Drug Policy

Clarence Thomas Blasts the 'Contradictory and Unstable' Federal Marijuana Ban

Sixteen years after Gonzales v. Raich, Thomas is back with another opinion criticizing the federal government’s marijuana ban.

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In 2005, the U.S. Supreme Court heard arguments in a case pitting California's Compassionate Use Act, a voter initiative that legalized the use of medical marijuana within state borders, against the federal Controlled Substances Act, which outlawed the use of marijuana for any purpose anywhere in the nation. The question before SCOTUS in Gonzales v. Raich was whether the federal ban, which was based on the congressional power to "regulate commerce…among the several states," may be lawfully applied against medical marijuana that is cultivated and consumed entirely within just one state.

The feds won 6–3. The Controlled Substances Act "is a valid exercise of federal power," declared the majority opinion of Justice John Paul Stevens, who maintained that the Commerce Clause must be read capaciously so that Congress has the tools needed to reach such local activity as part of a "comprehensive" national regulatory scheme. Writing in dissent, Justice Clarence Thomas complained that "if Congress can regulate this under the Commerce Clause, then it can regulate anything—and the Federal Government is no longer one of limited and enumerated powers."

Sixteen years later, Thomas is back with another blast at the federal government's marijuana ban. What is more, Thomas now says that the federal government's own actions may have negated Raich's legal rationale. "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. "This contradictory and unstable state of affairs strains basic principles of federalism and conceals traps for the unwary."

Thomas' statement came in response to the Supreme Court declining to hear arguments in the case of Standing Akimbo v. United States. Standing Akimbo is a medical marijuana dispensary in Denver that operates legally under Colorado law. Yet, as Thomas points out, the company is still acting illegally under federal law, which means, among other things, that the company is at odds with the Internal Revenue Service over whether or not "their intrastate marijuana operations will be treated like any other enterprise that is legal under state law."

Thomas also describes other problems that similar enterprises still face thanks to the federal marijuana ban remaining on the books, even if the ban itself is rarely enforced:

Many marijuana-related businesses 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….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.'…A marijuana user similarly can find himself a federal felon if he just possesses a firearm.

"Suffice it to say," Thomas concludes, "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." In other words, if the feds are no longer regulating the marijuana market the way they said they were when Raich was decided, then the Raich decision may no longer be good law. "A prohibition on intrastate use or cultivation of marijuana," Thomas observes, "may no longer be necessary or proper to support the Federal Government's piecemeal approach."