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Supreme Court Justice Clarence Thomas questions federal marijuana ban in IRS case

One of the most conservative Supreme Court justices claimed Monday that federal marijuana bans “may no longer be necessary” if the government looks the other way amid widespread legalization of the drug across the states.

If the federal government is “now content to allow states to” act as laboratories “and try new social and economic experiments,” then it “may no longer be empowered to invade the state’s core police powers,” Associate Justice Clarence Thomas wrote.

“A national ban on the use or cultivation of marijuana may no longer be necessary or appropriate to support the federal government’s piecemeal approach,” wrote Thomas of the court’s decision to try a tax case with a Colorado marijuana dispenser.

The medical pharmacy is legal under Colorado law, but U.S. tax law prohibits companies selling controlled substances that federal law prohibits from writing off certain expenses. When the Internal Revenue Service issued subpoenas to the Colorado Department of Revenue for information about the pharmacy’s deductions, plaintiffs sued for stopping the disclosure of those records.
The Denver-based US District Court of Appeals for the 10th District ruled against the pharmacy. The Supreme Court on Monday declined to review that decision.

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Thomas’ testimony has no legal force, but it could signal attorneys how he would decide in a future case.

Thomas referred to the Supreme Court decision in the Gonzales v. Raich in 2005, in which a majority concluded that Congress had authority to regulate international trade and that “the watertight nationwide ban on marijuana also allowed it to ban local cultivation and use.
But now, he said, 36 states allow medical marijuana and 18 also allow recreational use of the drug. Thomas referred to a Justice Department memo during the Obama administration that announced that the federal government would not challenge state medical and recreational marijuana laws in most cases.

“Given all these developments, one can certainly understand why a normal person might think that the federal government has withdrawn from its once absolute ban on marijuana,” wrote Thomas.

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