Supreme Court Justice Clarence Thomas surprised some people Monday when he declared that federal laws against the use or cultivation of marijuana may no longer make sense. We personally don't believe they ever made sense.

"A prohibition on interstate use or cultivation of marijuana may no longer be necessary or proper to support the federal government's piecemeal approach," he wrote.

Thomas's comments came after the Supreme Court declined to hear a case brought by the owners of Standing Akimbo, a medical marijuana dispensary in Denver. Standing Akimbo — gotta love that name — was denied federal tax deductions available to other types of businesses because of its connection to the demon weed.

Thomas went on to say:

Once comprehensive, 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.

[ ... ]

Under this rule, a business that is still in the red after it pays its workers and keeps the lights on might nonetheless owe substantial federal income tax.

The tax code provision preventing marijuana businesses from deducting expenses denies them “equal treatment" under the law. Marijuana businesses also can't obtain bank services because of federal restrictions, which requires that they operate on cash-only basis. Thomas observed that this makes this more vulnerable to robberies.

Thomas blasted the “government's recent laissez-faire policies on marijuana and the actual operation of specific laws." It's true: Thirty-six US states permit the use of medical marijuana, and recreational use is legal is 18 of those states. Colorado legalized medical use in 2000 and mellow times for adults in 2012. Yet, marijuana remains illegal federally. The Obama administration told Department of Justice prosecutors it wasn't the best use of their time to go after stoners citizens obeying state law, but then buzzkill in chief Donald Trump was elected and Jeff Sessions was the new, terrible attorney general. The supposed states' rights advocate — or more aptly, rightwing hypocrite — declared marijuana one the top drivers behind violent crime. Sessions must've thought Reefer Madness was a documentary.

In 2005, the Supreme Court upheld federal laws prohibiting marijuana possession, even for medical use. The majority, which included all liberal members of the Court, determined that Congress, under the Commerce Clause of the Constitution, could criminalize the production and use of homegrown cannabis regardless of individual state law.

Thomas wrote in his dissent:

Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers.

He also added this hilarious bit of weirdness: "If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States." Quilting bees? The brother should get out more. It's like he sits home all day smoking weed.

Thomas now argues that the “federal policies of the past 16 years have greatly undermined [the 2005 case's] reasoning," as the government's “current approach is a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana."

If the Government is now content to allow States to act 'as laboratories, then it might no longer have authority to intrude on '[t]he States' core police powers . . . to define criminal law and to protect the health, safety, and welfare of their citizens.

So, wait, is Clarence Thomas finally right about a thing? He's served (mostly disgracefully) on the Court since 1991, so the law of averages would demand that he stumbled onto the side of decency at least once. He might think federal marijuana laws threaten the principles of federalism, but that same reasoning likely means he's going to bone us on voting laws. Say goodbye to what's left of the VRA.

[The Grio]

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Stephen Robinson

Stephen Robinson is a writer and social kibbitzer based in Portland, Oregon. He writes reviews for the A.V. Club and make believe for Cafe Nordo, an immersive theatre space in Seattle. He's also on the board of the Portland Playhouse theatre. His son describes him as a “play typer guy."

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