Supreme Court Justice Clarence Thomas surprised many on Monday when he issued a dissent asserting that federal laws pertaining to marijuana “may no longer be necessary” because of the “piecemeal,” “half-in, half-out” approach to regulating the drug, as The Hill reports.
Thomas’ comments came in the context of a case in which the court declined to hear an appeal from a medical marijuana dispensary in Colorado that was denied the same type of deferential federal tax treatment that other businesses receive, simply because the drug remains illegal under federal statute, regardless of state law permitting its sale and use.
As the New York Post noted, the longtime conservative jurist lamented the fact that federal tolerance for state-level legalization has resulted over the years in a “half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana,” not to mention a “contradictory and unstable state of affairs,” that “strains basic principles of federalism and conceals traps for the unwary.”
Given the current situation, Thomas opined, “[a] prohibition on intrastate use or cultivation of marijuana may no longer be necessary or property support the Federal Government’s piecemeal approach.”
Undergirding Thomas’ point is the fact that the Justice Department has advised federal prosecutors across the country not to proceed in cases against marijuana enterprises that are in compliance with state law. Yet, at the same time, the Internal Revenue Service still enforces federal tax rules against growers and sellers alike, as NBC News pointed out.
The disjointed approach to marijuana regulation has led to a governmental “willingness to look the other way on marijuana” that Thomas declared “more episodic than coherent,” and puts individuals who cooperate fully with state regulations at risk of inadvertently running afoul of federal laws and facing severe consequences as a result.
Whether Thomas’ dissent will lay the groundwork for acceptance of a future case at the high court dealing with the issues raised remains to be seen, but there is certainly confusion and disagreement at the highest levels of government as to the proper course of action in this realm.
President Joe Biden has previously voiced his own opposition to legalization of marijuana at the federal level, and his White House has taken disciplinary and employment actions against staffers who admitted prior pot use. At the same time, however, Sen. Chuck Schumer (D-NY) has long pledged to introduce legislation designed to effect what he calls “long overdue” reform on the issue.
With 18 states, two territories and the District of Columbia having already legalized recreational marijuana use, and recent polling that suggests over two-thirds of American adults support that trend, it seems likely that the points made by Thomas will indeed require reconciliation from the full bench sooner rather than later.