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.
`
`
`
`
`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
`
`- 3 -
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`
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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.
`
`- 4 -
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`
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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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`- 5 -
`
`
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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.
`
`- 6 -
`
`
`
`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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`- 7 -
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`
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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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`- 8 -
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`
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`barred by the dormant Commerce Clause, because the measure required
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`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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`- 9 -
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`
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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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`- 10 -
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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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`- 11 -
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`
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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
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`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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`- 12 -
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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
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`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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`- 13 -
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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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`- 14 -
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`
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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
`
`- 15 -
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`
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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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`- 16 -
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`
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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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`- 17 -
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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
`
`- 18 -
`
`
`
`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
`
`- 19 -
`
`
`
`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
`
`- 20 -
`
`
`
`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,
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`"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
`
`- 21 -
`
`
`
`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
`
`- 22 -
`
`
`
`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.
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`But, we are not as confident as the dissent that
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`interstate rivalry in the commercial realm poses no risk to our
`
`national system of government whenever the commercial market at
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`issue is one that federal law makes illegal.
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