In the Supreme Court of the United States’ denial of a petition to consider an Internal Revenue Service tax deduction investigation lawsuit filed by a Colorado marijuana dispensary, Standing Akimbo, on Monday, Justice Clarence Thomas claimed that the federal government’s stance on marijuana is problematic, and is not the nationwide prohibition that was previously in place.
“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,” the denial said.
Justice Thomas suggested that the national prohibition on marijuana could be unconstitutional, citing a 2005 Supreme Court ruling in Gonzales v. Raich which determined that the federal government could enforce a marijuana prohibition when the process was held within California, because the government can regulate interstate commerce. Here, the Court ruled that Congress prohibited marijuana and so prohibiting intrastate use was necessary. Justice Thomas argued that federal policies since the ruling have “greatly undermined its reasoning,” citing the present lawsuit as an example.
The denial related that Congress has approved multiple times a bill rider prohibiting U.S. Department of Justice funds from interfering with medical marijuana programs run by states. Justice Thomas said that the disjointed marijuana policies and laws stretch further than taxes, noting congress allowing Washington, D.C. to decriminalize medical marijuana, 36 states allowing medical marijuana, and 16 states allowing recreational uses of marijuana.
“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. … 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,” Justice Thomas said.
The filing explained that it was understandable why parties, like the marijuana dispensary, would think the federal government no longer has a ban on medical marijuana and assume that their intrastate marijuana business would be treated like any other business under federal law. The denial explained that this is not the case in the tax code in question, which does not allow a business dealing in controlled substances to subtract business expenses.
The judge further noted that the disjointed laws lead many marijuana businesses to operate in cash because federal laws lead financial institutions to deny them services, leading to additional dangers for marijuana businesses.
“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 justice concluded, noting that if the government wishes to let the states experiment with marijuana legalization, it might lose authority to regulate the state’s police powers.