‘Half-In, Half-Out’: Clarence Thomas Calls Out Marijuana Laws, Suggests They Might Not Be Constitutional

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Michael Ginsberg Congressional Correspondent
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Associate Supreme Court Justice Clarence Thomas suggested in a Monday dissent that Congress should revisit the United States’ patchwork of marijuana laws or courts might strike them down.

The federal government’s current approach is a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana,” Thomas wrote in his dissent from a denial of certiorari in the case Akimbo, LLC v. United States. Akimbo, LLC, a Colorado-based marijuana company, was attempting to prevent the Internal Revenue Service (IRS) from investigating its tax deductions. The IRS claimed that the company violated laws preventing it from deducting business expenses associated with trafficking controlled substances, according to the law firm Bailey & Glasser LLP.

Marijuana is considered by federal law to be a Schedule I substance, meaning that it has no accepted medical use and is likely to be abused. The Controlled Substances Act of 1970, which created the scheduling system, also outlawed marijuana at the state and national levels.

The Obama administration announced in 2009, however, that states would be allowed to set their own medical marijuana laws without federal interference. 36 states allow the use of marijuana for medicinal purposes, according to the National Conference of State Legislatures, while 18 allow it for recreational use. (RELATED: Connecticut Governor To Legalize Recreational Pot To Move Beyond ‘Period Of Incarceration And Injustice’)

This conflict between state and federal law poses a problem for Thomas, however.

This contradictory and unstable state of affairs strains basic principles of federalism and conceals traps for the unwary,” he wrote. “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.'”

“Legality under state law and the absence of federal criminal enforcement do not ensure equal treatment.

“Petitioners have found that the Government’s willingness to often look the other way on marijuana is more episodic than coherent,” Thomas notes.

He suggests that the federal government “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,'” since it is no longer willing to enforce a blanket ban on marijuana use.

Congressional Democrats introduced the MORE Act in 2019 to remove marijuana from Schedule I. It passed in the House of Representatives but failed in the Senate. Democratic New York Rep. Jerrold Nadler reintroduced the bill in May.