Clarence Thomas says federal laws against marijuana may no longer be necessary
“The federal government’s current approach is a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana,” the conservative Supreme Court justice wrote.
Clarence Thomas, one of the Supreme Court‘s most conservative justices, said Monday that because of the hodgepodge of federal policies on marijuana, federal laws against its use or cultivation may no longer make sense.
“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.
His views came as the court declined to hear the appeal of a Colorado medical marijuana dispensary that was denied federal tax breaks that other businesses are allowed.
Thomas said the Supreme Court’s ruling in 2005 upholding federal laws making marijuana possession illegal may now be out of date.
“Federal policies of the past 16 years have greatly undermined its reasoning,” he said. “The federal government’s current approach is a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana.”
Thirty-six states now allow medical marijuana, and 18 also allow recreational use. But federal tax law does not allow marijuana businesses to deduct their 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 owe substantial federal income tax,” Thomas said.
The Department of Justice has instructed the nation’s federal prosecutors not to pursue cases against marijuana businesses that follow state law. And since 2015, Congress has prohibited the Justice Department from spending federal money to prevent states from carrying out their own laws.
But 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.
Filed under: General Problems
I wish the brilliant minds at NBC News took the trouble to say where Justice Thomas said or wrote this. Was it in his opinion on Certiorari in the Colorado case? And if so, was is part of the majority opinion to deny Certiorari, or did he cast a dissenting vote, wishing the Court had taken up the case? In all events, Congress has the sovereign power to collect taxes, and the confusion Lincoln created by imposing a luxury tax on annual incomes exceeding $100,000 (to pay for the Civil War), led to repeated litigation on how to define the difference between luxury and necessity. We mark the April 15th anniversary of Lincoln’s murder by Booth, as the due date for income tax forms, but it was a guy on Booth’s political side, Woodrow Wilson, who rammed through a constitutional amendment enabling Congress to tax incomes and write the rules on how to define them. It would be consistent with the SCOTUS majority, to hold that any revenue law however harmful, was within Congress’ power to enact, as long as the revenue law actually collected revenue. (This follows from Leary v US, in which the court struck down FDR’s Marihuana Tax Act of 1937 because it collected no tax money and actually prohibited growing the plant. The Controlled Substances Act of 1972 was rushed through Congress to replace the FDR law). So it follows that a hodgepodge of contradictory federal laws would best be addressed by repealing them, and that if SCOTUS is to strike down anything, they should take a case that literally is about an unconstitutional action.
What was alleged and never timely denied, in the case of Washington v Sessions, is that DEA has acted outside the Constitution and the Controlled Substances Act, by using emergency powers Nixon temporarily gave it in a 1974 Executive Order, to block the Surgeon General from using powers he held under the Act, to legalize marijuana at the federal level. Any case that attacks the constitutionality of that Order, seems worthy of Certorari, and would create what’s badly needed if rationality is to be restored.
Patient groups missed the chance to ask the Court as amici curia, to take the case of Naum v US last month. The Naum case exposes a very stark circuit split. Dr Naum was charged with a crime because he saved money for the Government in treating addicts at his clinic. DEA insisted the money-saving measures, already in use in Massachusetts, deviated just enough from procedures in West Virginia, to be a fraud against the Government and a violation of drug laws, DESPITE the fact that Dr Naum saved money for the Government and did not cheat it. In criminal matters like the Naum case, Dr Naum must be presumed innocent and the Government has a duty to show the jury any evidence that might prove Dr Naum not guilty. At trial, DEA intentionally held back evidence absolutely proving Dr Naum was innocent and therefore not guilty. The trial judge allowed DEA to violate the Constitution and obtain by fraud a conviction, for an alleged crime that was no crime at all. Astonishingly, the Fourth Circuit upheld the fraudulent conviction. Only by the twisted and bizarre reasoning of Nixon’s temporary national drug emergency that has temporarily dragged on now 57 years, is it conceivable there could be some compelling federal interest persuasive enough to the Fourth Circuit, to allow DEA to hijack a federal court and use it to construct a Stalinesque show trial.
The Second Circuit completely demolished the same argument when presented in Washington v Sessions. Mr Sessions asserted that he was immune from civil suit and did not have to answer the Complaint. He also complained that the Complaint, alleging the actions by Nixon as the continuing cause of legal system confusion, was complex and difficult to understand. Mr Sessions lost badly in the Second Circuit. He resigned two hours later.
So our only remaining hope, now that all of the patient organizations failed to brief the Court, is to hope that the Court figures out on their own, that something is seriously wrong here.
I’ve privately expressed my disappointment with multiple representatives of our patient community, for lacking the courage to take decisive action. In the end, we had one lawyer willing to edit and sign the brief. We had a mountain of research supporting the brief. We had the filing fees. And none of the organizations who claim to represent patients, were willing to sign their names to join our case. All of them expressed fear that other organizations of patients might sue them for appearing in this case, a fear that is completely unfounded.
That’s why progress has been so slow. All of us have signs taped to our butts, reading “Kick me here!”. And the abuse continues.
…hmmmm, noticed that the dispensary dose is way way higher than the street dose, hmm?