November 14, 2022
Oregon Governor, Kate Brown
Oregon Attorney General, Ellen Rosenblum
Oregon Liquor and Cannabis Commission Executive Director, Steve Marks
Dear Governor Brown, Attorney General Rosenblum, and Director Marks:
Today, November 14, 2022, our client Jefferson Packing House, LLC, a licensed marijuana wholesaler located in Southern Oregon, has filed a lawsuit in the United States District Court for the District of Oregon seeking a declaration that Oregon’s state laws prohibiting the export of marijuana are unconstitutional under the Constitution of the United States. We recognize that marijuana is still illegal under federal law, and that this lawsuit will not change that fact. However, we believe that the State of Oregon should be fully aligned with supporting its local marijuana industry, and therefore that Oregon law should no longer prohibit the export of marijuana to other states.
Our case rests on solid legal grounds. Under the Commerce Clause, the federal Congress is given exclusive legal authority to regulate commerce between the States. Under the dormant Commerce Clause (“DCC”), the States are prohibited from enacting laws regulating interstate commerce, because it is the exclusive purview of Congress. Under the DCC, for example, an Oregon law prohibiting the export of hazelnuts (or grapes, semiconductors, Bigfoot decals, etc.) would be invalidated.
We believe it is likely that a federal court will treat marijuana like hazelnuts and invalidate state laws prohibiting the export of marijuana notwithstanding the fact that it is illegal under federal law. A recent Federal Appeals Court case out of the First Circuit called NE Patients Group and High Street Capital v. Maine held that the DCC prohibited Maine from imposing residency requirements on medical marijuana license holders, and as a result struck down those laws. This decision indicates a growing consensus within the courts to view marijuana commerce the same as any other commerce and there is no reason to think that courts in our federal circuit would reach a different result. Leading marijuana legal scholars support this position.
Through a near-perfect confluence of geography, climate, deep cannabis culture, a spirit of innovation and entrepreneurship, and smart regulation, Oregon’s marijuana industry has the potential to be the standard by which all others are judged. Yet the export prohibition has hurt the Oregon marijuana industry, and now threatens its future. Indeed, Oregon’s export prohibition – together with the import/export prohibitions of other states – has created the very evil the drafters of the United States Constitution were concerned with preventing: that farmers from one state are denied the markets of another. This has unfairly hobbled Oregon’s marijuana industry and stymied it at a time when it should be flush with growth.
Oregon has historically led the charge against marijuana prohibition. Oregon was the first state to decriminalize marijuana, way back in 1973. In 1998, Oregon was the second state to allow medical cannabis. And in 2014, Oregon was among the second tranche of states to legalize recreational cannabis.
Will you now stand with us as we continue our great state’s tradition of fighting against the inequity of federal marijuana prohibition?
We respectfully ask that each of you, in your official capacities, take no action to defend the Oregon laws prohibiting the export of marijuana, which are the subject of our lawsuit, and join in our prayer that the district court enter a judgment declaring that such laws are unconstitutional. Together, our meritorious lawsuit, and the support of the State of Oregon, will send a powerful message to our leaders in Washington. Will you join us?
Andrew C. DeWeese, Green Light Law Group
Kevin J. Jacoby, Green Light Law Group