In this CRB Monitor News article, Shay Aaron Gilmore is quoted providing expert commentary on whether the U.S. Supreme Court is likely to take up the unresolved question of whether the Constitution’s dormant Commerce Clause applies to the cannabis industry — a question thrown into sharp relief by a developing split among the federal courts of appeals. The article examines the aftermath of the Ninth Circuit’s ruling that the dormant Commerce Clause does not apply to cannabis so long as it remains federally illegal, a holding that conflicts with the Second Circuit’s contrary 2025 decision and sets up a potential Supreme Court showdown.
Gilmore’s quoted analysis addresses the interplay between the circuit split and the ongoing federal rescheduling effort — a dynamic he is especially well positioned to assess, given his authorship of the foundational 2023 Daily Journal article analyzing California social-equity provisions under the dormant Commerce Clause. He observes that the split is “cert-worthy on its face,” but explains that federal rescheduling and the Court’s historical reluctance to engage cannabis issues create genuine uncertainty about whether the Court will actually grant review.
Most notably, Gilmore offers a conditional prediction that captures the strategic complexity of the moment: if rescheduling stalls, he explains, the likelihood of the Court granting certiorari increases substantially; but if rescheduling proceeds, the Court will likely deny cert and allow the issue to develop further under the new regulatory framework. This kind of nuanced, scenario-based analysis — tying a procedural question about Supreme Court review to the substantive trajectory of federal cannabis policy — is characteristic of the counsel Gilmore provides to operators and investors trying to plan around legal uncertainty.
The article reinforces Gilmore’s standing as a recognized authority on the dormant Commerce Clause’s application to cannabis, an issue on which his published analysis has been ahead of the courts. For visitors to the media page, the piece demonstrates that industry publications seek out Gilmore not only for legislative summaries but for sophisticated constitutional and appellate analysis at the frontier of cannabis law.