Supreme Court Justice Clarence Thomas in sometimes obscure legalese pointed out on Monday what has been apparent to anyone watching the federal government’s treatment of marijuana prohibition over the past decade: It’s incoherent.
Thomas also, not so subtly, suggested that the federal government should change its marijuana policy as more and more states choose legalization — or, if it doesn’t, that someone should consider bringing a case to the justices so that they can address the issue themselves.
It was definitely a biting bit of writing from a justice who doesn’t mind standing alone. It wasn’t, however, necessarily a pro-legalization statement. The reality is far more nuanced — and a part of Thomas’s larger effort to reign in the federal government across the board.
It was definitely a biting bit of writing from a justice who doesn’t mind standing alone. It wasn’t, however, necessarily a pro-legalization statement.
“Once comprehensive, the Federal Government’s current approach is a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana,” Thomas wrote on Monday of federal marijuana policy. Later in the 5-page statement, Thomas called the approach “piecemeal” and wrote that, as such, it might no longer be constitutional for the federal government to try to control what’s happening with marijuana purely within a state’s borders.
The statement was in response to a case out of Colorado challenging federal tax rules being applied differently to marijuana-related businesses legal under state law than to other legal businesses — a case the justices would not to be taking, the court announced without explanation.
Calling the broader situation a “contradictory and unstable state of affairs,” Thomas wrote that the current legal landscape “strains basic principles of federalism and conceals traps for the unwary.” To make his point, Thomas drew on a series of these “traps” that he asserts are set for people using or selling marijuana because of their reliance on state laws that make it legal:
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.”
Thomas went on to note also how merely having both marijuana and a firearm could lead to a person “find[ing] himself a federal felon.”
The whole statement is a strong argument, to be sure, but it’s not new from Thomas. This has been his established marijuana position since 2005 — he was just pointing out on Monday how much more unconstitutional he believes the situation is now. More importantly to Thomas, addressing the gulf between the country’s de facto and de jure marijuana policy fits within a larger project of his (and other conservatives) that would see a reduced role for the federal government in many areas of the law.
First, the marijuana. Back in 2005, the Supreme Court ruled against two people authorized in California to use medicinal marijuana, one of whom had six marijuana plants seized from her home and destroyed. Her homegrown plants, allowed under state law, could be taken by the federal government because the federal law banning all marijuana was constitutional under the reasoning that even in-state marijuana growth would “substantially affect interstate commerce.”
The case, United States v. Raich, required the court to look at two sections of the Constitution — the Commerce Clause, which allows congressional regulation of commerce between the states, and the Necessary and Proper Clause, which authorizes Congress to pass laws that are “necessary” to achieving other constitutional grants of authority and “proper” under the broader constitutional scheme. (Yes, it’s far more complicated than that, but those are the general guardrails).
The court held that Congress could decide that in-state marijuana growth still affects the national market for marijuana and, as such, ban all marijuana — even if it meant someone could have six plants seized despite California saying she could have them for medical use and despite the fact that she was not putting those plants into commerce.
Thomas was not happy.
“In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana,” he wrote in his dissent, adding that the court was “rewriting” the Commerce Clause in order to find a way to make it OK for the feds to take people’s marijuana plants. When looking at whether the ban was “necessary and proper,” Thomas found it wrong that the court treated all marijuana growers the same. Surely, Thomas reasoned, the case looks different if the group is more specifically labeled as “local growers and users of state-authorized, medical marijuana.” But more broadly, Thomas also suggested the breadth of the limits that his argument could place on federal drug authority: This Court has carefully avoided stripping Congress of its ability to regulate interstate commerce, but it has casually allowed the Federal Government to strip States of their ability to regulate intrastate commerce—not to mention a host of local activities, like mere drug possession, that are not commercial. In other words, Thomas suggested that “mere drug possession” — not just of marijuana — and “a host of [noncommercial] local activities” could be outside the scope of congressional authority to regulate, as well as most commercial activity that stays within a state’s borders. This whole line of reasoning, in other words, is not about Thomas wanting marijuana to be legalized. It’s not even necessarily about ending federal marijuana prohibitions. This is, rather, a part of Thomas’s larger belief — and legal writings — that seek to limit the areas where federal legislation is authorized. This whole line of reasoning, in other words, is not about Thomas wanting marijuana to be legalized. It’s not even necessarily about ending federal marijuana prohibitions. In addition to Raich, this has come up in three major cases in the past 30 years: one addressing a criminal provision in the Gun Free School-Zones Act; a second addressing a provision in the Violence Against Women Act that allowed gender-motivated violence survivors to sue in court; and, mostly recently, the 2012 decision that ultimately upheld the Affordable Care Act’s individual mandate as a “tax” — but also held that it was not constitutionally permitted under the Commerce Clause and Necessary and Proper Clause. Thomas wrote separately in each case, arguing that the Supreme Court’s rulings on the Commerce Clause had gone astray, allowing Congress to pass all manner of questionable legislation. Specifically, his ever-louder argument is that the “substantial effects” test that was essential to the decision in Raich “has encouraged the Federal Government to persist in its view that the Commerce Clause has virtually no limits.” Notably, Thomas didn’t discuss those non-marijuana cases in Monday’s statement (aside from a stray, unrelated mention about tax issues in a footnote). Thomas has absolutely put a spotlight on the incoherence of federal marijuana policy. His vote in any future case almost certainly would limit the federal government’s ability to act against state legalization efforts. But it should be remembered that this isn’t exactly a gift to pro-legalization Democrats. It’s all part of a decades-long effort to limit congressional authority — a position often at odds with many Democrats’ broader goals.
Chris Geidner
Chris Geidner is a journalist and MSNBC columnist whose Law Dork newsletter covers the Supreme Court, law and politics. His more than two decades in journalism include widely recognized coverage of LGBTQ issues, the criminal legal system and other complex legal and political questions. Geidner also contributes to Grid and Bolts and previously worked as the Supreme Court correspondent and legal editor at BuzzFeed News, as well as for The Appeal and Metro Weekly. 
