Legal Scholars See a Possible Workaround to Federal Prohibition But Operators Are Wary of the Risk
A Growing Question in Cannabis Policy: Can Interstate Commerce Move Forward Without Federal Legalization?
Riana Durrett, director of the University of Nevada Las Vegas Cannabis Policy Institute, has spent her career advising cannabis operators on how to stay within the strict boundaries of state and federal law. But lately, she and other legal scholars have been exploring an increasingly provocative question: What if the Constitution allows interstate cannabis commerce even without federal legalization or rescheduling?
Durrett is clear: She cannot advise anyone to break the law. But she also sees potential in testing the boundaries of the dormant commerce clause the constitutional doctrine that restricts states from discriminating against interstate commerce. And that, she suggests, may be the industry’s most overlooked path forward, independent of President Donald Trump’s long-awaited rescheduling decision.
“I’m a believer in the dormant commerce clause arguments,” she said. “Interstate commerce is no more illegal than intrastate commerce. I think this is a dam that could break before legalization or rescheduling.”
Durrett will take the stage at MJBizCon to discuss this looming legal crossroads alongside other top industry voices.
A Roadmap to Reform Before Legalization or Rescheduling
Joining Durrett for the panel, “Charting a Profitable Path in an Era of Balkanized Cannabis Policy,” are three influential stakeholders navigating the chaos of federal-state contradictions:
- Michelle Rutter Friberg, National Cannabis Industry Association
- Bryan Barash, VP of External Affairs and Deputy Counsel at Dutchie
- Michael Bronstein, President of the American Trade Association for Cannabis and Hemp
Each brings a different lens advocacy, technology, and federal policy—to an increasingly urgent question: How do cannabis businesses plan for a future defined by uncertainty?
The Dormant Commerce Clause: A High-Risk, High-Reward Legal Theory
Under constitutional law, Congress holds the exclusive authority to regulate interstate commerce. Courts have repeatedly blocked states from creating protectionist policies that discriminate against out-of-state businesses.
Yet Congress hasn’t legalized cannabis. So what stops a compliant Oregon cultivator from shipping product to a licensed New York retailer if both states explicitly allow it?
“Legally speaking, the question is wide open,” Durrett explained. “I can see why states and operators don’t want to take the risk, but many believe interstate commerce isn’t a different or worse crime than intrastate commerce.”
The opportunity is enormous. The downside? Potential federal enforcement, regulatory retaliation, and the collapse of licenses and multimillion-dollar operations.
“I’d love to see these boundaries tested,” Durrett said. “But I understand there is too much to risk.”
Operators Are Forced to Navigate a Patchwork And Turn a Profit Anyway
The uneven state-by-state model has forced operators to become accidental legal scholars. They must decipher federal statutes, state regulations, court decisions, and shifting guidance—all while running businesses that operate under some of the tightest margins in American industry.
Turning that knowledge into a viable business plan is a constant battle.
“Psychologically, it’s exhausting,” said Durrett, noting the rollercoaster of public support, failed federal efforts, and political mixed signals. Operators are stuck in limbo, waiting for federal leaders to deliver on promises that never materialize.
And even if rescheduling moves forward, she urges the industry not to assume it will fix everything.
“All operators need to anticipate that the current landscape could remain unchanged for years—or could rapidly change,” she explained. “You must prepare for both.”
Rescheduling Hopes and a Warning Not to Rely on Them
Durrett remains cautiously optimistic that President Trump could move forward with rescheduling cannabis, potentially before the 2026 midterm elections. But she emphasizes: no operator should build their strategy around it.
“I might be too skeptical, but I’ve fallen for convincing predictions too many times,” she said. “I think incremental change is far more likely.”
And incremental change doesn’t always change the fundamentals. For example, consumption lounges years in the making in states like Nevada and Massachusetts—have done little to shift overall profitability. Operators still face high taxes, limits on deductions, and regulatory burdens that restrict scalability.
“Decisions about cannabis seem to ignore reality sometimes,” Durrett added.
What Operators Should Do if Federal Reform Takes Longer Than Expected
Durrett recommends a dual-track approach:
- Plan for extended federal stagnation
The industry must be able to survive several more years under the current patchwork system. That means mastering compliance, optimizing operations, reducing risk exposure, and making conservative financial choices.
- Stay nimble for sudden industry shifts
Federal reform whether incremental or sweeping could shake up business models overnight. Companies positioned to pivot quickly will dominate the next era.
“They need to be prepared for both,” she said. “Models could vastly change, and the operators prepared to change will be the most successful.”
The Path Forward: High Stakes, High Uncertainty, and High Potential
As MJBizCon attendees gather to debate the future, Durrett’s message is clear: the next major shift in cannabis policy may not come from Congress or the White House. It may come from a courtroom.
“This is why dormant commerce clause arguments matter,” she said. “They could open the door before federal legalization or rescheduling.”
But until the industry finds its breakthrough legal, regulatory, or political operators must navigate a landscape defined by uncertainty, creativity, and resilience.
One thing is certain: cannabis companies can no longer afford to sit still.
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