Justice Thomas and Pot

CNBC reports that governmental behavior is being noticed in the judicial branch. The focus is upon comments of Justice Clarence Thomas of the United States Supreme Court. Over the years, he has been derided by the press, largely for not asking questions during oral arguments. But, appointed in 1991, Justice Thomas is the senior member of this court, and he brings an interesting perspective to things. His writing was most recently here in Near Unanimity, Untethered (June 2021), an advocacy for standards and principles to guide the law. His special concurrence described in Toto, We're Not in Kansas Anymore (March 2020) regarding federal preemption is also worthy of note.

The recent CNBC article focuses upon Thomas' comments regarding Gonzales v. Raich, 545 US 1 (2005). There, the Court concluded that federal law regarding marijuana could be enforced despite contrary state laws. One might expect the case to be heavy with Supremacy Clause discussion, but it is all about interstate commerce. The Court's decision in Wickard v. Fillburn plays predominantly in the analysis. Wickard is the foundation of the Court's conclusions regarding modern interpretation of the Interstate Commerce Clause, and has its share of critics. It is foundational to the Court's conclusion that your government can compel you to purchase products or services you do not desire. See NFIB v. Sebelius, 567 U.S. 519 (2012).

CNBC's analysis of the comments regarding Raich are presented in parallel with a recent decision by the Court not to hear a case regarding tax deductions claimed by marijuana businesses in Colorado. The discussion regards whether Justice Thomas' perspectives might signal coming change in the court's perspective on marijuana. Justice Thomas was seen as critical of the inconsistent state laws regarding the production, possession, and sale of pot. He suggested that

Note that this suggests interstate commerce as did Wickard and Raich. Justice Thomas was critical of the federal law regarding marijuana. Included is the clear and definitive "marihuana is illegal" that comes from its listing in Schedule I by the Food and Drug Administration (FDA) and Drug Enforcement Agency (DEA). Inclusion on that list, by definition, means that a substance (pot) is a "drug() with no currently accepted medical use and a high potential for abuse. " Thus, the very term "Medical Marijuana" may be an oxymoron. (2015).

In the recent past, however, the U.S. Congress has essentially told the federal police agencies that they cannot use "federal money to interfere in the implementation of state medical marijuana laws." Thus, use and possession of the substance violates federal law, but enforcement is legislatively hampered. Meanwhile, states have engaged in a variety of decriminalization efforts both for oxymoronic and recreational possession and use of pot. These have attracted critics, fans, and entrepreneurs.

Notably, Justice Thomas highlighted two bulls issued by the U.S. Department of Justice in which the federal government committed to "not intrude on state marijuana legalization schemes or prosecute individuals for marijuana-activity if it complies with state law." Thus, the autonomy of the states has been recognized by the federal government in published deference. Some might argue that regulation of such activity is better as a local issue. However, some would see difficulty in distinguishing the growing and selling of pot from the wheat that landed farmer Filburn in such difficulties back in 1942. In all, there is potential for confusion in the short term and room for the Supreme Court to provide clarity for the long term. Perhaps a recognition that Wickard v. Fillburn was poorly reasoned?

Upon this dichotomy of federal regulation and restraint, Justice Thomas concluded: “Federal policies of the past 16 years have greatly undermined its reasoning,” Thomas added. “The federal government's current approach is a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana.” “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.”

Why is the commentary relevant, beyond academic interest? The patchwork of state laws leads Justice Thomas to comment that variety leads to issues with the equal protection clause of the Fourteenth Amendment. At first glance, that might seem to be criticism of the fact that one might readily purchase pot from a store in Colorado, but not in neighboring Kansas. In that there is inequality, or at least disparate access. However, that exists in a myriad of examples including gambling, prostitution, and more. Back in the day, many an eighteen-year-old Hoosier drove to Ohio for entertainment, before it increased its drinking age to 21. So the state-to-state is perhaps more a distraction than a focus.

Justice Thomas is more focused, instead on the dichotomy(ies) within federal law and regulation. In an intriguing contrast with Congress' preclusion of federal law enforcement regarding pot, the Internal revenue code "prohibits businesses that deal in marijuana and other controlled substances from deducting their business expenses." That was the focus of the case recently declined by the Court. Thus, in a single building in Colorado, a business selling pot and a business selling cakes might each require a new cash register. There is merit in questioning why one can claim that expense as a tax deduction and the other cannot. Is there merit in a distinction?

In a simple context, the merit is apparent. Should the government treat the expenses of El Chapo the same as it would those of Jeff Bezos? They are each engaged in commerce. Can tax law treat the drug lord differently from the retail magnate? Though there is clearly different impact of the tax law, is that violative of equal protection? Justice Thomas' perspective seems to be that Congress' dichotomous policy suggests that those two retailers in Colorado are less distinct from each other. As they become less distinguishable, less El Chapo/Bezos distinguishable, perhaps their similarity enhances the equal protection compulsion gains primacy?

The present challenge was thus to the dichotomy between business expenses of pot businesses and other businesses. However, there are also provisions of federal law regarding pot that could implicate banks. Those laws were likely instituted with an intent of denying banking services to El Chapo and the like, but are now precluding those services to the pot businesses. In the evolving environment of state laws, that too could be seen as an equal protection issue. There are broad prohibitions on other services for such persons, which have been vociferously argued by carriers resisting payment for pot in workers' compensation cases. Those carriers fear penalty and detriment from engaging even peripherally in illicit (pot is still illegal) drug transactions.

Writ large, Justice Thomas sees both dichotomy and challenge, noting:

There is thus seen a "fairness" argument in various contexts of the pot business. A similar spectrum of federal laws has been identified and cited by insurance carriers that have been asked or even ordered to violate federal law and provide or compensate pot for injured workers. In the context of a "patchwork," perhaps greater distinctions regarding pot exists than those among state workers' compensation laws and pot access.

However, the Justice's comments could be a broader harbinger in shifting or evolving legal principal. The Court has long recognized that the Tenth Amendment leaves to the states a broad regulatory swath of what came to be known as "police powers." These are focused upon the "health, safety, and welfare" of the people. We have seen great disparity there in this pandemic. States have made decisions: to lockdown, to mandate masks, to alter existing contracts, and more. There is great disparity in these local decisions; there is great debate in the interactions of federal and state law therein.

Might the federal government, in that pandemic context, leverage greater control over health, safety, and welfare? The Tenth Amendment says no, but prior invasions on topics like a federal minimum wage, justified with such as the Interstate Commerce Clause, suggests it is possible. Is the federal government's authority or ability to regulate in such setting dependent upon the sincerity, clarity, or consistency of its message? May the federal government only exercise its Commerce Clause and other authority when it does so sincerely? Justice Thomas' recent marijuana, or more pertinently equal protection, comments suggest debates and questions.

There is potential for rewrite of a variety of federal interventions into state authority. The Tenth Amendment perhaps will be the subject of great scrutiny in coming debates of equal protection of federal law. Thus, for the injured worker, there is some possible potential for ongoing arguments of "equal protection," as regards access to pot. For carriers, some potential exists for different perspectives on paying for pot, just as banks might see greater leeway in providing services for those who are engaged in growing, transporting, and retailing it.

There is potential for the court to clarify pot or to render peripheral decisions on issues like taxation or banking that will implicate pot. That will potentially change the way we treat pain, or at least implicate the way people medicate themselves perhaps; for better or worse. The short term in Florida workers compensation is perhaps more predictable because of the simple language in section 381.986(15)(f)("marijuana . . . not reimbursable under chapter 440.")

Those who study the constitution, and its application to the incredible complexity that is a federalist system of separated powers will see many potential similarities and distinctions in such a coming debate. What Justice Thomas' comments portend substantively remains to be seen. What we know with certainty, however, is that questions are being asked and the probability is that litigation will continue regarding pot, regulation, and commerce. And, that will continue to attract the fans, critics, and entrepreneurs.

By Judge David Langham