“A Half-In, Half-Out Regime”: Justice Thomas Slams Continued Criminalization Of Marijuana In Little Noticed Opinion

Authored by Jonathan Turley,

As we wait for the final cases from the Supreme Court this week, Monday was confined to orders of the Court, including the granting and denial of review of cases. One of the cases that was declined was Standing Akimbo, LLC v. United States. That is hardly news on a Court that rejects most petitions for a writ of certiorari. However, this denial was accompanied by an opinion from Justice Clarence Thomas who slammed the current federal policy on marijuana as “a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana.” 

He is, of course, correct.

The current position of marijuana criminalization is incomprehensible and conflicted. However, the criticism from one of the Court’s most conservative members was particularly notable. The timing is also notable. This week, the Mexican Supreme Court decriminalized recreational use of marijuana.

The case derived from the United States Court of Appeals for the Tenth Circuit and involved a medical-marijuana dispensary, Standing Akimbo, LLC, which was under investigation by the IRS for improper deductions for business expenses arising from a “trade or business” that “consists of trafficking in controlled substances.” 26 U.S.C. § 280E. Peter Hermes, Kevin Desilet, Samantha Murphy, and John Murphy refused to verify their tax liabilities because they feared criminal prosecution.  The Tenth Circuit upheld the district court decision in favor of the IRS and its authority to conduct the audit.

Thomas noted that in 2005 a fractured divided court ruled Gonzales v. Raich, 545 U.S. 1 (2005), that the federal government could rely on interstate commerce authority to enforce prohibition against cannabis cultivation even when it took place wholly within California.  The Court rationalized that this “fungible commodity” was part of “comprehensive legislation to regulate the interstate market ” and that “exemption[s]” for local use could undermine this “comprehensive” regime. Thus prohibiting any intrastate use was, according to the Court, “‘necessary and proper’” to avoid a “gaping hole” in Congress’ “closed regulatory system.”

Now however there is widespread legalization of the possession and sale of marijuana, a trend that we have been following with a massive market emerging across the country.  There is also massive public support for legalization that has been building for years.

That has all led to our current nonsensical federal system that criminalizes marijuana while tolerating its sale. That brought Thomas back to Raich and the fact that the opinion now seems facially ridiculous in its logic. Thomas noted “Whatever the merits of Raich when it was decided, federal policies of the past 16 years have greatly undermined its reasoning. Once comprehensive, the Federal Government’s current approach is a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana.”

Thomas noted that the federal authority rests on what is not something of a myth that leaves citizens both confused and at risk:

“This contradictory and unstable state of affairs strains basic principles of federalism and conceals traps for the unwary though federal law still flatly forbids the intrastate possession, cultivation, or distribution of marijuana…the Government, post-Raich, has sent mixed signals on its views.”

Thomas noted that the federal government continues to claim the authority while simultaneously saying that it will not enforce it. For its part, Congress has tried to curtail enforcement through budget limits: “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.”

Thomas notes that the “petitioners have found that the Government’s willingness to often look the other way on marijuana is more episodic than coherent.”

Thomas is right.  It is surprising that the case could not garner four votes to allow review. It would have made for an excellent platform to reconsider Raich. As a result of the decision, citizens and businesses will be left to languish in this muddled legal and regulatory status. Marijuana remains a criminal substance tolerated by the federal government and actively supported by many states.

For those of us with libertarian tendencies, legalization of cannabis has long been a cause célèbre. However, even for those who have not held this view, I cannot imagine that the currently self-contradictory position of the federal government is tolerable. Of course, the Court may be hoping that Congress acts to correct this glaring contradiction. The preference is always for the political branches to address such questions with sweeping social and political consequences. However, the patience of the Court may be running short for Congress to show a modicum of responsibility and reason in decriminalizing cannabis.

Notably, the Mexican Supreme Court previously tried to force its own Congress to act with an April 30th deadline to legalized recreational use of marijuana. A bill passed one house but languished in in the Senate. In its decision, the Court again urged its own Congress to act “in order to generate legal certainty.” As it stands, citizens are protected in their recreational use but the government still criminalizes the production and transportation of the product.

Our Court does not dictate such deadlines but the Thomas opinion shows the same growing impatience with our politicians who want to support cannabis use but lack the courage to decriminalize the product on the federal level. I am surprised that none of his colleagues joined Thomas in this opinion. I expect, however, that his statement of frustration is shared by others on the Court and this is a shot across the bow for both Congress and the White House.