Washington, DC: United States Supreme Court Justice Clarence Thomas has called into question the US government’s authority to impose federal prohibitions on the state-licensed production and sale of cannabis.
In a written opinion issued on Monday, Thomas wrote, “The Federal Government’s current approach is a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana.” Specifically, Thomas referred to legislation passed by Congress every year since 2015 prohibiting the Justice Department from interfering in states’ medical cannabis access programs. “This contradictory and unstable state of affairs strains the basic principle of federalism,” he wrote.
Thomas further acknowledged that times have changed significantly since 2005, when the Supreme Court ruled 6 to 3 (in Gonzalez v Raich) that federal law prohibited any state-sanctioned use of marijuana as a medicine – even in instances where there was no interstate commerce. Thomas was among the judges who dissented in that case.
He wrote: “Whatever the merits of Raich [were] when it was decided, federal policies of the past 16 years have greatly undermined its reasoning. … Suffice it to say, the Federal Government’s current approach to marijuana bears little resemblance to the watertight nationwide prohibition that a closely divided Court found necessary to justify the Government’s blanket prohibition in Raich. 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.’ A prohibition on intrastate use or cultivation of marijuana may no longer be necessary or proper to support the Federal Government’s piecemeal approach.”
Thomas issued his comments while presiding over the appeal of a case (Standing Akimbo LLC et al v United States) challenging the federal ban on tax deductions for state-licensed cannabis businesses.
In response to Justice Thomas’ comments, NORML’s Executive Director Erik Altieri said: “Justice Thomas’ comments reflect what has been obvious to the vast majority of Americans for some time now. With nearly half of all Americans residing in a state where the use of marijuana by adults is completely legal, it is both absurd and problematic for the federal government to continue to define cannabis as a prohibited Schedule I controlled substance. This intellectually dishonest position is in conflict with the available science and the current cultural landscape, and it complicates the ability of states to successfully regulate and oversee state-legal marijuana businesses.”
Altieri concluded, “It is time for Congress to end this untenable situation by removing cannabis from the Controlled Substances Act so that states can make their own decisions with regard to marijuana and marijuana commerce free from undue federal interference.”
Read Justice Thomas’ full statement.