“A Half-in, Half-Out Regime”: Thomas Slams the Continued Criminalization of Marijuana in Little Noticed Opinion

As we wait for the final cases from the Supreme Court this week, Monday was confined to orders of the Court, including the granting and denial of review of cases. One of the cases that was declined was Standing Akimbo, LLC v. United States. That is hardly news on a Court that rejects most petitions for a writ of certiorari. However, this denial was accompanied by an opinion from Justice Clarence Thomas who slammed the current federal policy on marijuana as “a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana.”  He is, of course, correct. The current position of marijuana criminalization is incomprehensible and conflicted. However, the criticism from one of the Court’s most conservative members was particularly notable. The timing is also notable. This week, the Mexican Supreme Court decriminalized recreational use of marijuana.

The case derived from the United States Court of Appeals for the Tenth Circuit and involved a medical-marijuana dispensary, Standing Akimbo, LLC, which was under investigation by the IRS for improper deductions for business expenses arising from a “trade or business” that “consists of trafficking in controlled substances.” 26 U.S.C. § 280E. Peter Hermes, Kevin Desilet, Samantha Murphy, and John Murphy refused to verify their tax liabilities because they feared criminal prosecution.  The Tenth Circuit upheld the district court decision in favor of the IRS and its authority to conduct the audit.

Thomas noted that in 2005 a fractured divided court ruled Gonzales v. Raich, 545 U.S. 1 (2005), that the federal government could rely on interstate commerce authority to enforce prohibition against cannabis cultivation even when it took place wholly within California.  The Court rationalized that this “fungible commodity” was part of “comprehensive legislation to regulate the interstate market ” and that “exemption[s]” for local use could undermine this “comprehensive” regime. Thus prohibiting any intrastate use was, according to the Court, “‘necessary and proper’” to avoid a “gaping hole” in Congress’ “closed regulatory system.”

Now however there is widespread legalization of the possession and sale of marijuana, a trend that we have been following with a massive market emerging across the country.  There is also massive public support for legalization that has been building for years.

That has all led to our current nonsensical federal system that criminalizes marijuana while tolerating its sale. That brought Thomas back to Raich and the fact that the opinion now seems facially ridiculous in its logic. Thomas noted “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.”

Thomas noted that the federal authority rests on what is not something of a myth that leaves citizens both confused and at risk: “This contradictory and unstable state of affairs strains basic principles of federalism and conceals traps for the unwary though federal law still flatly forbids the intrastate possession, cultivation, or distribution of marijuana…the Government, post-Raich, has sent mixed signals on its views.”

Thomas noted that the federal government continues to claim the authority while simultaneously saying that it will not enforce it. For its part, Congress has tried to curtail enforcement through budget limits: “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,. One can also 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.”

Thomas notes that the “petitioners have found that the Government’s willingness to often look the other way on marijuana is more episodic than coherent.”

Thomas is right.  It is surprising that the case could not garner four votes to allow review. It would have made for an excellent platform to reconsider Raich. As a result of the decision, citizens and businesses will be left to languish in this muddled legal and regulatory status. Marijuana remains a criminal substance tolerated by the federal government and actively supported by many states.

For those of us with libertarian tendencies, legalization of cannabis has long been a cause célèbre. However, even for those who have not held this view, I cannot imagine that the currently self-contradictory position of the federal government is tolerable. Of course, the Court may be hoping that Congress acts to correct this glaring contradiction. The preference is always for the political branches to address such questions with sweeping social and political consequences. However, the patience of the Court may be running short for Congress to show a modicum of responsibility and reason in decriminalizing cannabis.

Notably, the Mexican Supreme Court previously tried to force its own Congress to act with an April 30th deadline to legalized recreational use of marijuana. A bill passed one house but languished in in the Senate. In its decision, the Court again urged its own Congress to act “in order to generate legal certainty.” As it stands, citizens are protected in their recreational use but the government still criminalizes the production and transportation of the product.

Our Court does not dictate such deadlines but the Thomas opinion shows the same growing impatience with our politicians who want to support cannabis use but lack the courage to decriminalize the product on the federal level. I am surprised that none of his colleagues joined Thomas in this opinion. I expect, however, that his statement of frustration is shared by others on the Court and this is a shot across the bow for both Congress and the White House.

78 thoughts on ““A Half-in, Half-Out Regime”: Thomas Slams the Continued Criminalization of Marijuana in Little Noticed Opinion”


    One can see, from lack of participation, that Turley’s far-right regulars are flummoxed by Thomas’s framing of this issue. They would have been greatly more comfortable had Thomas advocated increased penalties for pot. Had Thomas recommended felony treatment, for even minor possession, Turley’s regulars would have piled on, cheering with approval.

    One of the big differences between liberals and conservatives is pot versus alcohol. The average Trumper would prefer getting drunk on beer than smoking good weed. For that reason you can always spot the Trumper by his sagging beer belly.

    1. Actually, Anonymous, many conservatives take a Libertarian view on what we consume. Conservatives just add their opinion whether or not something is bad for you. But they don’t always want to make it illegal.

      Dave Reuben once described the difference between Libertarianism and Conservatism roughly along these lines: If most people in the country decided to get into porn, Libertarians would shrug their shoulders and say, well, as long as they’re not being coerced, it’s their decision and shouldn’t be illegal. A conservative would also say that it shouldn’t be illegal, but they would add their opinion that massive participation in porn would have negative consequences.

      Get it? A conservative would criticize something, but not necessarily want it to be illegal.

      I posted some links on the high potency weed or chronic use of weed associated with psychosis. It definitely has some serious adverse health affects, in addition to bona fide potential for medical use.

      I think Congress needs to hash out what the laws on weed are going to be, and then we need to enforce those laws. If weed is legalized, I think its health hazards need to be disclosed so people can make informed choices. High potency weed and synthetics, especially, need to come with warnings, if they don’t already.

      This is just another of those contentious issues that the nation needs to have a discussion about. There are pros and cons to this issue. Unfortunately, our country has devolved to the level of howler monkeys throwing their own feces when it comes to talking politics. It seems impossible to come to any meaningful consensus.

      1. Karen assures us, “A conservative would criticize something, but not necessarily want it to be illegal.”

        Where to begin? I’ll let you off the hook by limiting it to the 20th century:

        Laws against teaching “Evilution”
        Laws against miscegenation
        Laws against contraception
        Laws against homosexuality

        That’s just off the top of my head. Care to rephrase your claim?

        1. Those are all talking points. You need to give examples of all that. Like, there are sodomy laws. They have enforced against the practice, without consideration of sexuality. Contraception? Never seen any jurisdictions banning condoms. Just leftist mindless talking points.

  2. The federal government should decriminalize marijuana and let the states deal with it along with a lot of other stuff that the states should be dealing with.

    1. Bob, your suggestion appeals to me, except… What about someone who legally ingests cannibis in one state, drives to another state, gets pulled over, and arrested for being under the influence of an illegal drug? Granted, it’s unlikely as the government has been looking away for the most part.

      I want to avoid law abiding people accidentally breaking the law just by crossing a state line.

      1. Driving impaired is illegal in all states. Driving impaired does not require the presence of a substance.

  3. Biden retains the Presidential cowardice historically associated with marijuana. All he has to do is sign his name to a one page document….how politically dangerous—eeeek; pot has 68% public support. “One of the first things I will do” -Joe Biden, Fall, 2020. Not.

  4. A politically congruent (“=”) policy? A novel jurisprudence. A progressive path and grade. They want to abort the baby, cannibalize her profitable parts, sequester her carbon pollutants, and have her, too.

  5. Americans enjoy the right and freedom of ingestion.

    The Constitution does not deny or prohibit ingestion.

    Customary and traditional laws against property damage and bodily injury are extant and constitutional.

    You can’t grasp the scope and breadth of American freedom and the severest of limitations and restrictions on government.

    That you don’t enjoy or agree with the maximal freedom of individuals and the infinitesimal power of government, does not bear, does not matter and does not nullify or void the maximal freedom of individuals and infinitesimal government.

    Americans enjoy constitutionally enumerated rights, freedoms, privileges and immunities, and every other, conceivable, natural and God-given right, freedom, privilege and immunity per the 9th Amendment.

    No individual is guaranteed financial or social success and legislation to effect the financial or social success of any individuals is unconstitutional – individual welfare, affirmative action, quotas, forced busing, public housing, fair housing, social services, non-discrimination, rent control, minimum wage, WIC, SNAP, TANF, HAMP, HARP, HUD, HHS, Obamacare, etc., etc., ad infinitum, ad nauseam.

    The American thesis is: Freedom and Self-Reliance.

    9th Amendment

    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    The singular American failure has been and continues to be the judicial branch, with emphasis on the Supreme Court.

    A Supreme Court that nullifies and voids constitutional rights, freedoms, privileges and immunities is corrupt.

    The Supreme Court is SWORN to SUPPORT the Constitution, not to legislate, to modify, to legislate through modification, to “legislate from the bench,” or to legislate through “interpretation.”

    Justices are not controlled by a vote, they are controlled by impeachment.

    The Supreme Court Justices who have failed in their sworn duty to support the Constitution must have been impeached, convicted and severely penalized long ago.

    Americans do not need a Supreme Court in order to enjoy their rights and freedoms.

    Americans need only the Constitution and Bill of Rights.

    “…courts…must…declare all acts contrary to the manifest tenor of the Constitution void.”

    “…men…do…what their powers do not authorize, [and] what they forbid.”

    “[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”

    – Alexander Hamilton

  6. The current Court, excepting Thomas and Alito, seem very shy on important cases. They cowered and did nothing on the election cases [no, Trump did not lose 60 cases] when they could have saved the country a lot of grief and doubt by simply accepting the burden.

    Now it looks as if they were afraid to accept a case on use of force by police that had George Floyd similarities. Professor Jacobson has brought that to attention:


    They are looking a bit shabby. They plunge into cases like gay marriage where they really have no business, but run like scalded cats on cases that beg for wisdom from the ‘highest’ court in the land. That, by the way, is neither a comment for or against gay marriage. I think it was an issue for the public and their elected representatives, not the Court.

    The Court did this to itself. Instead of expanding it, I would like it to shrink to just Thomas and Alito so we would have a court that wants to actually follow the law rather than one that pretends it is a continuing constitutional convention but runs from issues that it truly should decide for the health of the country.

  7. We will not be tossed about like a ship that the waves carry one way and then another. We will be influenced by every new teaching we hear from people who are trying to fool us. They make plans and try any kind of trick to fool people info following the wrong path. Ephesians 4:14 (NCV)

    1. Yes, our ancestors were wise men and women, and advised their Posterity with the wisdom of their ages that bears no dissimilarity from our own.


    How ironic that Clarence Thomas of all people should verbalize the ridiculous contradictions regarding the status of marijuana laws in this country.

    It is well-know that Mitch McConnell is the biggest remaining roadblock to Federal decriminalization. In fact polls show that even most Republicans would be okay with legalization at this point. There is no longer any excuse to delay the inevitable.

    1. A cigarette, a joint, a Fentanyl pill, too, the fine particles of asbestos, a lesser evil with a progressive price under liberal jurisprudence, socialization, and Obamacares. Oh, well. Good intentions.

    1. Diversity [dogma] (i.e. color judgment) breeds adversity past, present, and progressive. A Pro-Choice, selective, opportunistic, relativistic religion exacerbates the condition on a forward-looking basis.

    2. We have evolved, a chaotic process, but worse, we have progressed (i.e. monotonic process) without principles… nay, with a selective, opportunistic, relativistic (“ethical”), nominally “secular” religious order.

    3. It is divisive and destructive.

      And apparently, even Ibram X. Kendi of CRT fame has a very difficult time articulating a coherent definition for racism. Check this out:

      Racism, I would define it, as a collection of racist policies, that lead to racial inequities, that are substantiated by racist ideas.

      Now that’s some really deep thinking.

      1. Jussie Smollett gave us a good idea of what racism is today along with help from Kamala. It is hucksterism and rent seeking.

        After an outrageous attempt to stir up racial animus and lay it on Trump supporters, Smollett seems to have been given a complete pass by our corrupt judicial system.

        Wasn’t that a hate crime against Trump supporters as well as filing a false police report?

        We are become lawless in this country.

        1. Someone should ask these asshats to define what isn’t racist. I suspect they would define it as anything that makes white people lose the security of their life, liberty, property and pursuit of happiness.

          1. Seems like they want to Zimbabwe us.

            They are creating the strongest resurgence of tribalism I have seen in my lifetime.

  9. I dont use it myself, but I do think to decriminalize it is fine.

    As Thinkitthrough says, dont show up to work, get fired that person does not get a unemployment check.
    We have a friend who’s daughters baby daddy is that stereotypical pot head. Can only hold a job for a few weeks, then suddenly he is unemployed by no fault of his own he cries. The boss was mean to him!
    Been like that for three years and over a dozen jobs now. COVID gave him an excuse and a paycheck.

    And, there have been more than a few studies indicate the use of marijuana leads to decreased fertility in men . . . I am okay with that too. Too many people anyways.
    The above mentioned friend’s daughter with the deadbeat baby daddy, yeah, we were hoping his fertility rate would be so low he could never reproduce . . . yeah, didnt work out that way.

  10. This is a telling remark from the most conservative justice. For those of you that do not quite understand what is actually happening, allow me to provide a little light. Most of the coverage has been about banking and running a business and how those in the marijuana business are caught between the proverbial rock and a hard place.

    States are legalizing marijuana slowly but surely. The Federal Government has not been on board. I suspect this is more about political points than it is truly about what is just. Regardless of where one falls on the legalization spectrum, the dichotomy between Federal law and various state laws are creating unintended consequences for many.

    Besides banking and businesses trying to be treated like other legal entities, there are a wide range of people that will be adversely affected without realizing it until it is too late.

    The Federal Government has intimated it will not pursue criminal actions and arrest of those in which state that marijuana is legal. Yet, that does not protect those that are on highways for search and seizure even in those same states. More importantly, those with Federal clearances or licenses are still under Federal control even in the very states the marijuana is legal. For instance, if you have a commercial driver’s license, you are under Federal jurisdiction regardless of the state. Because of this, a driver issued a license in their state of domicile that it is legal for marijuana use could lose their livelihood if they are found to have it in their system during a random drug screen. That is a problem. They will not be arrested, but lose their ability to earn a living. Now apply this across the board to anyone that has Federal controlled permits or licenses.

    The Federal Government wants the tax money, that is obvious, but they do not seem to want to clear the path for legalization to make it easier to create more

    Much like Justice Thomas, I too think it is time to stop this stupidity. I am neither condoning nor supporting legalized marijuana. I am personally ambivalent on this issue. However for clarity’s sakes, this needs to be put to bed on the Federal level by either enforcing the ban or legalization on the Federal level. This in between stance is neither good for the country, nor developing trust in the government. The way it is right now, it leads to selective enforcement and that will lead to charges unfair justice.

  11. Lead guitarist of the Grateful Dead, Jerry Garcia didn’t like playing gigs under the influence of dope…..Because you don’t have options

  12. From Taj Mahal “Nobody’s Business by My Own”—————
    “…Man, I don’t care what in the world that you do
    As long as you do what you say you going to
    Ain’t nobody’s business but your own…”
    —————– I am not opposed to legalization but the truthful consequences’ of use should be presented and employers given the right to test and disqualify user if they wish. Marijuana induces users to notions of grandeur, laziness, self doubt, forgetfulness and a host of other negative consequences. The habitual user becomes addicted and desires to use it whenever, thinking they can maintain normal composure. The user in a business environment tends to make more mistakes and generally cannot fulfill the most basic instructions, sputtering about lost in a wacked out brain. And finally the high user is more prone to accidents. I post this from experience as a retired building contractor and a previous user All that being said the national and state laws need to be harmonized as the esteemed Justice Thomas states.

    1. Justice Thomas is correct. If people want to get high and set on their couch and say wow just let them. In fact a government subsidy should be provided in the form of a tent that they can set up under a bridge in San Francisco. One caveat should be applied. If your not going to get up and go to work no unemployment check will be forthcoming and your mother in law must be publicly vindicated for her judgement that you are a good for nothing.

  13. Federal government also requires those applying for guns to assert no marijuana use, which is ludicrous in the states that allow for legalization and in light of alcohol use not being asked about.

    1. The form also proscribes addictive use of alcohol. The FF form focuses on abuse and dependence not the actual intoxicant

  14. “A 2019 analysis, also funded by NIDA, re-examined this relationship using data through 2017. Similar to the findings reported previously, this research team found that opioid overdose mortality rates between 1999-2010 in states allowing medical marijuana use were 21% lower than expected. When the analysis was extended through 2017, however, they found that the trend reversed, such that states with medical cannabis laws experienced an overdose death rate 22.7% higher than expected.”

  15. This is off topic, so I apologize.

    Looked at yesterday’s column on Giuliani; lots of comments.

    What struck me was how hostile/aggressive the comments were from some of the Lefty posters.

    Natacha and MollyG were particularly venomous towards Turley, while Anonymous demonstrated his growing dislike of Turley in his many posts.

    Why do they stay stay?

    All three posters complained about the topics that Turley chooses, what Turley says, and Turley’s conclusions (with a few sneers at Turley’s employment, his integrity, and his future prospects).

    In a nutshell, they were upset because Turley didn’t say what they want him to say.

    Why do they stay? I get the sense that they will pound Turley until he either submits to their wishes or stops writing. Sign of the times.

    Don’t waste time reading the posts of these people – they are ugly and offensive.

    On the flip side, there were several Lefty commentators who were thoughtful and reasoned (enigmablack, Jeff Silberman, etc).

    Pleasure to read their opinions (I remain unconvinced), because that is what debate should be.

    This is a small enough response blog that we learn who has something to say and who we should skip.

    Let’s use our time wisely and ignore the angry trolls.

    1. Monumentcolorado,

      Well, to be fair Turley’s blog is about freedom of speech. If certain posters overly criticize Turley’s positions or views that’s certainly their prerogative. Pointing out inconsistencies and hypocrisy in Turley’s opinions is what should be expected. Simply being satisfied with just an echo chamber doesn’t promote discourse, it gets boring. Trump tried his own blog to compete against Twitter and Facebook. It was shut down because it got boring. Turley doesn’t want that.

      1. Svelaz

        Agree with you about disagreement and debate.

        My complaint about certain posters is their venom, and their rudeness (did you see MollyG’s comment calling Turley “a partisan piece of s—“?).

        None of us really care what an ugly person writes.

        My wish is for civil discourse, something that we are losing nationally.

        1. Monumentcolorado, I agree. There is too much animosity to really have a good discussion that doesn’t devolve into a chaotic argument.

  16. This “fractured” system serves to breed contempt for the law while creating a nation of scofflaws. Admittedly not a fan of decriminalization; still, our so called political leaders need to do something other than read polls and act in the public interest. I worry, however, the the Law of Unintended Consequences will rear its head on this one

    1. Marijuana is no different than using alcohol. We tried banning alcohol by constitutional amendment and it created more problems than it prevented. Marijuana is no different. Legalization creates an avenue to regulate it just like we do with alcohol.

      1. If you really believe that marijuana is no different than alcohol, you need to spend more time observing pot heads. My Dad was an alcoholic, but worked as a logger in the Pacific Northwest for 35 years without injury. Believe me, you would not want someone stoned on pot using a chainsaw! Drive through San Fran, L.A., the “Emerald Triangle” cites of No. CA where pot is celebrated and you’ll see that roughly 80% of homeless people are white males. Supposedly the most “privileged” Americans and they can’t even support themselves or keep a roof over their heads. Why? Two-three generations of drug use. Drug users raising drug users who sit on the sidewalk begging and then spend their money on more drugs. States have legalized marijuana to the detriment of their citizens because of hugely bloated budgets that they are unwilling to reduce. Instead of controlling spending, states legalized pot for the tax dollars. And we get more stoned drivers taking lives and stoned workers (if they’re willing to work at all) and more drugged dysfunctional parents raising children in homeless camps such as Humboldt County’s horrific “Devil’s Playground” and other crime and drug infested Hell holes.

  17. Peter Tosh’s reggae classic “Legalize It”:

    Legalize it
    Don’t criticize it
    Legalize it, yeah yeah
    And I will advertise it
    Some call it tamjee
    Some call it the weed
    Some call it marijuana, daya
    Some of them call it ganja
    Never mind, got to legalize it
    And don’t criticize it
    Legalize it, yeah yeah
    And I will advertise it
    Singers smoke it
    And players of instrument too
    Legalize it, yeah yeah
    That’s the best thing you can do
    Doctors smoke it
    Nurses smoke it
    Judges smoke it
    Even lawyer, too
    So you’ve got to legalize it
    And it don’t criticize it
    Legalize it, yeah yeah
    And I will advertise it
    It’s good for the flu
    Good for asthma
    Good for tuberculosis
    Even numara thrombosis

    1. Right, lets just legalize all “recreational” drugs and have at it! A Rukeyser Health and Development study showed adolescent weekly users of cannabis were 100 times more likely to use other illicit drugs.
      A 25-year study in Norway shows workers who use cannabis are less dedicated to their work than those who don’t. In the US, cannabis use by employees leads to increases in absenteeism, accidents, job turnover and worker compensation claims (https://www.shrm.org/hr-today/news/hr-magazine/fall2019/pages/marijuana-and-the-workplace-its-complicated.aspx).

      1. “. . . study showed adolescent weekly . . .”

        The key word there being “adolescent.” The issue here is what the law should be with respect to *adults*.

        “. . . cannabis use by employees leads to increases in absenteeism, accidents, job turnover and worker compensation claims . . .”

        So the law should ban anything that leads to absenteeism, et al.?

        That’s going to be a very long list.

Comments are closed.