The current federal-state split on marijuana’s legality has raised an unprecedented constitutional question: whether the dormant Commerce Clause, a doctrine designed to promote interstate commerce, should apply to federally illegal—but state-legal—goods. Since the turn of the century, states legalizing marijuana have enacted regulations restricting dispensary ownership and operation to residents and have prohibited marijuana import and export. These regulations have been challenged in federal court as violating the dormant Commerce Clause on grounds of economic protectionism. While these regulations appear facially discriminatory and would normally violate the dormant Commerce Clause’s antidiscrimination principle, applying this doctrine to strike them down paradoxically expands interstate commerce in a federally prohibited substance—directly contradicting the doctrine’s fundamental purpose of facilitating lawful interstate trade. Recent court decisions invalidating these regulations have also failed to recognize the legitimate, non-protectionist reasons for these regulations, including compliance with DOJ enforcement guidelines, facilitating access to federal banking systems, and implementing health and safety protections in the absence of FDA oversight. Accordingly, this Note advocates for a bright-line rule exempting federally illegal products from dormant Commerce Clause scrutiny. This approach preserves the dormant Commerce Clause’s core purpose and respects principles of federalism by allowing state experimentation with marijuana policy and honoring states’ rights as co-equal sovereigns to regulate—or prohibit—marijuana within their borders.
* J.D. Candidate, 2026, University of Illinois College of Law; B.A., 2022, Knox College. Thank you to the staff, members, and editors of the University of Illinois Law Review for their hard work on this Note. Special thanks to Professor Jason Mazzone, whose Constitutional Law exam prompted this Note, and whose probing questions and thoughtful pushback sharpened my arguments and strengthened my writing. This Note is dedicated to my parents, two wonderful academics who inspired me to write and publish something of my own.
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