Supreme Court

Justice Thomas Decries "Contradictory and Unstable State" of Marijuana

In an opinion respecting the denial of certiorari, Justice Thomas suggests it may be time to reconsider Gonzales v. Raich


The Supreme Court granted certiorari in two cases today, and summarily resolved two others: Lombardo v. St. Louis and Pakdel v. San Francisco.  Here is today's Orders List.

One case in which the Supreme Court denied certiorari was Standing Akimbo v. United States, in which the petitioners sought review of a lower court decision upholding IRS summonses seeking information concerning business expense deductions for a medical marijuana dispensary. Although medical marijuana is legal and regulated in many states, medical marijuana business owners may not take federal tax deductions for their business expenses, as their business "consists of trafficking in controlled substances" under federal law.

While not urging the Court to take this specific case, Justice Thomas issued an opinion respecting the denial of certiorari highlighting the "contradictory and unstable state" of federal law concerning marijuana and raising questions about the continuing vitality of the Supreme Court's decision in Gonzales v. Raich.

Sixteen years ago, this Court held that Congress' power to regulate interstate commerce authorized it "to prohibit the local cultivation and use of marijuana." Gonzales v. Raich, 545 U. S. 1, 5 (2005). The reason, the Court explained, was that Congress had "enacted comprehensive legislation to regulate the interstate market in a fungible commodity" and that "exemption[s]" for local use could undermine this "comprehensive" regime. Id., at 22–29. The Court stressed that Congress had decided "to prohibit entirely the possession or use of [marijuana]" and had "designate[d] marijuana as contraband for any purpose." Id., at 24–27 (first emphasis added). Prohibiting any intrastate use was thus, according to the Court, "'necessary and proper'" to avoid a "gaping hole" in Congress' "closed regulatory system." Id., at 13, 22 (citing U. S. Const., Art. I, §8).

Whatever the merits of Raich when it was decided, federal policies of the past 16 years have greatly undermined its reasoning. Once comprehensive, the Federal Government's current approach is a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana. This contradictory and unstable state of affairs strains basic principles of federalism and conceals traps for the unwary.

This case is a prime example. Petitioners operate a medical-marijuana dispensary in Colorado, as state law permits. And, though federal law still flatly forbids the intrastate possession, cultivation, or distribution of marijuana, Controlled Substances Act, 84 Stat. 1242, 1247, 1260, 1264, 21 U. S. C. §§802(22), 812(c), 841(a), 844(a), the Government, post-Raich, has sent mixed signals on its views. In 2009 and 2013, the Department of Justice issued memorandums outlining a policy against intruding on state legalization schemes or prosecuting certain individuals who comply with state law. In 2009, Congress enabled Washington D. C.'s government to decriminalize medical marijuana under local ordinance. Moreover, 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." United States v. McIntosh, 833 F. 3d 1163, 1168, 1175–1177 (CA9 2016) (interpreting the rider to prevent expenditures on the prosecution of individuals who comply with state law). That policy has broad ramifications given that 36 States allow medicinal marijuana use and 18 of those States also allow recreational use.5

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. . . . One can also perhaps understand why business owners in Colorado, like petitioners, may think that their intrastate marijuana operations will be treated like any other enterprise that is legal under state law.

Yet, as petitioners recently discovered, legality under state law and the absence of federal criminal enforcement do not ensure equal treatment. At issue here is a provision of the Tax Code that allows most businesses to calculate their taxable income by subtracting from their gross revenue the cost of goods sold and other ordinary and necessary business expenses, such as rent and employee salaries. See 26 U. S. C. §162(a); 26 CFR. 1.61–3(a) (2020). But because of a public-policy provision in the Tax Code, companies that deal in controlled substances prohibited by federal law may subtract only the cost of goods sold, not the other ordinary and necessary business expenses. See 26 U. S. C. §280E. 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.

As things currently stand, the Internal Revenue Service is investigating whether petitioners deducted business expenses in violation of §280E, and petitioners are trying to prevent disclosure of relevant records held by the State.6 In other words, petitioners have found that the Government's willingness to often look the other way on marijuana is more episodic than coherent.

This disjuncture between the Government's recent laissez-faire policies on marijuana and the actual operation of specific laws is not limited to the tax context. 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." 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). Or petitioners and similar businesses may find themselves on the wrong side of a civil suit under the Racketeer Influenced and Corrupt Organizations Act. See, e.g., Safe Streets Alliance v. Hickenlooper, 859 F. 3d 865, 876–877 (CA10 2017) (permitting such a suit to proceed).

I could go on. 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,'" Raich, 545 U. S., at 42 (O'Connor, J., dissenting), 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." Ibid. A prohibition on intrastate use or cultivation of marijuana may no longer be necessary or proper to support the Federal Government's piecemeal approach.

Justice Thomas' opinion highlights one of the many ways in which federal law continues to distort and obstruct state-level marijuana reforms. For more on these conflicts may be resolved, I shamelessly recommend my book, Marijuana Federalism: Uncle Sam and Mary Jane. Among other things, the book includes a chapter by Julie Hill on how the disconnect between federal and state law affects banking regulation, and a chapter by my co-blogger Will Baude on why the the federal prohibition on intrastate possession and distribution of marijuana might not be "Necessary & Proper" where authorized by state law.

As for whether Raich was properly decided at the time of the decision. I have thoughts on that too.

NEXT: Today in Supreme Court History: June 28, 2010

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  1. “Whatever the merits of Raich when it was decided, federal policies of the past 16 years have greatly undermined its reasoning.”

    The so-called merits of Raich were such that undermining them is kind of hard to accomplish, like achieving a temperature below absolute zero.

    Perhaps we need some constructive living constitutionalism here, since simply restoring commerce clause jurisprudence to it’s pre-Wickard sanity seems unlikely. You know neither the 18th nor 21st amendments actually specify they’re applicable only to alcohol? They refer to “intoxicating liquor”.

    You could make a better case for them both being applicable to all intoxicants, than can you can for many now entrenched bits of judicial sophistry.

    1. It’s hard to believe that Thomas censored the word “f***” in the cheerleader opinion but type out “merits of Raich” for all to see.

      Doesn’t he understand that exposure to the phrase, “merits of Raich” can actively cause harm?

    2. The so-called merits of Raich were such that undermining them is kind of hard to accomplish, like achieving a temperature below absolute zero.

      You are actually selling Thomas’ argument short.

      He’s saying that the theory behind Raich was that if the federal government ACTUALLY BANS SOMETHING, it would create a gaping hole in the regulatory scheme to allow any local, private possession. I don’t think that is the end of the day with respect to Commerce Clause analysis (and in fact, I think Raich was wrongly decided), but stepping outside of constitutional law for a second, there’s no doubt that this can be true.

      For instance, take the government’s ban on private possession of biological weapons. If the Constitution required an exception for biological weapons produced inside a single state from materials obtained within a single state, that could completely thwart the ban, including the ban on interstate commerce with respect to such items (because once produced, such weapons could easily be sent across state lines). It’s not a terrible argument in the abstract.

      But Thomas’ point is even if you accept that argument, it only works if the federal government is actually treating something as contraband. I.e., it works for biological weapons, but it doesn’t work anymore for marijuana (if it ever did) because in fact the federal government is allowing the states to legalize it in various ways. For something to be contraband, the federal government has to actually treat it as contraband.

      1. Why do you think Raich was wrongly decided?

        1. 1. Because there has to be some line drawn between local and interstate activity, and I think growing a plant for your own use on your own property falls on the “local” side of the line.

          2. Because I think even as of 2005, the necessity of prohibiting local growing of small amounts of marijuana for personal use to federal marijuana policy was highly questionable.

          I accept the notion that there might be an exception to my point (1) for true contraband (i.e., if someone managed to manufacture a nuclear bomb from materials either found on his or her own property or purchased on the local market from local suppliers, you can make a strong “necessary and proper” argument for the federal government to be able to ban it), but for the contraband theory to be operative, the federal government must both in theory and in practice treat the substance as contraband and the local possession of locally sourced “contraband” must pose some sort of real threat to the integrity of the federal prohibition. Neither of those things were true about the marijuana in Raich (or the grain produced by farmer Filburn in Wickard, for that matter).

  2. Or maybe, just maybe, the federal government could follow the law and take a substance with proved medical uses off schedule one?
    Nah, didn’t think so.

    1. If they were that determined to “follow the law”, we wouldn’t have federal drug laws in the first place. It’s not as though the reasoning that required an amendment for Prohibition didn’t apply to other drugs, after all.

      They just stopped caring that it did.

      1. I’m fine with changing attitudes of the people discovering new unenumerated rights. I am not fine with politicians increasing their power to regulate in new areas sans amendment, arguing The People want it.

        The first is in accordance with government only having powers clearly granted to it, the second is the exact opposite.

        1. “I’m fine with changing attitudes of the people discovering new unenumerated rights.”

          Unenumerated negative rights are just peachy. It’s the unenumerated positive rights, that functionally are a reduction in everybody else’s rights, that bite.

      2. If they were that determined to “follow the law”, we wouldn’t have federal drug laws in the first place. It’s not as though the reasoning that required an amendment for Prohibition didn’t apply to other drugs, after all.

        You always repeat this, but it is wrong as a matter of history and irrelevant as a matter of law.

        It’s wrong as a matter of history because the proponents of Prohibition sought a constitutional amendment NOT because of their perceptions about the constitutionality of a statutory ban, but because they thought it would make it more permanent and harder to repeal. There’s numerous statements to this effect and you should read some histories of Prohibition.

        Second, it wouldn’t matter in terms of the Constitution what the sponsors of Prohibition thought. Maybe they were wrong! What matters is what the Supreme Court says the law is, not what Brett Bellmore THINKS (wrongly) that Prohibitionists THOUGHT the Constitution meant.

        1. No, as a consequential matter, what I think doesn’t mean a thing, and I’m quite comfortable with accepting that.

          But, of course, what use is reason, if you just abandon its products if other people disagree with you? So I’ll continue to think that the war on drugs needed an amendment, at least the moment it extended past controlling what it was legal to do on federal property, (Purchased with the permission of the legislature of the state it was in!) or what could legally be carried across state borders in commerce.

          It is not an accident that the Harrison Narcotics act was a tax law. It was written as a tax law because Congress had the power to tax things, but did NOT have the power to ban things.

          And at the time were still willing to admit it.

          1. But, of course, what use is reason, if you just abandon its products if other people disagree with you?

            When you say what Prohibitionists thought, you aren’t using reason anymore. You are just appealing to authority, but authority that has no more importance than what you think. There’s no reason to think that the Prohibitionists were right about what the Constitution required, even assuming that you were right about what they thought.

        2. I would add that the advocates of Prohibition wanted an amendment because, while no amendment was necessary for individual states to impose such a ban, it was needed for the federal government to do so, and they wanted federal help to bring uninterested states in line.

          Matter of Heff, 197 U.S. 488 (1905)Matter of Heff, 197 U.S. 488 (1905)

          “In the United States, there is a dual system of government, national and state, each of which is supreme within its own domain, and it is one of the chief functions of this Court to preserve the balance between them.

          The general police power is reserved to the states subject to the limitation that it may not trespass on the rights and powers vested in the national government.

          The regulation of the sale of intoxicating liquors is within the power of the state, and the license exacted by the national government is solely for revenue, and is not an attempted exercise of the police power.

          The Act of January 30, 1897, 29 Stat. 50, prohibiting sales of liquors to Indians, is a police regulation, and does not apply to an allottee Indian who has become a citizen under the Act of February 8, 1887.”

          Without the amendment, the states that wanted prohibition could not have imposed it on the states that didn’t.

          This case, by the way, is where “Kickapoo Joy Juice” came from…

          1. Here’s Daniel Okrent, unlike you an actual expert on the history of Prohibition, on why prohibitionists wanted a constitutional amendment:

            “People said: Well why don’t you just pass a law? Why doesn’t Congress pass a law that the president can sign and we can get rid of drinking that way? There were a couple of reasons why the Prohibitionists didn’t want to do that, but the primary reason was that a law can be undone by the next Congress–whereas, up until that point, no one had ever repealed a constitutional amendment. Once in the Constitution, it seemed that it was going to be there forever.”


            I mean, the state of constitutional law wasn’t as clear as you think it was. Heff was a statutory case, and prohibitionists would have had an argument under Champion v. Ames that a national ban was constitutional.

            But the main point is, THAT WASN’T WHAT THEY WERE CONCERNED ABOUT. They wanted it in the Constitution for other reasons!

            1. “There were a couple of reasons why the Prohibitionists didn’t want to do that”

              IOW, they weren’t limited to just wanting it cast in stone.

              Seriously, you’re going to appeal to Champion v. Ames to establish that the federal government can regulate drinking within a state? Have you read it?

              Champion v. Ames, while it would permit the federal government to assist a state that wanted to impose prohibition on its own citizens, in no way would have enabled the dry states to impose prohibition on wet states.

              That’s the key thing the Prohibition amendment gave the temperance movement: Nobody was permitted to opt out!

              And, yes, Matter of Heff was a constitutional case. Sure, there were a couple of statutes involved, but there was a key constitutional question, and it is right on point for Prohibition: Could the federal government make it illegal to provide a citizen alcohol? Within state territory? Rather than an Indian who was not a citizen?

              No, the federal government could not, because, constitutionally, it lacks the general police power, it can only reach citizens within a state under specific grants of power.

              1. Matter of Heff applied what we now call the Ashwander presumption. It didn’t decide the constitutional issue.

                1. Hello, I not only linked to it above, I quoted the relevant language. But, here, I’ll quote it again:

                  “The general police power is reserved to the states subject to the limitation that it may not trespass on the rights and powers vested in the national government.

                  The regulation of the sale of intoxicating liquors is within the power of the state, and the license exacted by the national government is solely for revenue, and is not an attempted exercise of the police power.”

                  How much clearer do you want? The regulation of sale of intoxicating liquors is a power reserved to the states. And, what doesn’t the federal government have any claim to exercise?

                  That’s right, the powers reserved to the states.

                  The only exception the Court acknowledged was that of Indians who were not citizens. Pursuant to the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” Which is NOT taken to be a power to regulate commerce within a state, between citizens.

                  Now, in Matter of Heff, there was the statutory question of whether citizenship had yet been granted. The consitutional issue was, whether having been granted, Congress could regulate the sale.

                  And the answer, constitutionally, was NO.

                  1. Brett, you do know what dicta is?

                    1. Dilan, if the federal government had the power to regulate commerce in alcohol within a state, between citizens, would the statutory point concerning if the guy were a citizen have mattered?

                      It’s not dicta.

    2. I’ve got a fundamental disagreement on what “regulate” means. I disagree with using it to prohibit something. This means I disagree with the Controlled Substances Act as a whole. This only applies to the Federal Government. If a State wants to prohibit something, that is another matter entirely.

  3. Thomas would do well to remember his own words in Lawrence v. Texas that a law may be “uncommonly silly” and still be beyond the powers of the judiciary to overturn. The fact that federal marijuana law is a shambles does not mean it is unconstitutional.

    1. Well, no. However, in this case it’s both. It’s not unconstitutional because it’s a shambles, but because it just happens to be outside of the federal government’s enumerated powers.

    2. In Thomas’s defense (not sure I ever thought I’d write those words), it’s not clear that he’s taking a position that there’s a Constitutional issue here, or just pointing out that the political branches should get their act together.

    3. Right, Thomas’s argument in his dissent to Gonzales v. Raich was that the law involved was simply unconstitutional as applied, since something “that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market” cannot be regulated as interstate commerce.

      His argument here is that the specific rationale used by the majority opinion in said case to uphold the constitutionality of the law no longer obtains.

      1. What’s interesting about his argument is it is in direct contradiction to Wickard v. Filburn. Or, in other words, he may believe Wickard v. Filburn was wrongly decided. I am of the opinion it was wrongly decided. Overturning this case would have far reaching impacts.

    4. I have to agree. What could the court do? The only reasoning I can see is that the courts would rule either

      A: Federal law trumps all state laws. All state marijuana laws are invalid until the Feds actually change their regulations.
      B: The inconsistent application is a violation of the equal protection. However, this will would be little more than a public shaming.

      While either ruling might get the FDA off their hineys to actually make a change, I don’t think we would like what they would do. After all, as many commenters have noted, the modern FDA is so restrictive that if they were released today, Aspirin would never be approved and Tylenol would not ever get off prescription. Getting them to allow marijuana would be a Sisyphean task

      Every other possible ruling that I can see would be a nonsensical mashup of logic that would exceed Roe vs Wade in making stuff up post-hoc to justify a desired policy

      1. A: Federal law trumps all state laws.

        This assumes the constitution allows the federal law in the first place. There are limits to what the federal government can do.

        B: The inconsistent application is a violation of the equal protection.

        I agree with this argument. Saying something is enforceable or not based on which state it occurs in is bad policy.

        1. Not just bad policy, since the federal rights of citizens don’t vary depending on which state they’re in, it IS an Equal Protection violation.

      2. Equal Protection has never been held to apply to making things illegal in some states but not others.

        Within states, local ordinances prohibiting things within a locality but not elsewhere have never been considered to violate the Equal Protection Clause.

        And federal laws that assist states that want the applicable policy and not states that don’t want to have a long history with many cases supporting their validity. Before nationwide alcohol prohibition, the Supreme Court said the federal government had the power to assist states that wanted to prohibit alcohol, but not the power to prohibit it nationwide itself. That’s why the Prohibition Amendment was passed.

        Many current federal laws apply only to states where the underlying act is illegal by state law. The Mann Act is an example.

        In general, federal laws assisting states agreeing with a policy have fewer constitutional problems than nationwide federal laws. You may not like drug prohibition. But a drug prohibition policy applicable only to states that want it is easily constitutionally supportable even under a very narrow reading of commerce clause jurisdiction. It poses no equal protection problem.

  4. … or perhaps the court could simply rectify their mistake in Wickard v Filburn and restore the proper balance between intra-state commerce and inter-state commerce regulation. That would kix most of these drug war problems right up.

    1. That’s probably a bridge too far, the only Justice on the Court who would even seriously contemplate something like that is probably Thomas.

      The problem is that the Justices who’d actually care that Wickard was a constitutional mistake, also care about upsetting apple carts. And this particular apple cart is piled really high.

  5. I’m somewhat confused here. Does this mean Thomas is for or against Critical Raich Theory?

  6. Philadelphia lost its case by allowing too many exceptions to its adoption policy. Similar principle applies here.

    1. The thing is (and this is why Thomas properly makes it a “statement” rather than a dissent), this is an issue that requires real briefing and argument. How many exceptions is too many? What’s the test? What other federal statutory schemes might be affected?

      1. I explain why Thomas’ opinion wasn’t actually a dissent below. His views don’t have anything to do with the particular case at hand.

  7. Justice Thomas’ view isn’t inconsistent with the denial of suit.

    I understand Justice Thomas’ suggestion to interpret Raich v. Ashcroft to create a rough equivalent to the Court’s interpretation of Smith’s “general applicability” rule for religion, so that if Congress or perhaps prosecutors start creating lots of exception, the regulatory scheme is no longer comprehensive and the Commerce Clause no longer supports federal athority to regulate simple intrastate possession .

    In this case however, even if Raich were interpreted this way it wouldn’t affect Congress’ taxing power. Congress’ power to tax incomes, “from whatever source derived,” is independent of any interstate commerce considerations. So Thomas’ views about the Commerce Clause would have no effect on this case, and certiorari was properly denied.

  8. Raich was incorrectly decided, as was Employment Division v. Smith. What do these cases have in common? Both were written by Justice Scalia, both decisions were inconsistent with Scalia’s originalist views in previous and especially subsequent cases on the scope of the Free exercise and Interstate Commerce clauses, and both involved the use of illicit intoxicants. Methinks Antonin had a blind spot when it came to drugs (and gay sex) that allowed him to disregard his jurisprudential principles.

    1. Scalia didn’t claim to be a consistent originalist, he was only one when it was convenient. (Though he wouldn’t have characterized it that way, it’s the truth.)

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