The U.S. Court of Appeals for the Tenth Circuit decided Safe Streets Alliance v. Hickenlooper in the summer of 2017, opening a new front in the war being fought over the nation’s most significant modern experiment in federalism: the ongoing national movement by states to legalize the use of marijuana for medicinal and recreational purposes despite its federal prohibition. The Safe Streets court held that private litigants could bring civil actions against statelegal marijuana operations under the federal Racketeering and Corrupt
Organizations Act (“RICO”), with the state-licensed activity serving as the predicate federal violation. But even as legalization foes crowed about their newfound cudgel against the industry, a crucial question remained unaddressed. RICO and the predicate drug laws are federal statutes, and, accordingly, apply only to the extent permitted under the Congress’ interstate commerce power. Does the state-licensed conduct at issue fall within reach of that interstate commerce power? Some assume, in cursory fashion, that the Supreme Court answered that question in Gonzales v. Raich. To the contrary, close scrutiny reveals that Raich does not merely fail to foreclose an as-applied challenge by a state-legal marijuana operator, it in fact suggests that such a challenge could succeed in light of the very significant differences between modern marijuana regulation and the regulation at issue in Raich—particularly as states further dynamically revise their marijuana laws in order to withdraw them from the ambit of the commerce power. This article includes a discussion of practical potential regulatory revisions that states may adopt in response to the threat of RICO liability for their licensed businesses.