Pre‑Enforcement Challenges to Cannabis Licensing Residency and Social‑Equity Restrictions Are Ripe and Justiciable: Commentary on Jensen v. Rhode Island Cannabis Control Commission (1st Cir. 2025)

Pre‑Enforcement Challenges to Cannabis Licensing Residency and Social‑Equity Restrictions Are Ripe and Justiciable

A Comprehensive Commentary on Jensen v. Rhode Island Cannabis Control Commission, No. 25‑1132 (1st Cir. Nov. 25, 2025)

I. Introduction

This First Circuit decision in Justyna Jensen v. Rhode Island Cannabis Control Commission sits at the intersection of two major currents in contemporary U.S. law:

  • The rapid development of state cannabis markets – particularly “social equity” licensing programs designed to remediate past harms from cannabis prohibition; and
  • Federal constitutional constraints on states, especially the dormant Commerce Clause and the rules of Article III justiciability (standing, ripeness, mootness).

The opinion does not decide whether Rhode Island’s residency requirement and social‑equity qualifications are constitutional. Instead, it addresses a threshold question: can an out‑of‑state entrepreneur challenge those requirements before the licensing process formally opens and before she spends significant capital preparing an application?

The First Circuit answers with a firm yes. It reverses the district court’s dismissal on ripeness grounds, holds that the case is neither unripe nor moot, finds that the plaintiff has Article III standing, and remands for expedited consideration of the merits of her dormant Commerce Clause and Equal Protection claims.

In doing so, the court lays down a clear and practically important rule: when a statute on its face excludes a would‑be applicant from a licensing scheme, a facial pre‑enforcement challenge is ripe and the plaintiff has standing without first incurring the heavy costs of preparing a futile application. The court also takes the unusual step of directing the district court to resolve both merits and remedies on remand at least forty‑five days before licenses will issue.

II. Case Background

A. The Rhode Island Cannabis Act and Licensing Structure

Rhode Island’s 2022 Cannabis Act (“Act”), R.I. Gen. Laws § 21‑28.11‑1 et seq., legalized adult‑use (recreational) cannabis and established a new Cannabis Control Commission (“Commission”) with broad authority over licensing.

Key statutory features relevant to this appeal include:

  • Retail licenses: The Commission is authorized to grant twenty‑four retail licenses for non‑medical cannabis sales statewide. The state is divided into six geographic zones, and each zone may receive up to four licenses. (R.I. Gen. Laws §§ 21‑28.11‑10.2(a)(2), 21‑28.11‑10.3.)
  • Social equity set‑aside: One license in each zone (six total, or 25% of all retail licenses) must be reserved for a “social equity applicant.” (Id. § 21‑28.11‑10.2(a)(3)(ii).)

The Act then specifies:

  • Minimum qualifications for all applicants; and
  • Additional criteria defining “social equity applicants.” (Id. §§ 21‑28.11‑10.2(b); 21‑28.11‑3(39).)

B. Statutory Provisions Challenged

Plaintiff Justyna Jensen challenges three statutory provisions as unconstitutional:

  1. The general residency requirement (the “residency requirement”)

    The Act provides that any “applicant” for a cannabis business license must be:

    a Rhode Island resident or a business entity with a principal place of business located in Rhode Island … and in which fifty‑one percent (51%) of the equity in the business entity is owned by residents of Rhode Island.
    (R.I. Gen. Laws § 21‑28.11‑3(3); see also § 21‑28.11‑10.2(b)(2).)

    This is a classic in‑state residency/ownership preference.

  2. The “expungable‑offense” social equity qualifier

    One way to qualify as a “social equity applicant” requires that:

    at least fifty‑one percent (51%) ownership and control [be] by one or more individuals who:
    (A) Have been arrested for, convicted of, or adjudicated delinquent for any offense that is eligible for expungement under this chapter; or
    (B) Is a member of an impacted family.
    (Id. § 21‑28.11‑3(39)(ii).)

    A “member of an impacted family” includes persons whose close relatives were arrested, charged, convicted, or adjudicated delinquent for such expungable cannabis offenses. (Id. § 21‑28.11‑3(34).)

    The Act cross‑references Rhode Island’s expungement regime, under which:

    Any person with a prior civil violation, misdemeanor or felony conviction for possession only of a marijuana offense that has been decriminalized … shall be entitled to have the … conviction automatically expunged….
    (Id. § 12‑1.3‑5.)

    Jensen alleges that “only persons with Rhode Island convictions can qualify” through this route; she claims this functions as a residency‑favoring device in violation of the dormant Commerce Clause.

  3. The “disproportionately impacted area” social equity qualifier

    Another path to social equity status requires that:

    at least fifty‑one percent (51%) ownership and control [be] by one or more individuals who have resided for at least five (5) of the preceding ten (10) years in a disproportionately impacted area.
    (Id. § 21‑28.11‑3(39)(i).)

    The Commission must define “disproportionately impacted areas” based on statutory criteria. Some criteria are Rhode‑Island‑relative, such as:

    The area has disproportionately high rates of arrest, conviction, and incarceration related to … cannabis in comparison to other communities and localities in the state.
    (Id. § 21‑28.11‑3(23)(v)(A) (emphasis added).)

    Others are absolute, census‑based metrics (e.g., poverty rate ≥ 20% under the latest federal census, id. § 21‑28.11‑3(23)(i)), which could in theory apply to neighborhoods anywhere in the United States.

    Jensen attacks this “disproportionately impacted area” qualifier both:

    • Under the dormant Commerce Clause (as effectively favoring Rhode Island residents); and
    • Under the Equal Protection Clause (alleging discriminatory treatment, the details of which will be fleshed out on remand).

C. The Plaintiff: A Non‑Resident Cannabis Entrepreneur

Jensen is a citizen and resident of California and describes herself as a “cannabis entrepreneur” who:

  • Has applied for retail cannabis licenses in multiple other states;
  • Has personally served as a “social equity applicant” in one jurisdiction; and
  • Has partnered with another person who qualified as a social equity applicant in another jurisdiction.

She filed a sworn declaration stating that she intends to apply for a Rhode Island retail cannabis license. Because she is not a Rhode Island resident and apparently does not control a Rhode Island‑majority‑owned entity, she contends that the Act’s residency requirement and social equity qualifiers foreclose her from obtaining a license on the face of the statute.

D. Procedural History

The procedural path of the case is central to the First Circuit’s justiciability analysis:

  • May 15, 2024: Jensen sues the Commission and its director, Kimberly Ahern, seeking declaratory and injunctive relief against enforcement of the challenged provisions under the dormant Commerce Clause and Equal Protection Clause.
  • June 10, 2024: She moves for a preliminary injunction and requests a prompt hearing.
  • July 22, 2024: Defendants file:
    • An opposition to the preliminary injunction, addressing merits; and
    • A motion to dismiss, arguing lack of standing and lack of ripeness.

    They do not claim any factual disputes; both sides present the case as suitable for resolution as a matter of law.

  • September 17, 2024: Briefing on both motions is complete; the district court takes no action for nearly five months.
  • January 8, 2025: The Commission releases proposed rules and regulations for “Cannabis Establishment Applications, Licensing and Renewals,” 560 RICR‑10‑10‑1, which track the statutory applicant and social equity definitions.
  • February 6, 2025: Without a hearing, the district court issues a one‑paragraph text order dismissing the case “without prejudice” as not ripe, citing three justiciability decisions but offering no explanatory analysis. It emphasizes that the Commission has not yet promulgated final rules and that the court will not “speculate” about when rules or application windows will materialize.
  • February 7, 2025: Public comment period on the proposed rules closes as scheduled.
  • Appeal: Jensen timely appeals to the First Circuit.
  • May 1, 2025: While the appeal is pending, the Commission adopts final rules and regulations. These:
    • Incorporate the Act’s definition of “Applicant,” including the residency requirement (560 RICR‑10‑10‑1 § 1.2(A)(2)); and
    • Incorporate the statutory definition of “social equity applicant,” including the challenged expungement‑eligible offense and disproportionately impacted area qualifiers (§ 1.2(A)(3)).

    The relevant definitions are unchanged from the proposed to the final regulations.

  • On appeal:
    • Defendants now argue the case is moot (because final rules exist), that the district court was correct on ripeness at the time, and that Jensen lacks standing.
    • Jensen disputes all three propositions.

The First Circuit consolidates this appeal conceptually with a companion case, Kenney v. Rhode Island Cannabis Control Commission (No. 25‑1173), which presents a similar dormant Commerce Clause challenge and was also dismissed below as unripe. A separate opinion in Kenney issues the same day.

III. Summary of the Opinion

Judge Lynch, writing for a unanimous panel (Gelpí, Lynch, and Howard, JJ.), reverses the district court’s dismissal and remands with instructions.

The core holdings are:

  1. Ripeness: Jensen’s facial challenges to the Act’s residency and social equity provisions were ripe when filed and remain ripe. The absence of final regulations or an open application window did not render the dispute premature.
  2. Mootness: The subsequent promulgation of final regulations does not moot the appeal; the mootness argument is “entirely dependent on the correctness” of the district court’s ripeness ruling and fails for the same reasons.
  3. Standing: Jensen has Article III standing:
    • She faces a concrete, imminent injury in fact – exclusion from eligibility – grounded in the text of the statute itself;
    • The injury is fairly traceable to the defendants’ enforcement of the Act; and
    • The injury is redressable by declaratory and injunctive relief.

    She is “able and ready” to apply for a license without having to undertake futile, costly steps such as purchasing or leasing real estate, securing zoning approval, and developing detailed plans under 560 RICR‑10‑10‑1 § 1.3.1.

  4. Remand directives: The court instructs the district court to:
    • Promptly consider and resolve the merits of Jensen’s dormant Commerce Clause and Equal Protection claims; and
    • Enter rulings on both merits and remedies (including possible declaratory and injunctive relief) at least forty‑five days before the Commission plans to issue retail licenses.

The opinion underscores that the district court’s erroneous reliance on ripeness has “delayed the consideration of the merits of these serious challenges” and potentially complicated the design and timing of the state’s cannabis licensing program.

IV. Detailed Analysis

A. Precedents and Doctrinal Framework

1. Ripeness and Justiciability Cases

The First Circuit situates its ripeness analysis within the familiar two‑prong framework of “fitness” and “hardship,” a structure drawn from longstanding federal practice and reflected in its own precedents.

  • Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014) and MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007):
    • These Supreme Court decisions emphasize that standing and ripeness often collapse into the same inquiry: whether there is a sufficiently concrete threat of injury to warrant judicial intervention.
    • The First Circuit quotes Susan B. Anthony List for the proposition that standing and ripeness can “boil down to the same question.”
  • Ernst & Young v. Depositors Economic Protection Corp., 45 F.3d 530 (1st Cir. 1995):
    • Cited by the district court but distinguished by the First Circuit.
    • There, a constitutional challenge was unripe because injury depended on a long chain of speculative future events, including outcomes of pending and future litigation – a classic example of contingent harm.
    • Jensen contrasts sharply because Jensen’s exclusion flows directly and immediately from the statute’s text.
  • McInnis-Misenor v. Maine Medical Center, 319 F.3d 63 (1st Cir. 2003):
    • Another case the district court cited but the panel finds distinguishable.
    • There, ripeness failed because the alleged ADA violation depended on contingencies (e.g., health status, future interactions with the facility) that “may or may not happen.”
  • Operation Clean Government v. Rhode Island Ethics Commission, 315 F. Supp. 2d 187 (D.R.I. 2004):
    • A non‑binding district court case the trial judge relied upon. It held a challenge unripe for lack of a “concrete factual situation” and because the alleged injury was dependent on “so many different factual contingencies that it may never occur.”
    • The First Circuit notes that Operation Clean Government cannot override controlling Supreme Court and First Circuit doctrine and is in any event inapposite: in Jensen, the claim is tied to a specific statute whose application to the plaintiff is clear.
  • Rhode Island v. Narragansett Indian Tribe, 19 F.3d 685 (1st Cir. 1994):
    • Provides the standard that ripeness is satisfied where the parties have “adverse legal interests[] of sufficient immediacy and reality.”
    • Also stands for the principle that a litigant need not “await the consummation of threatened injury” if the injury is “certainly impending.”
    • The First Circuit applies this logic directly to Jensen’s pre‑enforcement challenge.
  • Algonquin Gas Transmission, LLC v. Weymouth, 919 F.3d 54 (1st Cir. 2019); Roman Catholic Bishop of Springfield v. City of Springfield, 724 F.3d 78 (1st Cir. 2013); Riva v. Massachusetts, 61 F.3d 1003 (1st Cir. 1995):
    • These cases collectively underscore that a facial constitutional challenge to a statute is typically fit for review when it raises primarily legal questions and no further factual development is necessary.
    • Jensen’s claims fit this mold: she challenges the facial validity of statutory definitions that unambiguously apply to her.
  • Retail Industry Leaders Ass’n v. Fielder, 475 F.3d 180 (4th Cir. 2007):
    • A Fourth Circuit decision the First Circuit cites approvingly.
    • In Fielder, the court held pre‑enforcement challenges ripe even before regulations issued, emphasizing the practical need for regulated entities to plan and prepare in light of a statute’s requirements.
    • Jensen uses this case to bolster the “hardship” prong: delaying judicial review would impose real planning and compliance costs on businesses like Jensen’s and could destabilize the licensing system if invalidation comes after licenses are issued.
  • Trump v. New York, 592 U.S. 125 (2020) and Susan B. Anthony List (again):
    • The First Circuit notes that parties dispute whether the “hardship” prong of ripeness analysis survives in full force post‑Susan B. Anthony List and Trump, but declines to resolve that question because the hardship prong is clearly satisfied under any formulation.

2. Standing and “Able and Ready” Doctrine

The standing analysis draws from a line of Supreme Court decisions concerning challenges to allegedly discriminatory regimes (often in public contracting or admissions), where the main injury is the inability to compete on equal terms, not necessarily the loss of a specific contract or seat.

  • Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) and Spokeo, Inc. v. Robins, 578 U.S. 330 (2016):
    • Provide the classic three‑part standing test: injury‑in‑fact, traceability, and redressability.
    • Injury‑in‑fact must be “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.”
  • Reddy v. Foster, 845 F.3d 493 (1st Cir. 2017):
    • A First Circuit decision stressing that injury must be “actual or imminent” and anchoring the court’s analysis in pre‑enforcement contexts.
  • Northeastern Florida Chapter of the Associated General Contractors of America v. Jacksonville, 508 U.S. 656 (1993):
    • In the context of a set‑aside program for minority‑owned contractors, the Court held that the injury is the lost opportunity to compete on equal footing, not the failure to win a particular contract.
    • A plaintiff can satisfy standing by showing that they are “able and ready to bid” and are prevented from doing so on equal terms.
  • Gratz v. Bollinger, 539 U.S. 244 (2003):
    • Applies the “able and ready” standard to university admissions: a non‑minority student challenging race‑conscious admissions policies does not need to re‑apply repeatedly if the policy makes admission futile.
  • Carney v. Adams, 592 U.S. 53 (2020):
    • Clarifies the “able and ready” doctrine in a challenge to Delaware’s judicial appointment structure.
    • The Court found that the plaintiff lacked standing because he could not show he was actually willing and realistically prepared to apply for a judgeship (never applied, lacked knowledge of how, had only recently emerged from retirement to support the lawsuit).
    • But Carney also reaffirmed that a plaintiff “need not translate his or her desire into a formal application” where such an application would be a “futile gesture” in light of the challenged rule – quoting International Brotherhood of Teamsters.
  • International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977):
    • In a Title VII employment discrimination case, the Court held that non‑white employees who did not apply for discriminatorily restricted positions could still recover if they could show they would have applied but for the employer’s discriminatory policy.
    • It is enough that they were deterred from pursuing an obviously futile effort.
  • National Organization for Women, Inc. v. Scheidler, 510 U.S. 249 (1994) and Singleton v. Wulff, 428 U.S. 106 (1976):
    • Reinforce that standing is a jurisdictional question open to review at every stage, and that courts of appeals may decide standing issues not resolved below.
    • The First Circuit relies on this authority to address standing for the first time on appeal.

3. Cannabis‑Specific Dormant Commerce Clause Context

Although the merits are not resolved, the panel opens by flagging that such residency and social equity constraints on cannabis licensing have already been found unconstitutional by other circuits:

  • Northeast Patients Group v. United Cannabis Patients & Caregivers of Maine, 45 F.4th 542 (1st Cir. 2022):
    • The First Circuit previously invalidated Maine’s in‑state ownership requirement for medical cannabis dispensaries under the dormant Commerce Clause.
    • This context underscores that Jensen’s underlying claims are legally serious and not frivolous.
  • Variscite NY Four, LLC v. New York State Cannabis Control Board, 152 F.4th 47 (2d Cir. 2025) (as described in the opinion):
    • The Second Circuit invalidated New York’s recreational cannabis retail licensing requirements – including social equity criteria – under the dormant Commerce Clause.

While Jensen does not reach the substance of the dormant Commerce Clause or Equal Protection claims, these citations highlight both the stakes and the likelihood of serious constitutional questions about state efforts to reserve cannabis market opportunities for residents or specific in‑state populations.

B. The Court’s Legal Reasoning

1. Ripeness: Fitness and Hardship

a. Fitness: No Speculative Chain of Contingencies

On fitness, the court distinguishes between:

  • Cases where injury depends on multiple uncertain, contingent events (like Ernst & Young and McInnis‑Misenor); versus
  • Cases like Jensen, where the plaintiff’s exclusion arises directly from the statute’s text.

Jensen’s alleged injury is straightforward:

  • She is a non‑resident who wishes to apply for a retail cannabis license.
  • The statute on its face restricts eligibility to Rhode Island residents or entities that are majority Rhode‑Island‑owned.
  • The statutory social equity definitions similarly embed criteria that, she claims, prefer Rhode Island residents.
  • The Commission cannot lawfully adopt regulations that “undo” the statute; as the Rhode Island Supreme Court has said, agencies are “a product of the enabling legislation that creates them.” (In re Advisory Opinion to the Governor, 627 A.2d 1246, 1248 (R.I. 1993).)

Thus:

Because Jensen must be excluded from obtaining a retail license under any scheme implemented by defendants under the Act, the parties clearly have “adverse legal interests[] of sufficient immediacy and reality” to find Jensen’s claim ripe.

This directly invokes the Narragansett and Maryland Casualty test for justiciability: the dispute is real, not abstract; there is a live controversy about whether Rhode Island may lawfully bar her from even competing for a license.

b. Prudential Fitness: Purely Legal, Facial Challenges

The prudential component – often phrased as whether the issue is “purely legal” and not dependent on further factual development – is also satisfied. Jensen’s case is a paradigmatic facial challenge:

  • She attacks specific statutory text (residency requirement; social equity qualifiers) as unconstitutional under the dormant Commerce Clause and Equal Protection Clause.
  • The application of these provisions to her is not speculative.
  • No additional facts about how the Commission structures its application process, or what other applicants might do, are necessary to resolve the core legal questions.

The First Circuit cites:

  • Algonquin Gas: Ripeness satisfied where a dispute turns on “legal issues not likely to be significantly affected by further factual development.”
  • Roman Catholic Bishop: Challenges to the “existence” of an ordinance itself are ripe where no further factual development is needed.
  • Riva: A challenge to a statute with future impact is ripe where its application is relatively certain and the legal questions are pure.

Jensen’s claims neatly match this pattern.

c. Hardship: Compliance Costs and Systemic Disruption

For hardship, the court asks whether judicial intervention would be of “practical assistance” in resolving the controversy and preventing real‑world harms.

Two forms of hardship are identified:

  1. Hardship to Jensen

    Preparing a high‑stakes cannabis retail application is neither trivial nor costless. The regulations require, among other things:

    • Lease or purchase of compliant premises;
    • Obtaining full zoning approval;
    • Detailed business plans regarding safety, security, and operations;
    • Comprehensive background checks and disclosures.

    Forcing Jensen to expend vast sums and time on an application that is “doomed” under the facial residency bar would be precisely the sort of needless hardship that ripeness doctrine is designed to avoid. As the court observes, it is not consistent with Narragansett or general pre‑enforcement jurisprudence to require a party to undergo substantial, futile compliance efforts just to have standing to challenge the barrier itself.

  2. Systemic hardship to the state and other stakeholders

    The court also emphasizes the institutional and market disruption that would occur if licenses are awarded under a scheme later declared unconstitutional:

    • Courts would face “considerable remedial issues,” including whether and how to unwind existing licenses, whether to expand the number of licenses, or how to re‑run competitions.
    • Equitable considerations would arise regarding incumbents who invested heavily in reliance on the statutory scheme.
    • The Commission, the director, and other applicants thus share an interest in early clarity on the constitutional validity of the licensing criteria.

These considerations dovetail with the Fourth Circuit’s rationale in Fielder, where regulated entities needed to make near‑term decisions in light of a new statute, even before regulations were finalized. In both cases, postponing judicial review would:

  • Force parties into “guesswork” about whether heavy compliance expenditures will be wasted; and
  • Risk greater disruption if constitutional invalidation occurs after the regulatory regime is operational.

2. Mootness

Defendants argued that once the Commission promulgated final regulations, Jensen’s appeal from a pre‑regulatory ripeness dismissal became moot. The First Circuit rejects this argument summarily, reasoning that:

  • The mootness argument is “entirely dependent on the correctness of the district court’s ripeness ruling.”
  • Because ripeness existed all along (and still exists), the case presents a live controversy.
  • The statutes remain on the books; the regulations merely incorporate the contested definitions.

In essence, final regulations confirm – rather than eliminate – the controversy. They adopt the challenged statutory definitions of “Applicant” and “social equity applicant” without modification. There is still an ongoing threat of enforcement, and Jensen continues to be blocked from eligibility.

3. Standing: Injury‑in‑Fact and Futility

The key standing dispute centers on whether Jensen has suffered – or imminently will suffer – a concrete injury‑in‑fact without having undertaken the full suite of preparatory steps required to file a formal license application.

a. The State’s “Not Able and Ready” Argument

Defendants urged that Jensen is not “able and ready” to apply for a license, because she has not yet:

  • Acquired or leased suitable real estate with zoning approvals;
  • Completed background checks;
  • Prepared detailed business and security plans; or
  • Otherwise satisfied the extensive documentary requirements of 560 RICR‑10‑10‑1 § 1.3.1.

They analogized to Carney v. Adams, where the Supreme Court held that a would‑be judicial applicant lacked standing because he had not demonstrated a genuine readiness to apply under the challenged regime.

b. The Court’s Response: Futile Application Not Required

The First Circuit rejects this argument, grounding its reasoning in Jacksonville, Gratz, Carney, and Teamsters:

  • Nature of the injury:
    • The injury in such cases is the inability to compete on equal terms for a government benefit (here, a license), not necessarily denial of the benefit itself.
    • Jensen alleges that the statutory scheme categorically disqualifies her from obtaining a license because she is not a Rhode Island resident or a Rhode‑Island‑majority‑owned applicant.
  • No need for “futile gestures”:
    • Citing Teamsters, the court stresses that a plaintiff need not “engage in … futile gesture[s]” – such as applying for a job (or, here, a license) that the challenged rules plainly make unavailable.
    • Carney reaffirms that a plaintiff is not required to file a formal application “where that application would be merely a ‘futile gesture.’”

On these facts:

  • Jensen has credibly declared her intent to apply for a Rhode Island license.
  • She has a track record of applying for retail cannabis licenses elsewhere, including in social equity roles.
  • Her ineligibility stems directly from a statutory rule that speaks in categorical terms about who may be an “applicant.”

Therefore, she is “able and ready” within the meaning of Jacksonville, Gratz, and Carney, and she suffers an injury‑in‑fact by being excluded from the competitive process on unequal terms. There is no requirement that she first invest in real estate, business plans, and other expensive steps to perfect an application that will be rejected on residency grounds.

C. Distinguishing Carney v. Adams

The opinion emphasizes that Carney is “highly fact‑specific” and unfavorable only to plaintiffs who appear litigation‑driven but not genuinely prepared to seek the underlying benefit. In Carney:

  • The plaintiff had never applied for a judgeship,
  • Had little understanding of the process, and
  • Seemed to have emerged from retirement primarily to support an academic critique of Delaware’s system.

By contrast, Jensen:

  • Is already operating within the cannabis industry;
  • Has applied for and participated in social equity programs in other states; and
  • Articulates a clear intent to participate in Rhode Island’s licensing process but for the statutory bars.

These factual differences are critical. The First Circuit effectively reads Carney as:

  • Reinforcing the need for a good‑faith, realistic intention to seek the benefit; but
  • Not imposing any requirement that plaintiffs incur heavy, irreversible costs before obtaining standing where a challenge is facially directed to an eligibility barrier.

4. The Court’s Management Directive: Timely Merits Review

The panel expresses concern that the district court’s erroneous ripeness dismissal has already delayed consideration of the merits in a time‑sensitive regulatory context. To mitigate further disruption, the First Circuit takes an unusually directive approach:

We instruct the district court to issue its rulings on both merits and remedies at least forty‑five days before the date on which the [Commission] intends to issue retail licenses pursuant to the Act.

This instruction has several notable implications:

  • It recognizes that timing is a substantive concern in licensing disputes: the closer a constitutional ruling comes to license issuance, the more disruptive the remedy.
  • It signals to district courts in the First Circuit that justiciability doctrines should not be used to postpone systemic constitutional challenges in regulated markets, particularly where statutory criteria are facially exclusionary.
  • It sets a practical benchmark – 45 days – for resolving merits in similar licensing regimes, though formally limited to this case.

V. Impact and Implications

A. For Cannabis Regulation and Social Equity Programs

In the cannabis context, Jensen is important even though it does not decide the dormant Commerce Clause or Equal Protection questions:

  • Pre‑enforcement access to federal courts:
    • Out‑of‑state entrepreneurs and investors who are facially excluded by residency requirements or other in‑state favoritism provisions may bring federal challenges as soon as the statute is in force.
    • They are not required to wait for final regulations, application windows, or actual denials.
  • Limitations on residency‑based protectionism:
    • Jensen, combined with Ne. Patients Group and Variscite, signals a strong judicial skepticism of residency‑ or state‑specific social equity criteria that effectively wall off cannabis markets from interstate participation.
    • While states may have powerful policy reasons to favor communities disproportionately harmed by past cannabis enforcement, they must design programs that do not discriminate against out‑of‑state economic actors without valid congressional authorization.
  • Stability of licensing regimes:
    • By requiring early merits decisions, the First Circuit seeks to avert the chaos that would result if a licensing regime is later found unconstitutional after licenses have been awarded and businesses have launched.
    • This encourages states and courts to front‑load constitutional review when crafting or implementing novel market‑entry regimes.

On remand, if the district court – and perhaps later the First Circuit again – concludes that Rhode Island’s residency or social equity provisions violate the dormant Commerce Clause or Equal Protection, the state will face difficult recalibration questions:

  • Whether to broaden eligibility and invite more interstate capital and participants; or
  • How to redesign social equity criteria so that they target legitimate remedial goals (e.g., poverty, prior cannabis enforcement impact) without functioning as covert tools of local protectionism.

B. For Pre‑Enforcement Constitutional Litigation Generally

Beyond the cannabis industry, the decision has broader ramifications for how federal courts in the First Circuit treat pre‑enforcement facial challenges to economic regulations:

  • When regulations are not yet finalized:
    • Jensen makes clear that the absence of implementing regulations or a formal application process is not a bar to ripeness when:
      • The statute itself imposes the challenged eligibility criteria; and
      • The agency has no authority to deviate from those statutory constraints.
    • This principle would apply to any licensing or permitting program where the legislature, not the agency, sets the core exclusionary rules.
  • Standing without sunk costs:
    • The opinion reinforces that litigants do not need to turn their interest into a full, costly application to challenge facial barriers.
    • It explicitly recognizes compliance costs as part of the hardship analysis and as relevant to injury‑in‑fact, particularly when such costs would be entirely wasted.
  • Judicial management in time‑sensitive regimes:
    • Directives like the 45‑day timing requirement may influence how district courts handle similar suits in areas such as:
      • Gaming licenses,
      • Telecommunications spectrum auctions,
      • Healthcare facility certificates of need, or
      • Other scarce‑resource licensing regimes.
    • Courts may feel increased pressure to prioritize constitutional challenges that could affect entire markets if left unresolved until after rollout.

C. For Dormant Commerce Clause and Equal Protection Jurisprudence

Although Jensen is purely a justiciability decision, it contributes to a budding line of cases scrutinizing:

  • State attempts to cabin new economic opportunities to residents – especially where states argue that federal prohibitions (e.g., on cannabis) somehow suspend dormant Commerce Clause protections; and
  • Social equity programs that distribute benefits based on geography, criminal history, or family impact – raising complex issues under both the dormant Commerce Clause and Equal Protection Clause.

The opinion’s early reference to Ne. Patients Group and Variscite underscores that appellate courts are prepared to treat cannabis markets as subject to the same interstate commerce principles that apply elsewhere, despite ongoing federal illegality. That stance, once controversial, is increasingly entrenched.

VI. Clarifying Key Legal Concepts

1. Dormant Commerce Clause

The Commerce Clause gives Congress the power to regulate interstate commerce. The “dormant” Commerce Clause is a judge‑made doctrine that infers from this grant a negative limitation on states: even when Congress has not legislated, states may not:

  • Discriminate against out‑of‑state economic actors; or
  • Impose undue burdens on interstate commerce.

Residency requirements and local‑ownership mandates that prefer in‑state businesses are paradigmatic triggers for dormant Commerce Clause scrutiny. Courts typically apply:

  • Strict scrutiny to facially discriminatory provisions (i.e., they are presumptively invalid and must be narrowly tailored to a legitimate local purpose that cannot be achieved by non‑discriminatory alternatives); or
  • A balancing test for facially neutral but burdensome regulations.

In the cannabis arena, this doctrine has been used to invalidate in‑state ownership and residency requirements, as in Ne. Patients Group and Variscite.

2. Equal Protection Clause

The Equal Protection Clause of the Fourteenth Amendment requires that similarly situated persons be treated alike by the state unless differential treatment is justified under applicable levels of scrutiny (strict, intermediate, or rational basis, depending on the classification).

Challenges to social equity programs may raise issues such as:

  • Whether the program draws suspect classifications (race, national origin) or non‑suspect ones (geography, economic status);
  • What level of scrutiny applies; and
  • Whether the criteria are reasonably related to remedial or legitimate state objectives.

In Jensen, the Equal Protection challenge targets the “disproportionately impacted area” criterion. The details of that argument are not resolved in this opinion; they will be addressed on remand.

3. Facial vs. As‑Applied Challenges

  • A facial challenge argues that a law is unconstitutional “on its face” – that is, in all or almost all of its applications, due to the text itself. Jensen’s attack on the residency requirement and social equity definitions is facial: the text itself excludes her.
  • An as‑applied challenge concedes that a law might be valid in general but claims that its application to a particular person or circumstance is unconstitutional.

Facial challenges often are ripe earlier because they do not depend on detailed facts about how the law is enforced in practice.

4. Standing: Injury‑in‑Fact and “Able and Ready”

To have standing in federal court, a plaintiff must show:

  1. Injury‑in‑fact: a concrete, particularized, actual or imminent harm;
  2. Traceability: the injury is fairly traceable to the defendant’s conduct; and
  3. Redressability: the court can remedy the injury with a favorable ruling.

In equal protection or similar structural challenges, the central injury is often the inability to compete equally. The “able and ready” doctrine requires plaintiffs to show:

  • They have a genuine intention to seek the benefit (e.g., a contract, admission, license); and
  • They are realistically in a position to apply, but for the challenged barrier.

However, they do not need to file a formal application – or incur large costs – if such an application would be a futile gesture. This is the crux of Jensen’s standing holding.

5. Ripeness and Mootness

  • Ripeness asks whether a dispute is premature – whether the alleged harm may never occur or needs further factual development.
  • Mootness asks whether a dispute has become too late – whether there is no longer a live controversy because circumstances have changed.

In Jensen:

  • Ripeness is satisfied because the statute already operates to exclude Jensen; final regulations and application windows are not necessary to define the dispute.
  • Mootness is rejected because final regulations do not eliminate the harm; they confirm the Commission will enforce the same contested statutory definitions.

VII. Conclusion

Jensen v. Rhode Island Cannabis Control Commission is a significant, though carefully cabined, decision in the evolving law of cannabis regulation and constitutional litigation. Its principal contributions are:

  • Pre‑enforcement ripeness: Facial challenges to statutory residency and social equity barriers in licensing regimes are ripe even before regulations are finalized or application windows open, when the statute itself clearly excludes the plaintiff.
  • Standing without futile expense: A would‑be applicant who is genuinely “able and ready” to apply for a license need not invest substantial capital in a futile application in order to establish injury‑in‑fact.
  • Judicial management in time‑sensitive markets: Appellate courts may direct district courts to resolve merits and remedies on an accelerated schedule when constitutional challenges implicate the structure of a nascent licensing market.

While the dormant Commerce Clause and Equal Protection merits remain undecided, the opinion firmly opens the courthouse door to those challenges and signals an expectation of prompt, careful adjudication. For states designing cannabis and other economic licensing regimes, Jensen is a clear reminder that:

  • Facial preferences for residents or in‑state criteria will draw scrutiny under the dormant Commerce Clause;
  • Social equity goals must be pursued in constitutionally sound ways; and
  • Attempts to delay judicial review by invoking ripeness or requiring costly, futile applications are unlikely to succeed where statutory text itself creates the barrier.

In the broader constitutional landscape, Jensen reinforces the principle that Article III does not require litigants to suffer needless, avoidable harms before challenging facially exclusionary laws. When a statute clearly blocks access to a government benefit, and a plaintiff is ready to seek that benefit, federal courts are open to hear the case – even before the first license is issued.

Case Details

Year: 2025
Court: Court of Appeals for the First Circuit

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