June 29, 2021 -- Supreme Court Justice Clarence Thomas on Monday called the federal government’s marijuana laws “contradictory” and said they “may no longer be necessary.”
The court decided not to hear an appeal from a Colorado medical marijuana dispensary that was denied federal tax breaks that other businesses can claim. Thomas said the Supreme Court’s ruling in 2005 that made marijuana possession illegal may be outdated, especially now that state and federal policies are mixed on the matter.
“Once comprehensive, the Federal Government’s current approach is a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana,” he wrote in a dissenting opinion.
“This contradictory and unstable state of affairs strains basic principles of federalism and conceals traps for the unwary,” he said.
During the past 16 years, federal policies have “greatly undermined” the reasoning behind the 2005 decision, Thomas said. To date, 36 states allow medical marijuana use, while 18 allow recreational use. But federal tax law only allows marijuana businesses to deduct the cost of goods sold, not business expenses such as rent and employee salaries.
“Under this rule, a business that is still in the red after it pays its workers and keeps the lights on might nonetheless owe substantial federal income tax,” Thomas wrote.
In 2009 and 2013, the Department of Justice instructed federal prosecutors not to pursue cases against marijuana businesses as long as they follow state law, NBC News reported. Each year since 2015, Congress has also prevented the department from using federal money to prevent states from putting their own marijuana laws into effect. At the same time, the IRS continues to enforce its own regulations against marijuana growers and dealers, the news outlet reported.
“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 wrote.
On Monday night, Thomas’ remarks drew wide-ranging attention online, according to Newsweek. Historians, politicians, and cannabis advocates weighed in on social media, often remarking with surprise or humor that the conservative justice would comment on marijuana legalization before some left-leaning lawmakers.
“Justice Thomas’ comments reflect what has been obvious to the vast majority of Americans for some time now,” Erik Altieri, executive director of pro-legalization group NORML, said in a statement.
“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,” he said.
Two weeks ago, Democrats introduced a bill in Congress that would decriminalize cannabis at the federal level, according to The Verge. The Drug Policy Reform Act would end criminal penalties for drug possession, expunge criminal records, and shift regulatory authority to the Department of Health and Human Services to “emphasize that substance use is a health issue and not a criminal issue.”