According to Clarence Thomas, there is no use in the federal government continuing to enforce separate rules for the cannabis plant if it’s going to continue allowing states to operate fully legal markets.
Although the suits on Capitol Hill, otherwise known as Congress, might be incapable of passing a marijuana reform bill this year — and rest assured, they are seriously incapable of getting it done — one of the US Supreme Court’s most conservative justices has published a statement concerning federal marijuana prohibition that could make them look like clowns for their inaction.
On Monday, Justice Clarence Thomas said the federal marijuana laws in the United States had lost any sensical function and are no longer needed.
“A prohibition on interstate use or cultivation of marijuana may no longer be necessary or proper to support the federal government’s piecemeal approach,” he wrote.
In other words, there is no use in the federal government continuing to enforce separate rules for the cannabis plant if it’s going to continue allowing states to operate fully legal markets. The statement was in response to a case involving a Colorado marijuana business and how the IRS will not allow it to take deductions like other legitimate businesses. The nation’s highest court opted not to take on the case, yet Thomas didn’t let it go without offering his two cents on the matter.
“Federal policies of the past 16 years have greatly undermined its reasoning,” Thomas continued. “Once comprehensive, 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.”
Thomas is referring to a couple of occasions when the Obama Administration took a hands-off approach to state marijuana laws, instructing federal prosecutors not to make weed a priority. He also points to how federal budget riders designed to protect cannabis operations in medical marijuana states have been approved by Congress over the past several years.
“Given all these developments, 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…may think that their intrastate marijuana operations will be treated like any other enterprise that is legal under state law.”
As far as Thomas sees it, the federal government may have lost the power to enforce cannabis laws. “If the Government is now content to allow States to act “as laboratories” “‘and try novel social and economic experiments, then it might no longer have authority to intrude on “[t]he States’ core police powers . . . to define criminal law and to protect the health, safety, and welfare of their citizens.”
Although Thomas’ thoughts on the matter won’t force any concrete changes at the national level, cannabis advocates praised him for taking a stand and giving Congress something to think about.
“Justice Thomas’ comments reflect what has been obvious to the vast majority of Americans for some time now,” said NORML’s Executive Director Erik Altieri. “With nearly half of all Americans residing in a state where the use of marijuana by adults is completely legal, it is both absurd and problematic for the federal government to continue to define cannabis as a prohibited Schedule I controlled substance.
“This intellectually dishonest position is in conflict with the available science and the current cultural landscape, and it complicates the ability of states to successfully regulate and oversee state-legal marijuana businesses,” he continued. “It is time Congress to end this untenable situation by removing cannabis from Controlled Substances Act so that states can make their own decisions with regard to marijuana and marijuana commerce free from undue federal interference.”
It might be time for Congress to get serious about ending federal marijuana prohibition but again, that’s not likely to happen. There still too much division in the Senate to see that a cannabis reform bill gets a fair shot. Furthermore, plenty of Democrats and Republicans representing states where weed is legal aren’t yet convinced that federal legalization is the right way to go. And President Joe Biden, well, he’s not willing to support full-blown legalization until after the research tells him it’s safe to do so. Still, perhaps the Hill will heed Thomas’ words.