Clarence Thomas, one of the most conservative Supreme Court justices, said Monday that due to the hodgepodge of federal policy on marijuana, federal laws against its use or cultivation may no longer make sense.
“A ban on the interstate use or cultivation of marijuana may no longer be necessary or appropriate to support the federal government’s piecemeal approach,” he wrote.
His views came when the court dismissed the appeal of a Colorado medical marijuana dispenser that was denied federal tax breaks that other businesses are allowed.
Thomas said the 2005 Supreme Court ruling upholding federal laws making marijuana possession illegal may now be out of date.
“Federal politics over the past 16 years has severely undermined their reasoning,” he said. “The federal government’s current approach is a half-in-half-out regime that both tolerates and prohibits the local use of marijuana.”
36 states now allow medical marijuana and 18 also allow recreational use. But federal tax law doesn’t allow marijuana companies to deduct their business expenses.
“Under this rule, a company that is still in the red and keeps the lights on after paying its workers could still owe a significant federal income tax,” said Thomas.
The Justice Department has ordered the country’s prosecutors not to prosecute marijuana companies that follow state laws. And since 2015, Congress has banned the Justice Department from spending federal funds to prevent states from implementing their own laws.
But the IRS continues to enforce its own rules against breeders and dealers.
The “willingness of the federal government to turn a blind eye to marijuana is more episodic than coherent,” said Thomas.
