U.S. marijuana ban 'may no longer be necessary' - Justice Thomas

REUTERS/Shannon Stapleton
REUTERS/Shannon Stapleton
  • Thomas says uneven enforcement sets "traps for the unwary"
  • Supreme Court turns down Colorado dispensary's appeal in tax dispute

(Reuters) - U.S. Supreme Court Justice Clarence Thomas on Monday said the federal ban on the cultivation and use of marijuana within states "may no longer be necessary or proper" and that inconsistent enforcement led to "traps" for marijuana businesses.

Thomas issued the statement in connection with the court's refusal to hear an appeal by a Colorado marijuana dispensary, Standing Akimbo LLC, to block the Internal Revenue Service from obtaining information about its business.

"I believe that Justice Thomas was explaining to Congress the problem with the current 'mixed messages' being sent regarding cannabis," James Thorburn of Thorburn Law Group, a lawyer for Standing Akimbo, said in an email. "The court is giving Congress a chance to fix the problem. If the problem is not fixed, the court may not be so charitable next time in considering a certiorari petition."

According to court filings, the Internal Revenue Service is investigating whether Standing Akimbo improperly accounted for business expenses like rent and salaries when calculating its taxable income, which the tax code does not permit for businesses dealing in controlled substances. Colorado has legalized medical and recreational use of marijuana.

Standing Akimbo has argued that the 4th Amendment to the U.S. Constitution protected its reasonable expectation of privacy with respect to the information sought by the IRS because it was filed with Colorado's Marijuana Enforcement Division pursuant to a state law that criminalizes its disclosure.

The 10th U.S. Circuit Court of Appeals rejected that argument last year, finding that the Colorado law did not apply to official investigations of unlawful activity by marijuana businesses. The court said that would include the allegedly improper tax filing.

The Supreme Court, as is its usual practice, did not say why it turned down the case. In his separate statement, Thomas noted that the Supreme Court had upheld federal prohibition of marijuana even within states in its 2005 decision in Gonzales v. Raich, on the grounds that allowing local use would undermine a "comprehensive" federal regime.

The justice said that reasoning may no longer apply.

"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. "This contradictory and unstable state of affairs strains basic principles of federalism and conceals traps for the unwary."

Thomas noted that many states have legalized marijuana, and that beginning in 2009, the Justice Department had adopted a policy of not interfering in states' marijuana legalization programs.

"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," the judge wrote. "One can also perhaps understand why business owners in Colorado, like petitioners, may think that their intrastate marijuana operations will be treated like any other enterprise that is legal under state law."

However, Thomas wrote, Standing Akimbo's case showed that the government's "willingness to often look the other way on marijuana is more episodic than coherent."

The case is Standing Akimbo LLC v. United States, U.S. Supreme Court, No. 20-645.

For Standing Akimbo: James Thorburn of Thorburn Law Group

For the government: Acting Solicitor General Elizabeth Prelogar and Nathaniel Pollock of the U.S. Department of Justice Tax Division

Read more:

IN BRIEF: IRS can get medical marijuana dispensary's records from state – 10th Circuit

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Brendan Pierson reports on product liability litigation and on all areas of health care law. He can be reached at brendan.pierson@thomsonreuters.com.