Jun 28, 2021 - Politics & Policy

Clarence Thomas says federal marijuana ban may no longer be necessary

Supreme Court Associate Justice Clarence Thomas attends the ceremonial swearing-in ceremony.
Photo: Tasos Katopodis/Getty Images

U.S. Supreme Court Justice Clarence Thomas wrote Monday that the federal prohibition on marijuana may no longer be needed because of the government's "mixed signals" on the issue.

Why it matters: Thomas, one of the court's conservative justices, wrote the opinion Monday as the court declined to hear the appeal of a Colorado medical marijuana dispensary that was denied certain federal tax breaks.

What he's saying: Thomas said the court's 2005 ruling in Gonzales v. Raich, which upheld federal laws making marijuana possession illegal, may now be out of date.

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

Thomas noted that Congress has prohibited the Justice Department from using its funds to pursue state-legal medical marijuana businesses. But the IRS has continued to enforce its rules against those businesses.

  • The government's "willingness to often look the other way on marijuana is more episodic than coherent," Thomas wrote.
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