Justice Thomas rightly questions federal marijuana authority – Orange County Register

Last week the US Supreme Court ruled not to hear an appeal from the owners of a marijuana company in Colorado, not because they did not have a good case, but because they did.

We know this because Judge Clarence Thomas chose to write a statement regarding the rejection of the request for a Certiorari petition by the court. “A ban on the domestic use or cultivation of marijuana may no longer be necessary or appropriate,” he concluded.

The owners of the Standing Akimbo Medical Dispensary have called for a provision in federal tax law that limits tax deductions for companies that deal in controlled substances that are prohibited by federal law. Federal regulations allow marijuana companies to deduct only the cost of goods sold from their taxable income, not normal business expenses such as rent, utilities, and employee salaries. The business owners argued that this made the tax unconstitutional.

Thomas noted in a footnote that their reasoning “raises several difficult questions, including the differences between ‘direct’ and ‘indirect’ taxes and how to interpret the Sixteenth Amendment”. He said he agreed with the court’s decision not to address these issues.

But the constitutional amendment that sheds most light on this case is not the sixteenth to introduce the income tax. It is the eighteenth to enact a federal ban on the manufacture, sale, or transportation of intoxicating spirits.

The prohibition addendum and the 21st addendum to the lifting of the ban from 1933 testify that the federal government was not authorized under the constitution to ban alcohol. States had to agree to a constitutional amendment in order to enact and revoke it.

Why is marijuana different from alcohol? On this question, the Supreme Court relied on complex and controversial arguments in the Gonzales v. Raich of 2005. A split court ruled that Congress’s power to regulate interstate trade gives it the power to prohibit the use of marijuana within a state’s borders. The majority found that the federal ban on domestic marijuana use was “necessary and appropriate” to avoid creating a “gaping hole” in the “closed regulatory system” of Congress.

Judge Thomas has now pointed out that this “closed” system is full of openings. 36 states allow the use of medical marijuana and 18 states also allow recreational use. In 2009, Congress itself allowed the Washington DC government to decriminalize medical marijuana under local ordinance. In addition, every year since 2015, Congress has banned the Justice Department from “spending funds to prevent states from implementing their own medical marijuana laws”.

“The federal government’s current approach to marijuana bears little resemblance to the watertight nationwide ban that a narrowly divided court deemed necessary to justify the government’s blanket ban in Raich,” wrote Thomas.