Clarence Thomas Says Federal Marijuana Laws Might Be Outdated Associate Justice Clarence Thomas sits during a group photo of the Justices at the Supreme Court in Washington, D.C., on April 23, 2021. (ERIN SCHAFF/POOL/AFP via Getty Images)
By Charlie McCarthy | Monday, 28 June 2021 12:49 PM
Justice Clarence Thomas on Monday said federal laws against the sale or cultivation of marijuana might be unconstitutional due to the federal government’s inconsistent approach toward the drug.
Thomas, perhaps the Supreme Court’s most conservative judge, said a 2005 court ruling upholding federal laws making marijuana possession illegal might be out of date, NBC News reported.
"A prohibition on interstate use or cultivation of marijuana may no longer be necessary or proper to support the federal government's piecemeal approach," Thomas wrote as the court declined to hear the appeal of a Colorado medical marijuana dispensary denied federal tax breaks that other businesses are allowed.
"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."
Medical marijuana is allowed in 36 states, and 18 states allow the drug's recreational use, NBC News said.
Federal tax law, however, does not allow marijuana businesses to deduct business expenses.
"Under this rule, a business that is still in the red after it pays its workers and keeps the lights on might nonetheless owes substantial federal income tax," Thomas wrote.
The government's "recent laissez-faire policies" and enforcement of specific laws is not limited to the taxes, Thomas said.
"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," Thomas said.
"Cash-based operations are understandably enticing to burglars and robbers. But, if marijuana-related businesses, in recognition of this, hire armed guards for protection, 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 wrote it was understandable that people might be confused about legalities surrounding marijuana.
"One can certainly understand why an ordinary person might think that the Federal Government has retreated from its once-absolute ban on marijuana," Thomas wrote. "One can also perhaps understand why business owners in Colorado, like petitioners, may think that their intrastate marijuana operations will be treated like any other enterprise that is legal under state law.
"Yet, as petitioners recently discovered, legality under state law and the absence of federal criminal enforcement do not ensure equal treatment."
NBC News said the Justice Department has instructed federal prosecutors not to pursue cases against marijuana businesses that follow state law.
Since 2016, Congress has prohibited the DOJ from allocating funds to prevent states from carrying out their own laws.
Still, the IRS continues to enforce its own rules against growers and dealers.
The federal government's "willingness to look the other way on marijuana is more episodic that coherent," Thomas said.