Justice Clarence Thomas, the Supreme Court’s longest-serving member, issued a crude statement on federal cannabis prohibition, highlighting irregularities in the federal government’s approach to marijuana policy.
Thomas, who has served in the Supreme Court for almost 30 years and is often viewed as among the most conservative, said “once comprehensive, the Federal Government’s current approach is a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana.”
The Judge went so far as to say that prohibition of intrastate cannabis use or cultivation may no longer be necessary “to support the Federal Government’s piecemeal approach.”
The government, according to Thomas, has sent mixed signals on its position regarding cannabis prohibition.
While on the one hand, federal law still “flatly forbids the intrastate possession, cultivation, or distribution of marijuana,” the federal government has consistently allowed these acts.
On two occasions, in 2009 and 2013, the Department of Justice under President Obama issued memoranda outlining policies that blocked its intrusion into state legalization schemes or prosecution of individuals who comply with state law. Known as the Cole memo, the policy laid out enforcement priorities for federal prosecutors that directed them to refrain from pursuing low-level cannabis offenses.
Concurrently, in every fiscal year since 2015, Congress has prohibited the Department of Justice from “spending funds to prevent states’ implementation of their own medical marijuana laws,” Thomas said.
“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.”
Turning A Blind Eye Does Not Equal Legalization: While the government’s absence of marijuana law enforcement is apparent in certain areas, such a scattershot policy has not resulted in equal treatment for cannabis businesses, who face drawbacks when reporting revenues for federal income taxes.
This patchwork of cannabis policy apparently led Thomas to say “the Government’s willingness to often look the other way on marijuana is more episodic than coherent.”
The Justice also mentioned the infamous banking struggles cannabis businesses routinely face wherein they are obliged to “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.
“If the Government is now content to allow States to act ‘as laboratories’ and ‘try novel social and economic experiments,’ then it might no longer have authority to intrude on ‘[t]he States’ core police powers . . . to define criminal law and to protect the health, safety, and welfare of their citizens,” concluded the Supreme Court Justice.