One of the most conservative U.S. Supreme Court justices on Monday denounced the federal government’s inconsistent approach to marijuana policy, suggesting that outright national prohibition may be unconstitutional.
While the court declined to take up a new case related to an Internal Revenue Service (IRS) investigation into tax deductions claimed by a Colorado marijuana dispensary, Justice Clarence Thomas issued a statement that more broadly addressed the federal-state marijuana disconnect.
He specifically discussed a 2005 ruling in Gonzales v. Raich, wherein the court narrowly determined that the federal government could enforce prohibition against cannabis cultivation that took place wholly within California based on its authority to regulate interstate commerce.
“Whatever the merits of Raich when it was decided, federal policies of the past 16 years have greatly undermined its reasoning,” Thomas wrote. “Once comprehensive, the Federal Government’s current approach is a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana.”
“This contradictory and unstable state of affairs strains basic principles of federalism and conceals traps for the unwary,” he said, adding that “though federal law still flatly forbids the intrastate possession, cultivation, or distribution of marijuana…the Government, post-Raich, has sent mixed signals on its views.”
Case in point: the Justice Department under President Barack Obama twice issued memorandums signaling that the government would tolerate certain marijuana-related activity if it’s lawful in the state where it took place. The so-called Cole memo laid out enforcement priorities for federal prosecutors, signaling that low-level cannabis offenses shouldn’t be pursued.
Further, Thomas noted, Congress has repeatedly approved a spending bill rider that prohibits the Justice Department from using its funds to interfere in the implementation of state-level medical marijuana programs.
“Given all these developments, one can certainly understand why an ordinary person might think that the Federal Government has retreated from its once-absolute ban on marijuana,” he wrote. “One can also perhaps understand why business owners in Colorado…may think that their intrastate marijuana operations will be treated like any other enterprise that is legal under state law.”
While Thomas’s five-page statement itself won’t resolve the problem, it’s remarkable to see a Supreme Court justice—a very conservative one at that—make such a thorough and forceful criticism of federal cannabis policy. In the case at hand, petitioners were seeking to prevent IRS from requiring disclosures of tax deductions that it made for its medical marijuana dispensary business expenses.
“In other words, petitioners have found that the Government’s willingness to often look the other way on marijuana is more episodic than coherent,” Thomas said. “This disjuncture between the Government’s recent laissez-faire policies on marijuana and the actual operation of specific laws is not limited to the tax context.”
The justice also flagged a related consequence of federal prohibition, noting that many state-legal cannabis businesses operate on a largely cash-only basis because of restrictions on using federally backed financial institutions for dealing in a controlled substance. That makes those businesses “understandably enticing to burglars and robbers.”
That’s also a main argument in favor of a congressional bill—the Secure and Fair Enforcement (SAFE) Banking Act—that would protect banks that service state-legal marijuana businesses from being penalized by federal regulators. It’s already passed the House this Congress and may be incorporated into a federal legalization bill that’s being drafted in the Senate.
“I could go on. Suffice it to say, the Federal Government’s current approach to marijuana bears little resemblance to the watertight nationwide prohibition that a closely divided Court found necessary to justify the Government’s blanket prohibition in Raich,” Thomas wrote. “If the Government is now content to allow States to act ‘as laboratories’ ‘and try novel social and economic experiments,’…then it might no longer have authority to intrude on ‘[t]he States’ core police powers…to define criminal law and to protect the health, safety, and welfare of their citizens.'”
“A prohibition on intrastate use or cultivation of marijuana may no longer be necessary or proper to support the Federal Government’s piecemeal approach,” the justice concluded.
Though not actionable, advocates view the statement as a welcome recognition of an issue that has rarely been directly addressed by the high court. Last year, justices declined to hear a case challenging the constitutionality of federal marijuana prohibition.
In contrast, Mexico’s Supreme Court in 2018 declared the criminalizing people for personal possession and cultivation of cannabis is unconstitutional and ordered lawmakers to enact a policy change. The body is expected to vote on nullifying prohibition itself on Monday after legislators were unable to legalize by its deadline.