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Cannabis Connection
“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. [...] If the Government is now content to allow States to act ‘as laboratories’ ‘and try novel social and economic experiments,’ then it might no longer have authority to intrude on ‘the States’ core police powers to define criminal law and to protect the health, safety and welfare of their citizens.’ A prohibition on intrastate use or cultivation of marijuana may no longer be necessary or proper to support the Federal Government’s piecemeal approach.”
This statement, penned by the very conservative Supreme Court Justice Clarence Thomas, signals change in even the farthest-right wing of the political spectrum regarding the United States’ prohibitionist policy. By calling out the internal inconsistencies of the federal stance on cannabis and by declaring that the Supreme Court’s past decisions to uphold cannabis prohibition should be revised, Justice Clarence Thomas became an unlikely champion of common-sense reform.
“One can perhaps understand why business owners in Colorado may think that their intrastate marijuana operations will be treated like any other enterprise that is legal under state law. Yet, as petitioners recently discovered, legality under state law and the absence of federal criminal enforcement do not ensure equal treatment,” he stated after the Court refused to hear such a case. “The Government’s willingness to often look the other way on marijuana is more episodic than coherent.”
The justice continues by pointing out numerous issues with the federal government’s self-contradictory actions, such as taxing state-legal cannabis businesses differently, forcing them to operate entirely in cash because federal law forbids banks from cooperating with cannabis operations, not allowing cannabis businesses to have security personnel, and many more absurd laws. “A marijuana user similarly can find himself a federal felon if he just possesses a firearm,” he notes, “or businesses may find themselves on the wrong side of a civil suit under the Racketeer Influenced and Corrupt Organizations Act,” Justice Thomas wrote.
Bipartisan Support
It has been repeatedly documented that support for the federal legalization of marijuana is bipartisan and nigh-universal nowadays: Pew Research Center found that 91% of U.S. adults think marijuana should be at least partially legal, including 87% of Republicans. In theory, the GOP stands for individual freedom, in particular freedom of trade, and against government overreach—as such, it would only be natural for Republicans to be the first in line to demand the legalization of marijuana. Justice Clarence Thomas took this vital first step towards establishing that important voices on the right wing have reason to defend the legalization of marijuana. And what a voice!
The U.S. Supreme Court gave us marriage equality, the right to abortion and the end of segregated schools, it could give us marijuana legalization as well, if the justices choose to uphold the will of the population. In Gonzales v. Raich (2005), the Court ruled that the federal ban on cannabis superseded state laws legalizing it; but since 2015, Congress has passed resolutions every year to stop any federal authority from interfering with state-legal cannabis. “Whatever the merits of Raich when it was decided, federal policies of the past 16 years have greatly undermined its reasoning,” Thomas points out, signaling that it may be time to reexamine the federal status of cannabis.
In a twist of fate, this statement by Justice Clarence Thomas comes just days after Mexico legalized cannabis nationwide through their own Supreme Court, demonstrating how the U.S. could follow suit.
In 2018, the Mexican Supreme Court had ruled that the prohibition of marijuana is unconstitutional and ordered lawmakers to legalize it. Despite requesting and receiving several time extensions to pass such laws, Mexican legislators failed to legalize marijuana, as Mexico’s Congress was stuck in a partisan gridir Supreme Court stopped waiting for the legislature; the Court introduced a declaration of unconstitutionality and voted 8-3 to unilaterally end the prohibition of marijuana.
De Facto Legal
As a result, the possession and personal cultivation of marijuana are now de facto legal across Mexico. However, without the legislature’s cooperation, the Supreme Court could not create a regulated and taxed system of sales. After three years, the Mexican Congress failed to legislate on the issue amidst diverging interests and pressure from the pharmaceutical and tobacco industries, but it is up to them to create a fair and legal marketplace for the now-legal cannabis products.
This situation, while not ideal, is still an exit from the stalemate that had kept Mexico in limbo for years because of the unwillingness to act of a handful of lawmakers. The previous status quo was comfortable enough for the legislature not to act while the population suffered, so the Supreme Court took down prohibition and is now forcing lawmakers to act. The solution could come from Congress, but it could also come from Mexico’s President Andrés Manuel López Obrador, who suggested presenting the issue directly to voters through a referendum. It is unclear what terms would be offered to the voters, but as Obrador was not opposed to legalization, it seems likely the referendum would offer a system of regulated sales to build upon the Supreme Court ruling.
Regardless of the path explored by Mexico in the future, it will be a path forward. The American federal government is still waiting on the starting blocks. If the staunchest conservative among Supreme Court Justices could be convinced to end cannabis prohibition, then there might be hope that our Supreme Court will follow in the steps of our southern neighbor. Because, as it stands, the United States is the odd one out, still clinging to Nixon-era prohibition trapped between Mexico and Canada, both of which chose freedom and progress.
