Among the myriad legal issues confronting states like Colorado that are experimenting with the legalization of marijuana is the need to regulate €œpot tourism € by persons from other states where marijuana is not legal. In Colorado, the final recommendations from the Amendment 64 Implementation Task Force included a proposal, €œto limit purchases by state residents to an ounce at a time and to a quarter of an ounce for out-of-state visitors.” The lower restrictions for nonresidents are designed to deter pot tourists from €œsmurfing € €” visiting a number of different dispensaries to accumulate larger amounts of marijuana with a view to illegally reselling the pot. Colorado €™s legislature adopted the Task Force €™s recommendation in House Bill 1317, recently signed into law by Colorado €™s governor, which established the regulatory framework for the legal sale of marijuana. Among its provisions is a quarter-ounce purchase limit for nonresidents.
Treating purchasers of a legal product differently based on state residency implicates constitutional doctrines that limit a state €™s ability to discriminate against nonresidents. This essay examines the Colorado recommendation in light of two of those doctrines: the Privileges and Immunities Clause of Article IV, Section 2; and the Dormant Commerce Clause Doctrine (DCCD). At first glance, Colorado €™s facially discriminatory law appears to be almost certainly unconstitutional under current doctrine. I will argue in the remainder of this essay, however, that Colorado could put forth compelling arguments that its law passes constitutional muster. Part II briefly describes the Task Force €™s recommendation and its subsequent adoption by the legislature. In Part III, I analyze the Colorado nonresident purchase limit under both the Privileges and Immunities Clause of Article IV and the DCCD. A brief conclusion follows in Part IV, which also suggests a role the federal government could play to remove considerable, though not all, constitutional doubt from state regulations of pot tourism.
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