United States Supreme Court Justice Clarence Thomas has sharply criticized the federal government’s inconsistent approach to marijuana policy, stating that federal prohibition “may no longer be necessary or proper” given evolving state laws and enforcement practices.
In a statement made on June 28, 2021, Justice Thomas argued that the federal government’s “half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana” creates confusion and undermines core principles of federalism. His remarks were made in connection to the Court’s decision not to hear a tax case involving a Colorado marijuana dispensary, during which he questioned the continued validity of federal restrictions given the government’s inconsistent enforcement.
“This contradictory and unstable state of affairs strains basic principles of federalism and conceals traps for the unwary,” 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.”
Justice Thomas’s statement is gaining renewed attention in light of a recent ruling from the 1st U.S. Circuit Court of Appeals that rejected a challenge to the federal marijuana ban. That case—brought by several marijuana businesses including Canna Provisions and Verano Holdings—sought to overturn federal prohibition by arguing that congressional inaction and widespread state legalization have effectively abandoned the intent to regulate all marijuana commerce.
Although the appeals court upheld the federal government’s authority under the Controlled Substances Act and reaffirmed the 2005 Supreme Court decision in Gonzales v. Raich, the plaintiffs have signaled plans to appeal to the U.S. Supreme Court. Should the Court accept the case, it would mark the first time in nearly 20 years that the justices reexamine the constitutionality of marijuana prohibition.
With Justice Thomas already on record expressing doubts about the federal government’s justification for continued prohibition, his remarks could carry significant weight as the nation’s highest court considers whether to take up the case.
