The federal ban on marijuana may not be necessary — or appropriate — given the government’s “contradictory and unstable” approach, U.S. Supreme Court Justice Clarence Thomas wrote in a strongly-worded statement Monday.
“A prohibition on intrastate use or cultivation of marijuana may no longer be necessary or proper to support the federal government’s piecemeal approach,” wrote Thomas, who was appointed by President George H.W. Bush and is considered one of the most conservative justices on the bench.
Although marijuana is illegal federally, 36 U.S. states allow medical marijuana use and 18 of those states allow recreational use. Colorado voters legalized medical use in 2000 and adult recreational use in 2012.
“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,” the statement continued.
Thomas’ statement came as the Supreme Court declined to hear a case brought by the owners of Standing Akimbo, a Denver medical marijuana dispensary, which appealed a tax decision that denied them federal tax deductions available to other types of business owners.
Federal tax law doesn’t allow a tax deduction or credit for expenses incurred by businesses whose model “consists of trafficking in controlled substances” in violation of federal or state law.
The 10th U.S. Circuit Court of Appeals ruled in favor of the Internal Revenue Service in April, finding that the IRS didn’t overstep its authority by auditing the dispensary and that owners of marijuana businesses aren’t entitled to federal tax deductions.
“In other words, petitioners have found that the government’s willingness to often look the other way on marijuana is more episodic than coherent,” Thomas wrote of the denial of federal tax deductions to the owners of Standing Akimbo.
Thomas also criticized a number of other government policies as sending “mixed signals” to states and marijuana businesses, including a federal prohibition on banks and other financial institutions serving businesses that violate federal law, which forces many cannabis businesses to deal in cash.
“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,’” Thomas wrote.
“I could go on,” the justice added.
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