By Mike Dorf
Last week, a judge in the Netherlands rejected a challenge to the country's new ban on foreigners' entrance to Dutch "coffee shops," where marijuana has long been sold. Dutch citizens will still be able to visit coffee shops with a government-issued "weed pass." I haven't been able to find the actual opinion, but the news stories (e.g., here) report that the law was challenged as violating Dutch anti-discrimination law, and was upheld on the ground that it was justified to fight criminality associated with the international drug trade.
The coffee shop owners have indicated that they will appeal and the case could eventually end up before the European Court of Justice (ECJ) on the ground that it violates the provisions of the EU Treaties governing free movement of goods, services and persons. But if so, the ban will likely be upheld under reasoning along the lines of a December 2010 ECJ ruling that upheld a similar law that only applied in Maastricht. In that case, the ECJ said: 1) Marijuana is illegal under EU law; 2) it is also illegal under Dutch law but "tolerated" in coffee shops by the Dutch authorities, who reserve their enforcement resources for hard drugs; 3) therefore, the provisions of the treaty governing freedom of movement of goods do not apply, because the relevant good here is contraband; and 4) although there is a colorable argument that excluding foreigners from the coffee shops deprives them of the legal services there (provision of food and non-alcoholic beverages), the infringement on the free movement of services is incidental to the prohibition's target of illegal drug trafficking, and a proportional limit.
That all strikes me as plausible, but here I want to consider the issue as a matter of first principle, and then ask what implications it may have for the U.S., which has similar principles as a matter of interstate federalism. The basic principle of origin non-discrimination in a free trade union like the EU or the U.S. (both of which, especially the U.S., are much more than free trade unions, of course) says that a member unit shall not discriminate against commerce--whether persons, goods or services--simply on the basis of the country of origin. Putting aside exceptions and some important details, the basic principle under EU law as well as the parallel provisions in the U.S. (the dormant Commerce Clause, the Privileges and Immunities Clause of Article IV, and the Fourteenth Amendment), requires some scrutiny between the ends and means to ensure that the member unit doing the discriminating is really keeping out something harmful because of the special harms associated with travel or transit, rather than simply discriminating.
If we apply that principle, there is reason to doubt that the anti-crime justification for restricting weed passes to Dutch citizens should hold up. Certainly, the Dutch authorities could first try lesser, non-discriminatory, measures--such as ensuring that only personal-use quantities are sold, whether to Dutch citizens or foreigners. Moreover, critics argue that by cracking down on the coffee shops, Dutch authorities will not keep out foreigners seeking drugs, but simply relegate them to the more dangerous street trade.
Proportionality analysis under EU and Dutch law is structured a bit differently from the parallel inquiry under U.S. law but it's in the same broad family. So how would the case turn out in the U.S.? We don't have Dutch-style coffee shops but we do have a fair number of states that permit medical marijuana. Most (perhaps all?) of these states restrict its sale to in-state residents. Is that justifiable?
The issue may not arise in the current climate because of the federal prohibition on marijuana possession, including for medical purposes. Thus, any dormant Commerce Clause challenge to a state's reservation of medical marijuana permission to its own citizens would founder on the federal Controlled Substances Act, which was upheld by the Supreme Court as an exercise of congressional power under the non-dormant (waking?) Commerce Clause in the Raich case. Another way to put that point is that medical marijuana occupies roughly the same position in a state like California or Colorado as does marijuana in general in the Netherlands: It's banned by the larger political unit (the U.S. and the EU, respectively), but tolerated.
Suppose, however, that we imagine repeal of the federal marijuana prohibition. Now let's consider what would happen with two adjacent states with different laws. I'll take Vermont and New Hampshire. Vermont generally prohibits marijuana but permits it for medical use for state residents. New Hampshire prohibits it across the board. Suppose that an ailing citizen of New Hampshire who would be eligible for medical marijuana if she lived in Vermont, seeks but is denied a license by Vermont on the grounds that she resides in New Hampshire. Would that be permissible?
I tend to think not. Let's assume that, at least for constitutional purposes, the state's general interest in forbidding marijuana possession is valid. Then Vermont has an interest in ensuring the integrity of its licensing system to prevent recreational users masquerading as medical marijuana patients. But the state does not need to forbid out-of-staters from obtaining medical marijuana in order to vindicate that interest. States have an interest in keeping incompetent drivers off of their roads, but they vindicate that interest by requiring either an in-state driver's license for in-staters or an out-of-state license for out-of-staters. They could do the same for medical marijuana.
Now perhaps Vermont might worry that other states license medical marijuana users on less stringent criteria than Vermont does. That concern wouldn't apply to New Hampshireans, who are not licensed for medical marijuana use by their home state at all, but such an interest might be sufficient to require that anyone seeking to use medical marijuana in Vermont first seek and obtain a Vermont license. Even if so, Vermont would need to issue the license to a qualified New Hampshirean.
Suppose, however, that Vermont were to treat medical marijuana like driving: If you live in Vermont, you need a Vermont license; if you live in another state, you can get medical marijuana by showing your home state license. This works fine for driving because every state licenses drivers, but leaves our New Hampshirean out of luck. A Californian or Coloradan in Vermont could obtain medical marijuana by showing the license from his home state, but New Hampshireans cannot obtain licenses anywhere.
Would that regime survive? We could imagine that Vermont might justify it on the ground that it wants to avoid drawing people to the state simply for the purpose of getting medical marijuana. No one from San Francisco or Denver will travel to Montpelier just to get medical marijuana when they can get it at home, but someone from Concord well might. But does a state have a legitimate interest in preventing out-of-staters from visiting the state to take advantage of its laws?
Here too, I think the answer is no. Most of the Supreme Court cases in this area address the limits on a state's power to discourage out-of-staters from migrating to the state to become residents. E.g., in Saenz v. Roe the Court reaffirmed limits on a state's power to deny (or in that case, reduce) welfare benefits as a means of discouraging migration. But in the course of discussing the right to migrate, the Court also affirmed "the right to be treated as a welcome visitor." States have some authority to preserve state resources for state residents rather than visitors, but denying to an out-of-stater the right to purchase medical treatment that the state permits for its own citizens does not fit into that authority.
Whether the foregoing analysis might hold even under the current regime of federal prohibition is a separate question, but I don't think it's a slam-dunk. Saenz, after all, did not root the right to travel in the dormant Commerce Clause, and so it is at least possible to say that the federal Controlled Substances Act has no bearing on the right-to-travel analysis. In other words, perhaps the Constitution ought to be treated as presumptively forbidding discrimination against out-of-staters even with respect to illegal activity. That would be contrary to the ECJ approach in the Maastricht case, but so what? Certainly, if a state discriminated on the basis of race or sex with respect to medical marijuana licenses--even while marijuana was illegal under federal law--that would be a prima facie equal protection violation. Is it obvious that discrimination against out-of-staters is different from race or sex discrimination?
Of course, this could be a case of be-careful-what-you-wish-for. One could imagine that successful litigation requiring states that license medical marijuana to open themselves up to out-of-staters could lead to a backlash: either state-level repeal of medical marijuana laws even for in-staters or stepped-up federal enforcement of the Controlled Substances Act. And one wonders whether the same calculation should apply in the Netherlands: Perhaps coffee shop owners who push too hard to be able to serve tourists could end up losing the right to operate at all.