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Weed can't be shipped across state lines. A lawsuit in Oregon hopes to change that

JUANA SUMMERS, HOST:

Marijuana is now legal in some form in most states, but it is still illegal to transport it across state lines. As a result, several states are facing an unusual problem - too much marijuana. Amanda Aronczyk of our Planet Money team looks at how one entrepreneur and his lawyer are tackling the problem.

AMANDA ARONCZYK, BYLINE: Matt Ochoa and I are at a farm, and it's a bit like being at one of those giant corn mazes. But instead of corn, it's all seven- or eight-foot-high marijuana plants.

MATT OCHOA: These are not even big, big plants in Oregon's scope.

ARONZYK: Really?

OCHOA: I've seen plants 12, 17 feet tall.

ARONZYK: Matt runs a company called Jefferson Packing House that helps farms like this one with harvesting and processing their plants. Lately, they just leave perfectly good weed in the field, don't even bother harvesting all of it.

OCHOA: If we were in 1996 and a high school kid came through here, he'd think he died and went to heaven (laughter).

ARONZYK: Because there's still a lot of weed here.

OCHOA: There's tons.

ARONZYK: That's because Oregon is growing so much weed these days, there is nearly a pound of dried, smokable weed for every single person in the state - great if that's what everyone wants but bad if you're trying to sell it. The sale price was a lot higher a few years ago.

OCHOA: Every gram was worth five, 10 bucks, and now it's like a gram of finished flower is, like, a dollar.

ARONZYK: Matt thinks the solution to Oregon's glut of marijuana is pretty straightforward - trade. Sell it to people who want it outside of the state.

OCHOA: We are an export state. Without export, we're really going to struggle. It's like if you try to take, like, Georgia peaches and say they could only sell them in Georgia.

ARONZYK: Matt thought that he'd be exporting marijuana, that federal legalization would have happened by now. But there are actually still a bunch of barriers to selling Oregon weed out of state, not just federal law but also, somewhat surprisingly, a state ban. All states that have legalized marijuana have this kind of ban on their books. It's largely a nod to federal prohibition. So last year Matt agreed to be part of a lawsuit against the state of Oregon brought by lawyer Andrew DeWeese. The point...

ANDREW DEWEESE: All businesses in Oregon should be free of this unconstitutional ban that Oregon has put on import and export.

ARONZYK: Yes, he said unconstitutional. That's because of a clause in the Constitution, the Commerce Clause.

DEWEESE: Yeah. Article I, Section 8, Clause 3 of the U.S. Constitution gives Congress the power to, quote, "regulate commerce with foreign nations and among the several states and with the Indian tribes."

ARONZYK: Congress regulates trade, not the states. Like, Michigan can't pass a law that says supermarkets in Michigan can only sell apples grown in Michigan - no apples from, you know, Washington or Virginia. So Andrew is arguing that Oregon's ban is unconstitutional. This lawsuit is kind of a way to skirt around federal prohibition. Like, they're hoping that the federal government would just look the other way if Oregon had no ban and, say, Nevada also had no ban. Then maybe those two states where marijuana is legalized could both enjoy weed from Oregon.

DEWEESE: We grow the best marijuana in the world.

ARONZYK: Oh, wait. Hold on. I just got a phone call from California, and they would like to dispute that with you.

(LAUGHTER)

DEWEESE: I'll dispute that all day (laughter).

ARONZYK: Commerce Clause arguments have had some success in the marijuana industry over the last couple of years, but because this one requires other states to also strike down their bans, it could be complicated. Amanda Aronczyk, NPR News. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Amanda Aronczyk (she/her) is a co-host and reporter for Planet Money, NPR's award-winning podcast that finds creative, entertaining ways to make sense of the big, complicated forces that move our economy. She joined the team in October 2019.