Case: 21-1759 Document: 00117846949 Page: 1 Date Filed: 02/28/2022 Entry ID: 6479539
`
`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,
`Defendant – Appellant,
`
`MAINE DEPARTMENT OF ADMINISTRATIVE AND FINANCIAL
`SERVICES; KIRSTEN FIGUEROA, in her official capacity as Commissioner of
`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, in her official capacity as Commissioner of Maine
`Department of Administrative and Financial Services,
`Defendant – Appellant,
`
`MAINE DEPARTMENT OF ADMINISTRATIVE AND FINANCIAL
`SERVICES; UNITED CANNABIS PATIENTS AND CAREGIVERS OF
`MAINE,
`Defendants.
`________________
`
`On appeal from the United States District Court for the District of Maine
`(District of Maine Case No. 1:20-cv-00468-NT)
`
`REPLY OF DEFENDANT-APPELLANT KIRSTEN FIGUEROA
`
`

`

`Case: 21-1759 Document: 00117846949 Page: 2 Date Filed: 02/28/2022 Entry ID: 6479539
`
` AARON M. FREY
`Attorney General
`
`THOMAS A. KNOWLTON
`Deputy Attorney General
`
`CHRISTOPHER C. TAUB
`Chief Deputy Attorney General
`
`PAUL E. SUITTER
`Assistant Attorney General
`
`Office of the Maine Attorney General
`6 State House Station
`Augusta, Maine 04333-0006
`(207)-626-8800
`Attorneys for Defendant-Appellant Kirsten Figueroa
`
`
`
`

`

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`
`TABLE OF CONTENTS
`
`Table of Authorities ........................................................................................ ii
`
`Introduction ..................................................................................................... 1
`
`Argument......................................................................................................... 1
`
`I.
`
`II.
`
`Marijuana Is Not Alcohol ..................................................................... 1
`
`The Dormant Commerce Clause Does Not Apply To The
`Interstate Market for Medical Marijuana ............................................. 2
`
`A. Congress has shuttered all legal medical
`marijuana markets ........................................................................... 4
`
`B. Maine’s legalization of medical marijuana does not trigger
`application of the dormant Commerce Clause ................................ 9
`
`C. NPG miscomprehends the rationale of the case law
`cited by the Commissioner ............................................................ 10
`
`III. Congress has affirmatively authorized Maine to enact a
`residency requirement in the market for medical marijuana
`through the passage of the Controlled Substances Act ...................... 12
`
`Conclusion .................................................................................................... 15
`
`Certificate of Compliance ............................................................................. 17
`
`Certificate of Service .................................................................................... 18
`
`i
`
`

`

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`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`Cases
`
`C&A Carbone, Inc. v. Town of Clarkstown, N.Y.,
`511 U.S. 383 (1994) ............................................................................................. 12
`
`Cent Timber Dev., Inc. Wunnicke,
`467 U.S. 82 (1984) ............................................................................................... 13
`
`City of Philadelphia v. New Jersey,
`437 U.S. 617 (1978) ............................................................................................... 9
`
`Exxon Corp. v. Governor of Md.,
`437 U.S. 117 (1978) ......................................................................................... 8, 12
`
`General Motors Corporation v. Tracy,
`519 U.S. 278 (1997) ....................................................................................... 10, 11
`
`Gonzalez v. Raich,
`545 U.S. 1 (2005) ................................................................................................... 8
`
`N.Y. State Dairy Foods, Inc. v. Ne. Dairy Compact Comm’n,
`198 F.3d 1 (1st Cir. 1999) .................................................................................... 13
`
`Ne. Patients Group v. United Cannabis Patients and Caregivers of
`Me., No. 1:20-cv-00468-NT ................................................................................ 14
`
`New England Power Co. v. New Hampshire,
`455 U.S. 331 (1982) ............................................................................................. 14
`
`Northeast Bancorp, Inc. v. Board of Governors of the Federal Reserve
`System, 472 U.S. 159 (1985) .......................................................................... 13, 14
`
`NPG, LLC v. City of Portland, Maine,
`2020 WL 4741913 (D. Me. Aug. 14, 2020) ......................................................... 14
`
`Predka v. Iowa,
`186 F.3d 1082 (1999) ........................................................................................... 12
`
`ii
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`

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`Tennessee Wine & Spirits Retailers Association v. Thomas,
`139 S. Ct. 2449 (2019) ................................................................................. 1, 2, 12
`
`Federal Statutes and Constitutional Provisions
`
`21 U.S.C. §§ 801-904................................................................................................ 3
`
`21 U.S.C. § 812 (b) ................................................................................................... 4
`
`21 U.S.C. § 812 (c) ................................................................................................... 4
`
`21 U.S.C. §§ 841-865................................................................................................ 8
`
`U.S. Const. amend. XVIII ......................................................................................... 2
`
`U.S. Const. amend. XXI ........................................................................................... 2
`
`Federal Executive Agency Authorities
`
`BSA Expectations Regarding Marijuana-Related Businesses, FIN-
`2014-G001, Financial Crimes Enforcement Network, U.S. Treasury
`Department (Feb. 14, 2014) ............................................................................... 5, 6
`
`Memorandum for All United States Attorneys: Guidance Regarding
`Federal Marijuana Enforcement, Office of the Deputy Attorney
`General (Aug. 29, 2013)..................................................................................... 6, 7
`
`Other Authorities
`
`Boston Man Sentenced for Marijuana and Tax Offenses, U.S. Attorney’s
`Office District of Massachusetts (Jan. 7, 2022), https://www.justice.gov/
`usao-ma/pr/boston-man-sentenced-marijuana-and-tax-offenses ........................... 3
`
`Charlie Eichacker, Feds Charge 13 in Alleged Maine Marijuana
`Conspiracy, Including Cops, Prosecutor, and Selectman, Maine
`Public, (Oct. 28, 2021, 6:26 PM) ........................................................................... 2
`
`iii
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`

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`Drug Trafficking Gang Member Sentenced to 30 Years in Prison,
`U.S. Attorney’s Office District of Puerto Rico (Apr. 8, 2021),
`https://www.justice.gov/usao-pr/pr/drug-trafficking-gang-member-
`sentenced-30-years-prison...................................................................................... 3
`
`Former Operator of Waterville Medical Marijuana Business Pleads
`Guilty to Federal Drug and Firearms Offenses, U.S. Attorney’s Office
`District of Maine (Jan. 5, 2021), https://www.justice.gov/usao-me/pr/
`former-operator-waterville-medical-marijuana-business-pleads-guilty-
`federal-drug-and ..................................................................................................... 3
`
`New Jersey Man Pleads Guilty to Drug Trafficking, U.S. Attorney’s
`Office District of New Hampshire (Sept. 5, 2019), https://www.justice.gov/
`usao-nh/pr/new-jersey-man-pleads-guilty-drug-trafficking .................................. 3
`
`Woonsocket Man Sentenced for Laundering Proceeds in
`Transcontinental Drug Trafficking Operation, U.S. Attorney’s Office
` District of Rhode Island (Apr. 29, 2021), https://www.justice.gov/usao-
`ri/pr/woonsocket-man-sentenced-laundering-proceeds-transcontinental-
`drug-trafficking-operation ...................................................................................... 3
`
`iv
`
`

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`INTRODUCTION
`
`Whether a state statute treads upon the protections set forth by the dormant
`
`Commerce Clause of the United States Constitution can be answered by asking and
`
`answering a straightforward question: Would striking down such a statute expand or
`
`enlarge the amount of legal commerce under federal law? If the answer to that
`
`question is “no,” then a state statute necessarily cannot inhibit interstate commerce
`
`in violation of the Constitution.
`
`That is precisely the scenario facing the Court in this case. Despite all the
`
`protestations from Plaintiff-Appellees Northeast Patients Group and High Street
`
`Capital Partners, LLC (collectively “NPG”), striking down Maine’s medical
`
`marijuana residency requirement would do nothing to legalize their illicit activity
`
`barred by Congress under the Controlled Substances Act. NPG’s grievance lies not
`
`with the State of Maine, but with a statute enacted by the United States Congress.
`
`ARGUMENT
`
`I.
`
`Marijuana Is Not Alcohol.
`
`NPG argues at length that Maine’s residency requirement should be struck
`
`down under Tennessee Wine & Spirits Retailers Association v. Thomas, 139 S. Ct.
`
`2449 (2019). See Red Br. at 6-10. But for purposes of analyzing the legal arguments
`
`in this case, marijuana and alcohol are obviously not comparable. See Blue Br. at
`
`13-15.
`
`1
`
`

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`First, alcohol is unique among commodities in that it is specifically addressed
`
`in the United States Constitution. See U.S. Const. amends. XVIII, XXI. As the
`
`Supreme Court noted in Tennessee Wine, the Twenty-First Amendment must be
`
`interpreted as “constitutionaliz[ing] the basic structure of federal-state alcohol
`
`regulatory authority that prevailed” before Prohibition. Id. at 2463. Nothing
`
`comparable is at play here.
`
`But more important than alcohol’s unique place in the Constitution—and
`
`explained in further detail below—is the fact that alcohol remains a legal commodity
`
`to manufacture, possess, purchase, and sell under federal law. Drawing comparisons
`
`between marijuana and alcohol (or any other commodity that is legal under federal
`
`law) is not helpful in this case.
`
`II.
`
`The Dormant Commerce Clause Does Not Apply to the Interstate
`Market for Medical Marijuana.
`
`Throughout its brief, NPG repeatedly claims that buying and selling marijuana
`
`is only “nominally” illegal under federal law. See, e.g., Red. Br. at 1, 3, 5, 11, 20,
`
`24, and 28. Such an assertion would presumably come as a surprise to the numerous
`
`federal agents, United States Attorney’s Office prosecutors, and charged defendants
`
`referenced by the Commissioner in her opening brief. See Blue Br. at 20 n.7.1
`
`1 Charlie Eichacker, Feds Charge 13 in Alleged Maine Marijuana Conspiracy,
`Including Cops, Prosecutor, and Selectman, Maine Public (Oct. 28, 2021, 6:26PM),
`https://www.mainepublic.org/news/2021-10-28/feds-charge-13-in-allegedmaine-
`marijuana-conspiracy-including-cops-prosecutor-and-selectman.
`
`2
`
`

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`
`
`Likewise, one simply needs to browse the news release page of any United States
`
`Attorney’s Office to confirm that marijuana is more than “nominally” illegal under
`
`federal law.2
`
`Nor can a defendant plead “nominally” guilty to a violation of the Controlled
`
`Substances Act any more than a defendant could be convicted of “nominal robbery”
`
`or “nominal wire fraud.” Correspondingly, the United States Sentencing
`
`Commission does not account for “nominal crimes” or “nominal convictions” when
`
`calculating an individual’s criminal history score under the United States Sentencing
`
`Guidelines.
`
`Quite simply, the manufacture, possession, sale, and purchase of marijuana
`
`remain illegal under the Controlled Substances Act. See 21 U.S.C. §§ 801-904.
`
`
`
` 2
`
` See, e.g., Former Operator of Waterville Medical Marijuana Business Pleads
`Guilty to Federal Drug and Firearms Offenses, U.S. Attorney’s Office District of
`Maine
`(Jan. 5, 2021), https://www.justice.gov/usao-me/pr/former-operator-
`waterville-medical-marijuana-business-pleads-guilty-federal-drug-and; Boston Man
`Sentenced for Marijuana and Tax Offenses, U.S. Attorney’s Office District of
`Massachusetts (Jan. 7, 2022), https://www.justice.gov/usao-ma/pr/boston-man-
`sentenced-marijuana-and-tax-offenses; New Jersey Man Pleads Guilty to Drug
`Trafficking, U.S. Attorney’s Office District of New Hampshire (Sept. 5, 2019),
`https://www.justice.gov/usao-nh/pr/new-jersey-man-pleads-guilty-drug-trafficking;
`Drug Trafficking Gang Member Sentenced to 30 Years in Prison, U.S. Attorney’s
`Office District of Puerto Rico (Apr. 8, 2021), https://www.justice.gov/usao-
`pr/pr/drug-trafficking-gang-member-sentenced-30-years-prison; Woonsocket Man
`Sentenced for Laundering Proceeds in Transcontinental Drug Trafficking
`Operation, U.S. Attorney’s Office District of Rhode Island (Apr. 29, 2021),
`https://www.justice.gov/usao-ri/pr/woonsocket-man-sentenced-laundering-
`proceeds-transcontinental-drug-trafficking-operation.
`
`
`
`3
`
`

`

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`
`
`A. Congress has shuttered all legal medical marijuana markets.
`
`In its brief, NPG insists that “the federal government has done nothing to
`
`interfere with Maine’s medical marijuana market.” See Red Br. at 12. NPG’s artful
`
`substitution of “the federal government” for “Congress” aside, nothing set forth by
`
`NPG rebuts the fact that Congress has eliminated all legal trade for medical
`
`marijuana through its enactment of the Controlled Substances Act.
`
`First, NPG asserts that “Maine’s medical marijuana program is part of a
`
`national market that includes 37 states . . . that have legalized medical marijuana to
`
`date.” Red Br. at 12. Even assuming true the unsupported fact that a “national
`
`market” for medical marijuana exists, such a national market is completely illegal
`
`per federal statute. In the eyes of Congress, the national market for medical
`
`marijuana is no more legally permissible than a national market for heroin,
`
`psilocybin, or LSD. See 21 U.S.C. § 812 (b), (c). NPG asserts that the “gap between
`
`what Congress might theoretically do with respect to medical marijuana markets,
`
`and what is actually happening, is too great to sustain the position the State . . . [has]
`
`taken.” See Red Br. at 13. But asking the Court to pretend that medical marijuana
`
`commerce is not illegal under federal law simply because significant illegal activity
`
`is taking place would be like insisting to a police officer that speeding is legal
`
`because so many motorists do so without facing a penalty.
`
`
`
`4
`
`

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`
`
`Second, NPG points to a series of generally applicable federal laws in an
`
`attempt to demonstrate Congress’s approval of the medical marijuana trade.
`
`Specifically, NPG points out that medical marijuana businesses must pay federal
`
`taxes and comply with the requirements set forth by the Occupational Safety and
`
`Health Act. Red Br. at 13. That medical marijuana businesses are not exempt from
`
`these generally applicable laws does not establish congressional approval.
`
`Al Capone was infamously convicted of failing to pay federal income tax, but no
`
`one could legitimately argue that Capone’s requirement to pay federal income tax
`
`under a generally applicable statute somehow translated into congressional approval
`
`of his racketeering activities.
`
`Third, NPG points to official guidance promulgated by the United States
`
`Treasury Department that permits banks to serve marijuana-related businesses if
`
`those banks comply with the Treasury Department’s reporting requirements. See
`
`Red Br. at 13. This point, too, is a non-sequitur. As the first page of the very
`
`guidance cited by NPG states, “[t]he Controlled Substances Act (“CSA”) makes it
`
`illegal under federal law to manufacture, distribute, or dispense marijuana.” BSA
`
`Expectations Regarding Marijuana-Related Businesses, FIN-2014-G001, Financial
`
`Crimes Enforcement Network, U.S. Treasury Department (Feb. 14, 2014). The
`
`guidance goes on to describe how banks may serve marijuana businesses and avoid
`
`federal prosecution considering the enforcement priorities set forth in the Cole
`
`
`
`5
`
`

`

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`
`
`Memorandum (discussed further below), but it also underscores that “[t]he Cole
`
`Memo reiterates Congress’s determination that marijuana is a dangerous drug and
`
`that the illegal distribution and sale of marijuana is a serious crime that provides a
`
`significant source of revenue to large-scale criminal enterprises, gangs, and cartels.”
`
`Id. The Treasury Department in no way purported to assert that Congress has
`
`approved of the marijuana trade.3 But even if it had, no regulatory guidance from
`
`an executive agency would suffice to trump a federal statute.
`
`Fourth, NPG points to the Cole Memorandum itself. Red Br. at 13-14. The
`
`Cole Memorandum was a document issued by the executive branch, specifically the
`
`Department of Justice, regarding enforcement priorities related to marijuana in states
`
`where the drug is legal under state law. As NPG concedes, “these executive branch
`
`policies are not acts of Congress.” Red Br. at 14. Where NPG goes astray is its
`
`assertion that the Cole Memorandum is “powerful evidence of the practical reality
`
`that there is commerce in marijuana across the nation that the federal government is
`
`
`3 In fact, the guidance cited by NPG notes that a financial institution’s “obligation to
`file a [Suspicious Activity Report] is unaffected by any state law that legalizes
`marijuana related activity” and that “a financial institution is required to file a
`[Suspicious Activity Report] on activity involving a marijuana-related business
`(including those duly licensed under state law), in accordance with this guidance and
`[the Financial Crimes Enforcement Network] suspicious activity reporting
`requirements and related thresholds.” BSA Expectations Regarding Marijuana-
`Related Businesses, FIN-2014-G001 at 3. The guidance goes on to detail how a
`financial institution should approach its suspicious activity reporting obligations,
`regardless of whether the financial institution believes the marijuana business at
`issue would be viewed as a priority under the Cole Memorandum. Id. at 3-7.
`
`
`
`6
`
`

`

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`
`
`on board with.” Id. For purposes of Commerce Clause analysis, it does not matter
`
`what the executive branch’s enforcement priorities are. What matters are the statutes
`
`enacted by Congress. And in any event, as the Commissioner pointed out in her
`
`opening brief, the Cole Memorandum underscores (not undercuts) the fact that
`
`Congress views marijuana as a dangerous and illegal drug. See Blue Br. at 19 n.5.
`
`Fifth, NPG asks the Court to consider the Rohrabacher-Farr Amendment that
`
`Congress regularly includes in its annual Consolidated Appropriations Act. See Red
`
`Br. at 14. Unlike the other evidence discussed above, the Rohrabacher-Farr
`
`Amendment does constitute a congressional pronouncement. But NPG’s reliance
`
`on the Amendment is misplaced because the Amendment does not state what NPG
`
`claims it does. NPG argues that by passing the Rohrabacher-Farr Amendment,
`
`Congress has “actively contributed” to the creation of a federal marijuana market.
`
`But as the Commissioner explained in her opening brief, the Rohrabacher-Farr
`
`Amendment merely sets enforcement priorities for how the Department of Justice
`
`may spend its finite number of congressionally appropriated dollars. See Blue Br.
`
`at 19 n.6. It does nothing to transform an illegal federal marijuana market to a legal
`
`one.4 Congress knows how to legalize (or decriminalize) the market for medical
`
`marijuana. Thus far it has chosen not to do so.
`
`
`4 NPG’s argument would be akin to arguing that a prosecutor’s declaration that she
`will not charge individuals for the crime of shoplifting is some sort of blessing of a
`market for shoplifted goods.
`
`
`
`7
`
`

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`
`
`NPG next argues that “[t]here is a vibrant interstate market in investment in
`
`marijuana companies [that] the federal government has done nothing to hinder.”
`
`Red Br. at 15. But what is an extensive criminalization and punishment scheme for
`
`the possession, manufacture, purchase, and sale of marijuana, see 21 U.S.C. §§ 841-
`
`865, if not an attempt to not only “hinder” the establishment of a marijuana market,
`
`but eliminate the market entirely? NPG quotes from Gonzalez v. Raich, 545 U.S. 1,
`
`18 (2005), for the proposition that “there is an established, albeit illegal, interstate
`
`market” in marijuana. Red Br. at 15. But “albeit illegal” is precisely the point. The
`
`dormant Commerce Clause seeks to protect the free flow of only legal goods and
`
`services permitted by Congress, nothing more.
`
`Finally, NPG reminds the Court that “‘Marijuana proprietors’ still have
`
`constitutional rights—including the right to due process, equal protection, freedom
`
`from unreasonable search and seizure, and the right to be free of unconstitutional
`
`statutes that discriminate based on state residency status.” Red Br. at 16. The
`
`Commissioner does not deny that NPG may enjoy certain constitutional rights. But
`
`as the Commissioner pointed out in her opening brief, the protections afforded by
`
`the dormant Commerce Clause are not individual rights. See Blue Br. at 8. Instead,
`
`the dormant Commerce Clause “protects the interstate market, not particular
`
`interstate firms, from prohibitive or burdensome regulations.” Id. (quoting Exxon
`
`Corp. v. Governor of Md., 437 U.S. 117, 127-28 (1978)).
`
`
`
`8
`
`

`

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`
`
`It is unquestionably true that “All objects of interstate trade merit Commerce
`
`clause protection; none is excluded by definition at the outset.” Red Br. at 16
`
`(quoting City of Philadelphia v. New Jersey, 437 U.S. 617, 622 (1978)). But as to
`
`medical marijuana, we no longer stand “at the outset.” Congress has eliminated any
`
`legal interstate market for marijuana. Because there is no legal interstate market in
`
`the realm of marijuana—medical or otherwise—there is nothing in this case for the
`
`dormant Commerce Clause to protect.
`
`B. Maine’s legalization of medical marijuana does not trigger application of
`the dormant Commerce Clause.
`
`NPG asserts that because Maine has created a legal intrastate market for
`
`medical marijuana under state law, it may not legally impinge upon the illegal
`
`interstate market for medical marijuana under federal law. Red Br. at 17-19. First
`
`and foremost, that argument is a distraction. Whether marijuana is legal under Maine
`
`state law has no bearing on the legal analysis of whether the illegal interstate
`
`marijuana market enjoys dormant Commerce Clause protections.
`
`NPG argues that there is something illogical about the fact that Maine law
`
`permits nonresidents to own some types of businesses that engage in its intrastate
`
`marijuana markets but not others. Red Br. at 17. But once one accounts for the fact
`
`that Maine’s intrastate medical marijuana market sits outside the sweep of the
`
`dormant Commerce Clause, the particular legal parameters of the market are of no
`
`
`
`9
`
`

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`
`
`
`moment here. If NPG has concerns with Maine’s policy choices, its relief lies not
`
`in federal court, but with the Maine Legislature.
`
`Finally, NPG suggests that there is something unfair about Maine creating an
`
`intrastate medical marijuana regime while prohibiting non-residents from
`
`participating in certain aspects of that regime. Red Br. at 18-19. The issue here,
`
`though, is not fairness, but whether the regime violates the dormant Commerce
`
`Clause. Any perceived unfairness is, again, a policy question for NPG to take up
`
`with the Maine Legislature.
`
`C. NPG miscomprehends the rationale of the case law cited by the
`Commissioner.
`
`First, NPG criticizes the Commissioner’s reliance on General Motors
`
`
`
`Corporation v. Tracy, 519 U.S. 278 (1997) “for the proposition that the dormant
`
`Commerce Clause does not apply to commerce in medical marijuana.” Red Br. at
`
`20-21. But NPG misunderstands the Commissioner’s reliance on Tracy. Tracy does
`
`not directly answer the question of whether the dormant Commerce Clause applies
`
`to Maine’s medical marijuana market. Instead, as the Commissioner explained in
`
`her opening brief, Tracy merely provides a roadmap for how courts should analyze
`
`questions of the dormant Commerce Clause’s sweep. Blue Br. at 11-13.
`
`
`
`Specifically, Tracy stands for the proposition that a Court must first ask
`
`whether the dormant Commerce Clause applies to a given market. Id. Only if the
`
`answer is “yes” does a court need to analyze whether the dormant Commerce Clause
`
`
`
`10
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`

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`
`
`has been violated. In Tracy, the threshold question was not met because the natural
`
`gas suppliers at issue operated in entirely separate markets. See Tracy, 519 U.S. at
`
`300; Blue Br. at 12. Here, the threshold question is not met because the market in
`
`which NPG participates has been made wholly illegal under federal law. In Tracy,
`
`legal “competition would not be served by eliminating any tax differential,” Red Br.
`
`at 20-21 (quoting Tracy, 519 U.S. at 303), because the parties operated in different
`
`legal markets. Here, legal competition will not be served by striking down Maine’s
`
`residency requirement because any increase in activity in Maine’s intrastate medical
`
`marijuana market will remain illegal under federal law.
`
`
`
`NPG asserts that the Commissioner “quote[d] selectively from certain cases
`
`in an effort to create the impression that the point of the dormant Commerce Clause
`
`is to promote national markets, seeking to deemphasize the importance of preventing
`
`states from enacting protectionist laws.” Red Br. at 22. Not true. Under normal
`
`circumstances involving legal goods and services, promoting national markets and
`
`discouraging protectionist state laws go hand-in-hand. The Commissioner never
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`sought to “deemphasize” the protectionist consequences of Maine’s residency
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`requirement. Such consequences are obvious from the face of the requirements at
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`issue. But the reason that courts admonished the state protectionist consequences in
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`each of the cases cited by NPG is that the products and services at issue were a legal
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`subject of commerce under federal law. Red Br. at 21-24 (citing Tracy, 519 U.S.
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`278 (natural gas); C&A Carbone, Inc. v. Town of Clarkstown, N.Y., 511 U.S. 383
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`(1994) (recycling); Tennessee Wine, 139 S. Ct. 2449 (alcohol); Exxon Corp., 437
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`U.S. 117 (petroleum products)).
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`The purpose of the dormant Commerce Clause is to protect legal interstate
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`markets from unnecessary protectionist state laws. When the market at issue is
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`illegal under federal law, courts need not examine whether the consequences of a
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`state law are protectionist. As the Eighth Circuit stated in Predka v. Iowa, 186 F.3d
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`1082, 1085 (1999) in upholding Iowa’s drug tax stamp law, “marijuana is contraband
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`and thus not an object of interstate trade protected by the Commerce Clause.” NPG’s
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`repeated references to “Maine’s legal medical marijuana market,” see, e.g., Red Br.
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`at 23-24, cannot wish marijuana into legal status under federal law.
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`III. Congress has affirmatively authorized Maine to enact a residency
`requirement in the market for medical marijuana through the passage
`of the Controlled Substances Act.
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`The Commissioner does not disagree with NPG’s statement that the key
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`question for the Court here “is not whether Congress has regulated commerce in
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`marijuana generally, but whether it has done so in a way that creates an exception to
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`the Constitution’s restriction on protectionist state laws.” Red Br. at 25. NPG
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`simply gets the answer wrong.
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`The Supreme Court has indeed stated that “for a state regulation to be removed
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`from the reach of the dormant Commerce Clause, congressional intent must be
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`unmistakably clear.” See Red Br. at 25 (quoting S.-Cent Timber Dev., Inc.
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`Wunnicke, 467 U.S. 82, 91 (1984). And this Court has likewise acknowledged that
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`“[t]he standard for finding congressional consent is high. Such consent must be
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`either expressly stated or made unmistakably clear.” N.Y. State Dairy Foods, Inc. v.
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`Ne. Dairy Compact Comm’n, 198 F.3d 1, 9 (1st Cir. 1999). But there are two
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`problems with NPG’s reliance on Wunnicke and New York State Dairy Foods. First,
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`these cases dealt with products that are not illegal under federal law: timber
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`(Wunnicke) and dairy products (New York State Dairy Foods). Because Congress
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`has not banned the manufacture, possession, purchase, and sale of timber or dairy
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`products, both the Supreme Court and this Court correctly held that the
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`congressional text at issue was not explicit enough to free Alaska or the New
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`England states from the dormant Commerce Clause’s sweep as it relates to timber
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`and dairy products, respectively.
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` Second, what these cases do not say is that there is some sort of set of “magic
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`words” that Congress must speak in order to free states from the dormant Commerce
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`Clause’s parameters. NPG implies that for Maine’s residency requirement to stand,
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`Congress must enact language more akin to that set out in Northeast Bancorp, Inc.
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`v. Board of Governors of the Federal Reserve System, 472 U.S. 159 (1985). But, as
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`with the markets discussed above, the market at issue in Northeast Bancorp
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`(banking) is not prohibited by federal statute. Congress necessarily needs to “plainly
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`authorize” specific state actions that would otherwise violate the dormant Commerce
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`Clause in markets that are not illegal under federal law. Red Br. at 27 (quoting
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`Northeast Bancorp, Inc. 472 U.S. 174). But here, Congress need not go further to
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`“plainly authorize” Maine’s residency requirement when Congress could hardly be
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`more explicit in its desire to eliminate economic protections for the medical
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`marijuana market when it has outlawed the market in its entirety.
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`One final case that NPG cites on this point is the District of Maine decision in
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`NPG, LLC v. City of Portland, Maine, No. 2:20-CV-00208-NT, 2020 WL 4741913
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`(D. Me. Aug. 14, 2020). There, the district court—presided over by the same district
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`court judge in this case—stated that “the [Controlled Substances] Act nowhere says
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`that states may enact laws that give preference