Supreme Court of Cannabis?

By Michelle Rutter Friberg, NCIA’s Deputy Director of Government Relations

While it’s become commonplace to hear cannabis come up in the halls of Congress, and increasingly so in the White House, there’s one branch of government that has been quieter on the topic: the Supreme Court (SCOTUS). However, this week, conservative Justice Clarence Thomas changed that when the court actually declined to weigh in on a 280E case. 

Towards the end of 2020, a Colorado medical cannabis dispensary decided to ask the U.S. Supreme Court to review a lower-court decision that allowed the IRS to obtain business records in order to apply the 280E provision of the tax code. (Fun fact: NCIA member Jim Thorburn, of the Thorburn Law Group, was actually the counsel on record for this appeal!) According to the filings, the IRS overstepped its authority and also violated the company’s Fourth Amendment privacy rights. Some of the questions the company took to the highest court in the land:

• Does the Fourth Amendment protect taxpayers from having confidential information released to the IRS and federal law enforcement authorities?
• Does the application of Section 280E to state-legal marijuana businesses violate the federal constitution? 

Again, while SCOTUS declined to consider this appeal, Justice Thomas took issue with the underlying state/federal discrepancy in the country’s cannabis laws and issued a searing statement. He specifically discussed a 2005 ruling by SCOTUS in a case called Gonzales v. Raich. In this ruling, the court narrowly determined that the federal government could enforce prohibition against cannabis cultivation that took place wholly within California based on its authority to regulate interstate commerce. Check out a few excerpts from Justice Thomas’ statement below: 

• “Whatever the merits of Raich when it was decided, federal policies 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.” 
• “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. See, e.g., Halper, Congress Quietly Ends Federal Government’s Ban on Medical Marijuana, L. A. Times, Dec. 16, 2014. One 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.” 
• “As things currently stand, the Internal Revenue Service is investigating whether petitioners deducted business expenses in violation of §280E, and petitioners are trying to prevent disclosure of relevant records held by the State. In other words, petitioners have found that the Government’s willingness to often look the other way on marijuana is more episodic than coherent.” 
• “This 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. Many marijuana-related businesses operate entirely in cash because federal law prohibits certain financial institutions from knowingly accepting deposits from or providing other bank services to businesses that violate federal law. Black & Galeazzi, Cannabis Banking: Proceed With Caution, American Bar Assn., Feb. 6, 2020. Cash-based operations are understandably enticing to burglars and robbers. But, if marijuana-related businesses, in recognition of this, hire armed guards for protection, the owners and the guards might run afoul of a federal law that imposes harsh penalties for using a firearm in furtherance of a ‘drug trafficking crime.’” 
• “Suffice it to say, the Federal Government’s current approach to marijuana bears little resemblance to the watertight nationwide prohibition that a closely divided Court found necessary to justify the Government’s blanket prohibition in Raich. If the Government is now content to allow States to act “as laboratories” “‘and try novel social and economic experiments,’” Raich, 545 U.S., at 42 (O’Connor, J., dissenting), then it might no longer have authority to intrude on “[t]he States’ core police powers . . . to define criminal law and to protect the health, safety, and welfare of their citizens.””

Just to be clear, these statements don’t change the law of the land, nor do they indicate formal policy developments. They do, however, show that the constantly shifting public perception of cannabis is affecting the way we as a society think about marijuana, which will, at some point, translate into policy. It’s no small feat that one of the most conservative justices on the Supreme Court has weighed in so substantially on this topic. Continue the momentum and join the movement with NCIA!