Could the federal government be on the verge of changing its laws surrounding marijuana?
One of the Supreme Court’s most conservative justices, Clarence Thomas, said in a statement that the federal government’s “half in and half out” approach when it comes to regulating marijuana no longer works.
Now as New York looks to roll out the country’s second-largest recreational marijuana market, Lawrence Levy, a Hofstra University professor, says these comments could help influence smaller, more conservative communities in New York.
“Much of the pushback is coming from Republicans and conservatives, so perhaps they will see or hear Justice Thomas and say, ‘well, maybe there's no ideological or even political reason to fight this if Justice Thomas is the guy who's leading the charge,’” Levy explained.
Right now, not only is it still illegal on the federal level to possess marijuana, federal tax law also does not allow for these types of businesses to deduct their expenses.
This is what led a Colorado medical marijuana dispensary to bring its case to the Supreme Court after it was denied federal tax breaks other businesses are allowed. The court declined to hear the appeal, but Thomas still issued his view on how the federal law is being implemented.
In 2005, the Supreme Court ruled in Gonzales v. Raich that the federal government could enforce prohibition against cannabis cultivation that took place within California since it has authority to regulate interstate commerce.
But after that decision, the federal government started to veer away from some of these policies, something Justice Thomas pointed out in his statement saying, “the Government, post-Raich, has sent mixed signals on its views.”
In 2015, under former President Barack Obama issued a memorandum that prohibited the Justice Department from spending federal money on preventing states from carrying out their own marijuana laws.
The Justice Department also routinely instructed the nation’s federal prosecutors not to pursue cases against marijuana businesses that follow state law.
Now, more states every year continue to legalize some form of marijuana. Thirty-six states presently have medical marijuana laws on the books and 18 also allow for recreational use.
Looking at this picture, Justice Thomas said the federal government’s approach “simultaneously tolerates and forbids local use of marijuana.”
But what should that uniform approach look like?
“Our country is facing a nationwide addiction crisis as a result of the COVID-19 fallout,” Luke Niforatos, executive vice president of Smart Approaches to Marijuana, said. “So why should we allow for more legalization? Why should we recognize this industry at a time like this? So we think it's time for the federal government to issue some very consistent regulations and try to clamp down on this industry.”
Niforatos says while they don’t agree to federal laws legalizing cannabis, the group does support a bill currently in Congress that would study the health effects of medical marijuana.
“The government needs to take several steps forward in terms of expanding research, making marijuana-based medications more accessible to patients that need it,” Niforatos said. “But it needs to follow the scientific process and not allow an industry that is funded by ‘Big Tobacco,’ which is kind of leading that process right now in the States.”
Any sort of changes on a federal level would take time.
Meanwhile in New York, localities have until the end of the year to decide if they want to opt out of the state’s recreational marijuana program, which could be launched sometime in 2022 or 2023.
And as local leaders grapple with their decision, Levy says this statement by Justice Thomas could have an impact.
“When a conservative voice like Clarence Thomas speaks out for a change that many conservatives have opposed, it clearly could create some momentum, whether it's in Congress, or in New York state's villages, towns and counties, for change,” Levy explained.
Localities have until December 31, 2021 to decide whether to allow retail marijuana dispensaries within their jurisdictions.