Clarence Thomas, one of the Supreme Court's most conservative justices, said Monday that because of the hodgepodge of federal policies on marijuana, federal laws against its use or cultivation may no longer make 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.
His views came as the court declined to hear the appeal of a Colorado medical marijuana dispensary that was denied federal tax breaks that other businesses are allowed.
Thomas said the Supreme Court's ruling in 2005 upholding federal laws making marijuana possession illegal may now be out of date.
"Federal policies of the past 16 years have greatly undermined its reasoning," he said. "The federal government's current approach is a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana.”
Thirty-six states now allow medical marijuana, and 18 also allow recreational use. But federal tax law does not allow marijuana businesses to deduct their business expenses.
"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," Thomas said.
The Department of Justice has instructed the nation's federal prosecutors not to pursue cases against marijuana businesses that follow state law. And since 2015, Congress has prohibited the Justice Department from spending federal money to prevent states from carrying out their own laws.
But the IRS continues to enforce its own rules against growers and dealers.
The federal government's "willingness to look the other way on marijuana is more episodic that coherent," Thomas said.
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