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Clarence Thomas Says Federal Marijuana Laws Outdated

The US Supreme Court last upheld marijuana prohibition in 2005, and declined to hear a case last year

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Conservative Supreme Court Justice Clarence Thomas said on Monday that federal marijuana laws need updating. The Supreme Court last upheld prohibition in 2005, and last year, declined to hear another challenge to it.

Thomas, one of the Supreme Court‘s most conservative justices, said that because of the hodgepodge of federal policies on Cannabis, federal laws against its sale or cultivation may no longer make sense.

“A prohibition on interstate use or cultivation of marijuana may no longer be necessary or proper to support the federal government’s piecemeal approach,” he wrote.

Thomas’ views came as a broad statement on Cannabis policy. But the court declined to hear the appeal of a Colorado medical marijuana dispensary. It had been denied federal tax breaks other types of businesses are allowed.

Thomas said the Court’s 2005 ruling upholding federal laws making Cannabis illegal may now be outdated, reports NBC News.

Thomas: ‘Half-In, Half-Out Regime’

He specifically discussed a 2005 ruling in Gonzales v. Raich. In that case, the court narrowly determined that the federal government could enforce prohibition against cannabis in California. The Supremes based that based the ruling on the federal government’s authority to regulate interstate commerce.

“Federal policies of the past 16 years have greatly undermined its reasoning,” Thomas said. “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,” he said. Thomas added that “though federal law still flatly forbids the intrastate possession, cultivation, or distribution of marijuana…the Government, post-Raich, has sent mixed signals on its views.”

The Cole Memorandum

The DOJ under President Obama twice issued memorandums signaling that the government would tolerate certain marijuana-related activity. The only requirement was it was lawful in the state where it took place. The so-called Cole Memorandum laid out enforcement priorities for federal prosecutors. The memo signaled that low-level marijuana offenses shouldn’t be pursued by federal agents.

“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,” Thomas wrote.

Thirty-six states now allow medical marijuana, and 18 also allow adult adult use. But federal tax law does not allow marijuana businesses to deduct their business expenses. Cannabis businesses also have trouble getting bank accounts.

“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,” Thomas said.

‘More Episodic Than Coherent’

The DOJ has instructed the nation’s federal prosecutors not to pursue cases against marijuana businesses that follow state law. Since the Obama Administration, Congress has prohibited the DOJ using funds to prevent states from carrying out their own laws.

But the IRS continues to enforce its own rules against growers and dealers. This hampers the state-legal businesses when it comes to paying taxes and getting bank accounts.

The federal government’s “willingness to look the other way on marijuana is more episodic than coherent,” Thomas said.

Thomas also noted that many state-legal marijuana businesses operate on a largely cash-only basis. That’s because of federal restrictions on using banks for dealing in a controlled substance. That makes those businesses “understandably enticing to burglars and robbers.”

SAFE Banking Act Already Passed House

The Secure and Fair Enforcement (SAFE) Banking Act would protect banks that service state-legal marijuana businesses from the feds. SAFE already passed the House this Congress. It could be folded into federal legalization bill now being drafted in the Senate, according to Marijuana Moment.

“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,” Thomas wrote. “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 or proper to support the Federal Government’s piecemeal approach,” the justice concluded.