Government

Blaze It! Justice Thomas Lights Into Federal Marijuana Prohibition

It's 4:20 somewhere.

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Spark one up in honor of Justice Clarence Thomas, who penned a pointed dissent to a denial of certiorari in a tax case brought by a Colorado marijuana dispensary fighting efforts by the IRS to subpoena its business records pursuant to an audit.

Under federal tax law, dispensaries may deduct the cost of raw materials as a business expense, but not the labor and other inputs necessary to move those materials out the door, i.e. rent, sales staff, and security. Which puts them in the bizarre position of functioning as law-abiding businesses at the state level, and quasi-outlaws in the eyes of Uncle Sam.

“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 writes, describing the disjuncture between federal statutes and the tacit agreement to look the other way on the hundreds of thousands of cannabis-related businesses which have popped up in the past ten years. “This contradictory and unstable state of affairs strains basic principles of federalism and conceals traps for the unwary.”

Of course this is all couched in terms of Justice Thomas’s devotion to states’ rights.

“If the Government is now content to allow States to act “as laboratories’ ‘“and try novel social and economic experiments,”’ Raich, 545 U. S., at 42 (O’Connor, J., dissenting),” he writes, referencing the 2015 case in which he dissented from a Commerce Clause holding in support of a nationwide cannabis ban, “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.'”

Also, guns. Because CLARENCE THOMAS.

Cash-based operations are understandably enticing to burglars and robbers. But, if marijuana-related businesses, in recognition of this, hire armed guards for protection, the owners and the guards might run afoul of a federal law that imposes harsh penalties for using a firearm in furtherance of a “drug trafficking crime.” 18 U. S. C. §924(c)(1)(A). A marijuana user similarly can find himself a federal felon if he just possesses a firearm. §922(g)(3).

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But however he gets there, Justice Thomas is right that we can’t go on like this forever. If it ever made sense to allow for a federal prohibition on marijuana, it certainly doesn’t now when half the country allows for the sale of medical or even recreational weed.

“A prohibition on intrastate use or cultivation of marijuana may no longer be necessary or proper to support the Federal Government’s piecemeal approach,” he writes. Which means exactly nothing, coming in an objection to denial of cert, of course. But if Justice Thomas is ready to call BS on the federal government’s preposterous insistence on treating cannabis as a Schedule 1 substance with no accepted medical uses and a “high potential for abuse,” then maybe our elected officials can cowboy up the bar and quit pretending that pot is more dangerous than fentanyl.

Smoke ’em if you got ’em!

Elizabeth Dye (@5DollarFeminist) lives in Baltimore where she writes about law and politics.

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