Garret Donahue

Garret Donahue

Web, Media Manager

It Appears The Decriminalization of Marijuana is Inevitable, Even According to Supreme Court Justices

U.S. Supreme Court Justice Clarence Thomas,

one of the court’s most notoriously conservative justices, has issued a surprising statement concerning the Federal Government’s ongoing prohibition on marijuana.

His statement was issued in conjunction with a denial of a writ of certiorari in the matter of Standing Akimbo LLC v. United States, which asked the court to address whether a medical marijuana dispensary could properly deduct ordinary business expenses in violation of section 280E of the federal tax code. 

In this climate, Justice Thomas asks:

If it's now reasonable for an ordinary person to think that the Federal Government "has retreated from its once absolute ban on marijuana,"

…and for cannabis business owners to think "that their intrastate marijuana operations will be treated like any other enterprise that is legal under state law." However, he points out, that "legality under state law and the absence of federal criminal enforcement do not ensure equal treatment." He describes the federal government's willingness to look the other way as "more episodic than coherent." 

Justice Thomas’ statement acknowledges that the reasoning behind the U.S. Supreme Court’s 2005 decision in Gonzales v. Raich - which held that the power of Congress to regulate interstate commerce authorizes it to prohibit the local cultivation and use of marijuana - has been greatly undermined by federal policies in the past 16 years. He called into question the “piecemeal” approach of the federal government to try to control what is happening with marijuana within a state’s borders and went on to highlight that the current situation is a “contradictory and unstable state of affairs,” and that the current legal landscape “strains basic principles of federalism and conceals traps for the unwary.” 

As an example of a potential “trap,” Thomas points out that “many marijuana-related businesses operate entirely in cash because federal law prohibits certain financial institutions from knowingly accepting deposits from or providing other bank services to businesses that violate federal law. Cash-based operations are understandably enticing to burglars and robbers. But, if marijuana-related businesses, in recognition of this, hire armed guards for protections, the owners and the guards might run afoul of a federal law that imposes harsh penalties for using a firearm in furtherance of a drug trafficking crime.” Thomas also went on to mention how merely having both marijuana and a firearm could lead to a person “find[ing] himself a federal felon." 

This inherent confusion is exactly the issue for Thomas, who’s clear rebuke of the Federal Government’s marijuana policy highlights the country’s overall need for uniformity. For Thomas, it is also consistent with his decades-long effort to limit congressional authority, calling into question the federal prohibition itself by stating that the “prohibition on interstate use or cultivation of marijuana may no longer be necessary or proper to support the Federal Government’s piecemeal approach.” Additionally, he notes, while the "Court has carefully avoided stripping Congress of its ability to regulate interstate commerce, it has casually allowed the Federal Government to regulate intrastate commerce." In other words,

Thomas suggests that "mere drug possession" and "a host of [noncommercial] activities" could be outside the scope of congressional authority to regulate." 

While Thomas' line of reasoning is based on the notion that federal legislation needs to be limited as it relates to activity that stays within a state's borders, its implications only further illustrate the inevitable path toward the decriminalization of marijuana. 

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