Justice Thomas: Pot Prohibition No Longer 'Necessary or Proper'

Supreme Court Justice Clarence Thomas: "One can certainly understand why an ordinary person might think that the Federal government has retreated from its once-absolute ban on marijuana." (2017 image via Waco Tribune-Herald)

The most conservative justice on the U.S. Supreme Court, Clarence Thomas, says federal cannabis prohibition "may no longer be necessary or proper."

Thirty years ago I predicted something like this would happen.

But first the news: The Court rejected the appeal of a case involving a dispensary - Standing Akimbo in Denver - targeted by the IRS for violating the 280E federal tax code. The last time the Court ruled on cannabis was in 2005 in the Gonzalez v. Raich case, which went against patient Angel Raich. Thomas sided with the minority in that 6-3 decision,

"Whatever the merits of Raich when it was decided, federal policies of the past 16 years have greatly undermined its reasoning," Thomas writes in a statement on behalf of the Court. "Once comprehensive, the federal government's current approach is a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana.

"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 DC’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.'

"That policy has broad ramifications given that 36 states allow medicinal marijuana use and 18 of those states also allow recreational use.

"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 andother ordinary and necessary business expenses, such as rent and employee salaries. 

Justice Clarence Thomas: "A prohibition on intrastate use or cultivation of marijuana may no longer be necessary or proper." 

"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. 

"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. In other words, petitioners have found that the government’s willingness to often look the other way on marijuana is more episodic than coherent. 

"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. Or petitioners and similar businesses may find themselves on the wrong side of a civil suit under the Racketeer Influenced and Corrupt Organizations Act. 

"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,’ 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.' A prohibition on intrastate use or cultivation of marijuana may no longer be necessary orproper to support the federal government’s piecemeal approach."

Tokin' Thomas, the true "High Court" justice
Tokin’ Thomas, the true "High Court" justice


A High Times Story

I was news editor of High Times in 1991 when Thomas was nominated for the Supreme Court. In 1989, when he was nominated for the U.S Court of Appeals, Thomas revealed he'd smoked pot several times while attending Holy Cross from 1968-1971. It did not prevent him from being confirmed.

Just four years earlier, Daniel Ginsberg, also nominated for the High Court, did not survive such an admission. 

In a column much like this one, I wrote in the January 1992 issue:

"With all of this in mind, I urged High Times to back Tokin' Thomas, the true 'High' Court justice, in an editorial. My suggestion was met with unanimous disapproval. After observing the Anita Hill hearing, I changed my tune on Thomas."

I continued with this prediction:

"But still I hold that it's to our advantage as pot smokers to have someone on the Court who has smoked marijuana."

And then concluded:

"I'd like to believe Thomas will be sympathetic to our cause when faced with issues that concern us most."

Now, if only the Court would rule on a possession case, we could see an end to prohibition - just like the Mexican High Court did a few years ago. It would likely have Thomas' approval. 


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Steve Bloom

Steve Bloom

Publisher of CelebStoner.com, former editor of High Times and Freedom Leaf and co-author of Pot Culture and Reefer Movie Madness.