Are National Policy Reforms Creating an Interstate Commerce Trap?
This article reviews Interstate Cannabis Legalization: Mind the Trap authored by Audrey Redford, Nicholas A. Snow, & Todd M. Nesbit published in the Journal of Law & Politics in 2025 (Free online)
Federal Cannabis Reform and the Coming Legal Battleground
Federal cannabis reform often looks like a mirage — shimmering on the horizon, never quite within reach. Yet when it arrives, how Congress handles interstate commerce will determine whether cannabis becomes a truly national industry. However, it may be inevitable that some degree of fragmentation into state-protected markets will be maintained.
In Interstate Cannabis Legalization: Mind the Trap (Journal of Law & Politics, 2024), Audrey Redford and colleagues take aim at one of the most hotly debated ideas in cannabis law: suspending the Dormant Commerce Clause (DCC). This constitutional doctrine ordinarily prevents states from walling off markets against out-of-state competition. Some scholars argue cannabis should be exempt — at least temporarily — to let local businesses adjust. Redford and her coauthors warn this could be a profound mistake.
The Transitional Gains Trap
Economists have a phrase for what happens when regulations create privileges that are nearly impossible to unwind: the transitional gains trap. The paper argues that suspending the DCC would deepen this trap, entrenching monopoly rents and fueling rent-seeking rather than competition. Instead of smoothing the road to federal legalization, such protectionism risks repeating familiar patterns from alcohol post-Prohibition and cigarette smuggling markets.
Lessons for Cannabis Litigation and Policy
The article carries clear implications for cannabis litigation and regulatory disputes:
Illicit markets persist under protectionism — California, New York, and Washington show how high excise taxes and licensing exclusivity drive illicit trade.
Legal challenges are inevitable — courts will have to grapple with whether state-level residency requirements, social equity licensing, and import-export bans violate the DCC.
Expert testimony will matter — cases touching on constitutional commerce, consumer safety, and economic harms will require voices that bridge science, policy, and law.
Why This Matters for the Legal Community
For policymakers, the article is a warning: don’t confuse protectionism with pragmatism. Shielding state markets might calm short-term political resistance, but it can undermine competition, innovation, and consumer welfare in the long run. For attorneys, litigators, and regulators, the piece signals a growing field of cannabis and hemp litigation where constitutional law, economics, and public health collide.
As a court-qualified expert witness in cannabis and hemp, I see these themes play out regularly: disputes over THC thresholds, product labeling, interstate transport now intersect with constitutional questions about commerce and protectionism. The “trap” is not just theoretical — it’s the backdrop for the next wave of lawsuits and regulatory showdowns.
Closing Reflection
The brilliance of Mind the Trap lies not only in its economic modeling but in its reminder that law is never static. Federal legalization without true interstate commerce is not legalization at all; it is protectionism dressed in new robes. If we want a cannabis market that is fair, competitive, and legally durable, the Dormant Commerce Clause should not be suspended; it should be respected.
If your firm is navigating cannabis litigation, regulatory disputes, or hemp-related compliance issues, this is exactly where expert insight matters — translating the science, economics, and law into clear evidence for courts and policymakers. Schedule a call today!
