by Sarah Lee Gossett Parrish
If you are in the cannabis industry, you have a very powerful friend, a man who sits on the United States Supreme Court. The dissenting Statement respecting the denial of certiorari handed down on Monday, June 28, 2021, by United States Supreme Court Justice Clarence Thomas, one of the Court’s most conservative justices, proves he is a friend of the industry and even suggests that change may be in the air.
While numerous bills have been introduced in Congress to accomplish needed changes in federal marijuana policies (I previously have written about these), when a U.S. Supreme Court Justice basically opines that federal marijuana policies have become nonsensical, one must wonder whether the courts will implement change if Congress fails to muster the courage to do so.
Standing Akimbo, LLC, et al. v. United States
The case in which Justice Thomas issued his Statement arrived at the Supreme Court on appeal from the decision of the United States Court of Appeals for the Tenth Circuit in Standing Akimbo, LLC, et al. v. United States, No. 19-1049 (10th Cir. 2020). Notably, Oklahoma is one of the states under the jurisdiction of the Tenth Circuit.
This particular Tenth Circuit appeal arose out of a lower federal court (trial court) opinion issued by the U.S. District Court for the District of Colorado, granting the government’s motion to dismiss a petition filed by Standing Akimbo, LLC, a Colorado medical marijuana dispensary, to quash certain summons the IRS had issued to the Colorado Department of Revenue’s Marijuana Enforcement Division to confirm the dispensary owners’ tax liabilities under a civil audit of their federal tax returns.
The IRS had issued several summons in an attempt to uncover evidence that Standing Akimbo had claimed business deductions prohibited by § 280E of the IRS Code, and the dispensary asked the Court to quash (prohibit) the issuance of those summons. The Tenth Circuit rejected Standing Akimbo’s position and affirmed the trial court’s opinion allowing the various summons to be issued. Subsequently, the U.S. Supreme Court denied Standing Akimbo’s petition for a writ of certiorari in Standing Akimbo, LLC, et al. v. United States, No. 20-645 (decided June 28, 2021), 594 U.S. ___ (2021).
Justice Thomas’s 5-page Statement respecting the denial of certiorari
read it at https://www.supremecourt.gov/opinions/20pdf/20-645_9p6b.pdf, provides “…federal policies [to prohibit the local cultivation and use of marijuana] of the past 16 years have greatly undermined its reasoning. 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.”
Citing the Department of Justice’s infamous Cole Memorandum dated August 29, 2013 (read it at https://www.justice.gov/iso/opa/resources/3052013829132756857467.pdf), wherein U.S. Deputy Attorney General James M. Cole advised federal prosecutors to refrain from
marijuana prosecutions in states where marijuana had been legalized (with eight exceptions), and a Ninth Circuit Court of Appeals opinion prohibiting expenditures on the prosecution of persons in compliance with state law (United States v. McIntosh, 833 F.3d 1163, 1168, 1175-55 [9th Cir. 2016]), Justice Thomas opined that “one can certainly understand why an ordinary person might think that the Federal Government has retreated from its once-absolute ban on marijuana[.]” (Statement at p. 3), and that “[o]ne can also perhaps understand why business owners in Colorado, like petitioners, may think that their intrastate marijuana operations will be treated like any other enterprise that is legal under state law.” Id. However, as the petitioners learned, “legality under state law and the absence of federal criminal enforcement do not ensure equal treatment.” Id.
Justice Thomas also noted that the “disjuncture between the Government’s recent laissez-faire policies on marijuana and the actual operation of specific laws is not limited to the tax context,” mentioning banking issues, among others, that state-legal marijuana businesses must face. Notably, Justice Thomas concluded that “[a] prohibition on intrastate use or cultivation of marijuana may no longer be necessary or proper to support the Federal Government’s piecemeal approach [to cannabis regulation and policies].” Statement at p. 5.
NORML’s Executive Director, Erik Altieri, commented that “Justice Thomas’s comments reflect what has been obvious to the vast majority of Americans for some time now…This intellectually dishonest position [of federal marijuana prohibition] … complicates the ability of states to successfully regulate and oversee state-legal marijuana businesses … It is time for Congress to end this untenable situation by removing cannabis from the Controlled Substances Act so that states can make their own decisions with regard to marijuana and marijuana commerce free from undue federal interference.”