Supreme Court Justice Clarence Thomas questions federal marijuana prohibition in IRS case

John Fritze

WASHINGTON  – One of the most conservative Supreme Court justices asserted Monday that federal prohibitions on marijuana "may no longer be necessary" if the government looks the other way amid widespread legalization of the drug in states.

If the federal 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 states' core police powers, Associate Justice Clarence Thomas wrote.

"A prohibition on intrastate use or cultivation of marijuana may no longer be necessary or proper to support the federal government’s piecemeal ap­proach," Thomas wrote of the court’s decision to punt on a tax case involving a marijuana dispensary in Colorado.

The medical dispensary is legal under Colorado law, but the U.S. tax code prohibits businesses that sell controlled substances prohibited by federal law from writing off certain expenses. When the Internal Revenue Service issued summonses to Colorado's Department of Revenue for information about the dispensary's deductions, the plaintiffs sued to stop the disclosure of those records. 

The Denver-based U.S. Court of Appeals for the 10th Circuit ruled against the dispensary. The Supreme Court declined Monday to review that decision.

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Thomas' statement doesn’t have the force of law, but it may signal to advocates how he would rule in a future case. 

Thomas noted the Supreme Court's 2005 decision in Gonzales v. Raich in which a majority concluded that Congress’ power to regulate interstate commerce and "the watertight nationwide prohibition" on marijuana also allowed it to prohibit local cultivation and use.  

Supreme Court Justice Clarence Thomas delivers a keynote speech during a dedication of Georgia new Nathan Deal Judicial Center Tuesday, Feb. 11, 2020, in Atlanta.

But now, he said, 36 states allow medici­nal marijuana and 18 also permit recrea­tional use of the drug. Thomas pointed to a memo from the Justice Department during the Obama administration that announced the federal government would not challenge state laws on the medical and recreational use of marijuana in most circumstances.

"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.