US Supreme Court Justice Clarence Thomas made an unexpected statement questioning whether the federal government’s continued ban on marijuana is necessary or appropriate. His testimony was made in connection with the denial of a Certiorari letter on the Standing Akimbo LLC v. United States matter asking the court to inquire whether a medical marijuana pharmacy was in violation of Section 280E of the Federal Tax Code.
In his statement, Judge Thomas bluntly admits that the reasons for the US Supreme Court ruling in Gonzales v. Raich in 2005 – were that Congress’s power to regulate interstate trade empowers it to ban the local cultivation and use of marijuana – “has been severely undermined by federal politics for the past 16 years. He characterized the current approach of the federal government as a contradictory and unstable “half-in-the-half-out regime”, which “strains the basic principles of federalism and hides traps for the unwary”.
Examples of mixed signals from the federal government are the Cole Memorandum 2013 issued by the Department of Justice (DOJ) and the 2015 Congressional ban preventing the DOJ from spending funds to prevent states from enforcing their own medical marijuana laws. These federal measures have “far-reaching implications,” according to Judge Thomas, with 36 states allowing the use of medical marijuana and 18 of those states allowing adult use of cannabis.
Behind the statement
In this setting, Judge Thomas rhetorically asks whether it is now reasonable for an ordinary person to believe that the federal government has “withdrawn from its once absolute ban on marijuana,” and whether cannabis business owners think “that their domestic marijuana operations are treated like Any other company that is legal under state law. ”However, he points out that“ state law legality and the lack of state law enforcement do not guarantee equal treatment ”.
Judge Thomas is clearly concerned about the strict enforcement of federal tax law at the expense of state corporations and the simultaneous lack of federal enforcement in areas such as the cultivation and distribution of marijuana, which are legal under state law. He describes the willingness of the federal government to look the other way as “more episodic than coherent”. Judge Thomas identifies other harmful consequences caused by this schizophrenic federal approach, including federal bans on financial institutions providing services to the cannabis industry, which has created significant public safety issues, and civil lawsuits against individuals and companies under those influenced by Racketeer and Corrupt Organizations Organization (RICO) law.
Judge Thomas concludes by stating that the federal government’s current approach to marijuana bears little resemblance to the unified ban policy on which a narrowly divided Supreme Court based its Raich ruling 16 years ago. He warns that the federal government may no longer have the power to invade the central police powers of states by allowing states to act as laboratories trying out new social and economic experiments. “A ban on the domestic use or cultivation of marijuana may no longer be necessary or appropriate to support the federal government’s piecemeal approach.”
While Judge Thomas’ testimony has no formal precedent, it nonetheless represents the clearest testimony by any incumbent – and Conservative – Supreme Court that questions the rationality of current federal marijuana policies. For court observers, it means a seismic shift in marijuana policy within the country’s highest court. Judge Thomas’ courageous defense of federalism should prove influential to members of the other branches of government who remain cautious about major marijuana reform.
© 2021 Wilson ElserNational Law Review, Volume XI, Number 180