In this widely cited Daily Journal article, Shay Aaron Gilmore examines one of the most consequential unresolved constitutional questions in cannabis law: whether California’s cannabis social-equity provisions can withstand scrutiny under the dormant Commerce Clause as the state moves toward legislatively authorized interstate cannabis commerce. Written well before the issue reached the federal courts of appeals, the article proved notably prescient — Gilmore’s analysis anticipated the “collision course” that has since produced a genuine circuit split.
Gilmore begins by explaining the dormant Commerce Clause framework: the Supreme Court’s general rule striking down state statutes that directly discriminate against interstate commerce or favor in-state economic interests, and the balancing test applied where a statute has only indirect effects and otherwise regulates evenhandedly. He then maps that framework onto California’s cannabis regime, where local ordinances frequently include social-equity provisions that prioritize local residents — often those with in-state cannabis convictions or residence in disproportionately impacted neighborhoods — for licensing preferences.
The article analyzes SB 1326, which authorizes the Governor to enter into interstate cannabis agreements upon the occurrence of specified federal or state trigger events, and explains why the prospect of authorized interstate commerce sharpens the constitutional exposure of residency- and conviction-based preferences. Gilmore surveys the early federal litigation in California, Oregon, and Washington challenging social-equity provisions on dormant Commerce Clause grounds, and he explains the competing judicial theories: on one side, that federal criminalization of cannabis renders the dormant Commerce Clause inapplicable (as several district courts held); on the other, that protectionist state schemes remain constitutionally suspect regardless of federal prohibition.
Gilmore’s core thesis — that California’s social-equity provisions could be vulnerable to dormant Commerce Clause challenge and that policymakers should anticipate that scrutiny — has been borne out by subsequent appellate decisions, including the Second Circuit’s 2025 ruling that the clause applies to state cannabis regimes and the Ninth Circuit’s contrary 2026 holding, together setting up a potential Supreme Court showdown. The article remains a foundational practitioner treatment of the issue and reflects Gilmore’s recognized analytical leadership in California cannabis law.