Clarence Thomas Suggests Fed. Cannabis Laws May Be Unconstitutional

Judge Clarence Thomas disagreed with the Supreme Court’s denial of certiorari – that’s a refusal to hear a tax case on Monday, and the Conservative judge’s statement strongly suggests that he believes a state marijuana ban is unconstitutional.

The case is Standing Akimbo, LLC v. The United States, in which the owners of a marijuana dispensary in Colorado appealed an unfavorable tax decision that treated them differently from other business owners. The Internal Revenue Code does not allow any tax deduction or credit for expenses incurred by companies whose business model is “trading in controlled substances” in violation of federal or state law. Although marijuana is legal for both medical and recreational use in many states, it remains a controlled substance under federal law. As a result, marijuana dealers are denied tax breaks that other businesses would have.

Thomas began his statement disagreeing with the court’s refusal to hear the case, noting that the legal landscape regarding marijuana had changed dramatically over the past 16 years. In 2005, the Court of Justice ruled in Gonzales v Raich that Congress could ban the cultivation and use of marijuana – even if done entirely within a state’s borders – to avoid having a “gaping hole” in the “closed” Regulatory System ”of the Congress is created. However, since then, many states have legalized both the medicinal and recreational use of cannabis.

The result is that the federal government now has a “half-in, half-out” regime called Judge Thomas that both tolerates and prohibits the local use of marijuana.

“This contradicting and unstable state of affairs,” warned Thomas, “strains the basic principles of federalism and hides traps for the unwary.”

The judiciary went on to explain how the federal government has consistently sent “mixed signals about its views” on marijuana. On the one hand, federal law “still prohibits domestic possession, cultivation or distribution of marijuana,” but on the other hand the Justice Department has issued several memoranda outlining its policy against intrusion into state law or prosecution on the matter. In addition, in 2009, Congress specifically allowed Washington DC to decriminalize medical marijuana; In 2015, Congress specifically prohibited the DOJ from spending money that would prevent states from implementing their own medical marijuana laws.

The apparently milder stance of the federal government towards marijuana, the judiciary explained, led to foreseeable misunderstandings. The Colorado pharmacy owner’s petitioners understandably thought that “their domestic marijuana operations will be treated like any other business legal under state law,” the judiciary said.

However, according to the relevant section of the Internal Revenue Code, that doesn’t quite work. “Under that rule,” continued Thomas, “a company that is still in the red after paying its workers and turning the lights on could still owe substantial federal income taxes.”

The judiciary then went a step further, noting that the “disjunction between the government’s recent laissez-faire policies on marijuana and the actual application of certain laws is not confined to the tax context”. Thomas went on to explain that many marijuana-related companies only use cash to circumvent federal laws that prohibit banks from doing business with them. This reality then leads to even more unfair results.

Since cash businesses are vulnerable to robbery and break-ins, their operators often hire armed guards. However, those owners and guards could be on the wrong side of a federal drug trafficking charge or a civil lawsuit over the Racketeer Influenced and Corrupt Organizations Act.

All of these realities, argues Judge Thomas, threaten the very core of federalism.

“If the government is now content with allowing states to function ‘as laboratories’,” he warned, “then it may no longer have the authority to ‘break into’.[t]The central police powers of the states. . . Define criminal law and protect the health, safety and wellbeing of its citizens. ‘”

Legal experts were quick to take note of Thomas’ testimony as a harbinger of the impending demise of the federal agency regulating marijuana.

Mark Joseph Stern of Slate commented that the federal government’s policy of “allowing states to operate robust marijuana markets” has the effect of[ing] its constitutional authority to uphold its supposed ban [on marijuana]. “

Thomas’ bottom line is that when SCOTUS upheld the federal marijuana ban in Raich, the federal government was actually banning weed. Now the government is letting states operate robust marijuana markets, undermining their constitutional authority to uphold their supposed ban.

– Mark Joseph Stern (@mjs_DC) June 28, 2021

Law professor Elizabeth Joh also noted the judiciary’s suggestion that federal marijuana laws may violate the government’s constitutional authority.

Judge Thomas has THOUGHTS about federal marijuana laws – as if they were unconstitutional 😳 pic.twitter.com/Mo7w8yQCnt

– Elizabeth Joh (@elizabeth_joh) June 28, 2021

Joseph Bondy, a defense attorney for Lev Parnas and a cannabis law expert on the board of the National Organization for the Reform of Marijuana Laws (NORML), said in a telephone interview with Law & Crime that Thomas’ point of view was “perfectly correct”. Bondy predicted that with the growing trend towards legalizing cannabis at the state level, the argument that the federal prosecution of cannabis crimes is unfair will continue and is likely to resonate.

“It’s just no longer tenable,” said Bondy, explaining that the federal government is keeping marijuana illegal while allowing the multi-billion dollar cannabis industry to exist.

Bondy pointed out that while Thomas’ testimony of the court’s refusal of certiorari could be a warning sign, it does not even achieve the legal significance of a dissenting opinion. In other words, it’s so low on the legal totem pole that it’s unlikely to have any real impact. Still, he noted, such a statement from Clarence Thomas sends “a message that may soften the views of some people in Congress” as well as “one of our Republican senators.”

Under the so-called “Rule of Four,” not even the required number of four judges were willing to use the Standing Akimbo case as a vehicle to repeal federal marijuana laws. Regardless, the court will almost certainly have other options to do this in future cases. With Justice Thomas being a potential ally in the fight against the federal agency regulating cannabis, other challenges are sure to arise in the near future – possibly citing Thomas’ testimony as evidence that their case should continue.

[image via Chip Somodevilla/Getty Images]

Do you have a tip we should know? [email protected]