One Toke over the (State) Line: Constitutional Limits on "Pot Tourism" Restrictions

This Essay examines the Colorado recommendation in light of two of those doctrines: the Privileges and Immunities Clause of Article IV, Section Two and the dormant Commerce Clause doctrine (DCCD). At first glance, Colorado's facially-discriminatory law appears to be almost certainly unconstitutional under current doctrine. This Essay will argue, however, that Colorado could make a compelling case that its law does pass constitutional muster. This argument is bolstered by the U.S. Supreme Court's recent treatment of both Privileges and Immunities and dormant Commerce Clause claims in McBurney v. Young, as well as recent federal guidance on enforcement of federal drug laws.

Part I of this Essay briefly describes the task force's recommendation, its subsequent adoption by the Colorado legislature, and a recent Department of Justice (DOJ) memorandum providing enforcement guidance in light of state legalization initiatives. The DOJ memo is particularly relevant to the defense-addressed in Part I---of the Colorado nonresident purchase limit under both the Privileges and Immunities Clause and the DCCD. Finally, a brief conclusion suggests a role the federal government could play to remove considerable, though not all, constitutional doubt from state regulation of pot tourism.