutionally cognizable
harm under the dormant Commerce Clause to "adversely affect[]"
out-of-state actors if their "unrepresented interest[]" consists
solely in peddling illicit goods. Id. Further, as the majority
itself concedes, the fear that protectionist legislation might
instigate injurious interstate rivalries is significantly
attenuated in the unusual context of illegal markets.
- 41 -
constitutional solicitude to protecting an illegal market is
heightened if one were to imagine extending the same logic to
relieve burdens on the illicit trade in other Schedule I controlled
substances, such as heroin, fentanyl, or cocaine, or indeed most
any other black market in goods or services which Congress has
determined is harmful to the public interest. Nothing in our
precedents asserts a "fundamental" constitutional interest in
"preserving a national market for competition" in a market which
Congress has lawfully proscribed. Gen. Motors Corp., 519 U.S. at
299.
To be sure, if Congress were to legalize marijuana, which
it has not done via the passage of the Rohrabacher-Farr Amendment,
I would join the majority in finding this legislation
unconstitutional under the dormant Commerce Clause. But the
dormant Commerce Clause does not provide the right to engage on
equal footing in a federally illegal market, regardless of the
evolving political and legal landscape of marijuana at the state
level and Congress's implicit recognition that the CSA has not
eradicated the marijuana market. See Original Investments, LLC v.
Oklahoma, 542 F. Supp. 3d 1230, 1233 (W.D. Okla. 2021); see also
Fourth Corner Credit Union v. Fed. Rsrv. Bank of Kansas City, 861
F.3d 1052, 1054-55 (10th Cir. 2017).3 As such, appellees should
The court's analysis in Original Investments, LLC that
3
courts should not use their equitable powers to facilitate conduct
- 42 -
not be able to receive a constitutional remedy in federal court to
protect the sale and distribution of a controlled substance which
remains illegal under federal law. I respectfully
DISSENT.
that is illegal under federal law finds support in case law from
our sister circuits. See Fourth Corner Credit Union, 861 F.3d at
1054-55; Cartlidge v. Rainey, 168 F.2d 841, 845 (5th Cir. 1948);
see also Finch v. Treto, No. 22C1508, 2022 WL 2073572, at *13-15
(N.D. Ill. June 9, 2022) (acknowledging that most courts
considering this issue "have not substantively addressed whether
federal courts can award equitable relief related to state-
sanctioned cannabis businesses").
- 43 -