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Conservative Supreme Court Justice Clarence Thomas on Monday issued a blistering dissent arguing that federal marijuana prohibition may no longer make sense.
Although the dissent doesn’t immediately change anything, it could become significant if its reasoning inspires lower-level judges to strike down laws that make marijuana illegal.
Thomas wrote that tolerance for state-level pot legalization created a “half-in, half-out regime” and a “contradictory and unstable state of affairs” that “strains basic principles of federalism and conceals traps for the unwary.”
Thomas attached his opinion to a court case dealing with whether a medical marijuana dispensary in Colorado, Standing Akimbo Medical Dispensary, could deduct business expenses before paying federal taxes. State-legal pot companies can’t deduct expenses because the drug remains federally illegal.
Thomas wrote, however, that tolerance for state-level pot legalization means that “[a] prohibition on intrastate use or cultivation of marijuana may no longer be necessary or proper to support the Federal Government’s piecemeal approach.”
The other eight justices didn’t justify their decision to turn down the case, leaving a lower court ruling against the business in place. But Thomas broadly attacked the “disjuncture” on federal policy beyond the tax dispute.
“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. Cash-based operations are understandably enticing to burglars and robbers,” Thomas wrote.
“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.’ A marijuana user similarly can find himself a federal felon if he just possesses a firearm. Or petitioners and similar businesses may find themselves on the wrong side of a civil suit under the Racketeer Influenced and Corrupt Organizations Act.”
Since 2012, 18 states, two US territories and Washington, DC, have legalized recreational pot use and voters in a 19th state — South Dakota — voted for legalization, but the referendum is tied up in court.
Sometimes, dissents from the Supreme Court end up as fodder for future cases.
President Biden opposes marijuana legalization and this year the White House fired and disciplined staffers for past pot use. Senate Majority Leader Chuck Schumer (D-NY) is pushing a bill to federally legalize marijuana, but a number of Democratic holdouts and broad opposition from GOP senators means it’s unlikely to pass quickly.
Thomas previously argued against federal criminalization of marijuana if the drug doesn’t cross state lines, writing in a dissent opposing the 2005 ruling in Gonzales v. Raich that it made a “mockery” of the Founding Fathers’ vision for federalism and by extension meant that the federal government could “now regulate quilting bees, clothes drives, and potluck suppers.”
The White House has declined to say if Biden will honor his campaign-trail pledge to release “everyone” in prison for marijuana. As a senator, Biden authored some of the nation’s harshest federal drug laws. On his last day as president, Donald Trump released two prisoners serving life without parole for pot under Biden’s 1994 crime law.
Vice President Kamala Harris reportedly oversaw 1,900 marijuana prosecutions while she was San Francisco district attorney from 2004 to 2011, before saying in 2019 that she is a former pot user and a supporter of legalization.
Recent polls by Gallup and Pew found that more than two-thirds of US adults support marijuana legalization — including about half of Republicans.
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