Justice Thomas says feds have been ‘half-in, half-out’ on marijuana laws

Supreme Court Justice Clarence Thomas this week expressed concern about the federal government’s treatment of marijuana, saying it has been “piecemeal” and suggested states should have the ability to control their own laws regarding the controlled substance.

“A prohibition on intrastate use or cultivation of marijuana may no longer be necessary or proper to support the federal government’s piecemeal approach,” the conservative justice wrote in a concurrence on Monday.

Justice Thomas’ concurrence was written in agreement with the court’s rejection of a case brought by Colorado cannabis dispensaries. The dispensaries had asked the justices to review the IRS’ denial of their deductions of certain business expenses and credits as other industries and companies are able to do under federal law.

Despite rejecting the challenge, the senior justice said the federal government’s position on pot has changed — and become muddled — since the Supreme Court issued its ruling in Gonzales v. Raich in 2005, which said Congress has the authority to regulate the cultivation of marijuana.

Since then, the Justice Department has stopped intruding on state laws regarding marijuana, according to memorandums in 2009 through 2013. And in 2009, Congress authorized the District of Columbia’s government to decriminalize marijuana.

“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,” Justice Thomas wrote.

Thirty-six states permit the use of medical marijuana, and 18 of those states also permit its recreational use.