“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”

  1. It is so ridiculous, the hoo-haa over pleasant, trivial marijuana intoxication.

  2. The DOJ objects to 2nd Amendment state and county sanctuary jurisdictions.

    But they have already screwed that up by allowing immigration sanctuaries and de facto state marijuana sanctuaries, protest sanctuaries, and I imagine, other Progressive sanctuaries, from federal law. Many of them lately.

    Funny isn’t it that it was the Democrats who once again opened the door to nullification?

  3. Agreed, Turley.

    Differences between federal and state law, both for reasons of inconsistency, as well as for protecting growing for the ‘medical’ movement for the larger corporate growers, are a reason to send a shot across the bow of Congress. Basic madness exists for growers where it actually still pays to grow for the black market without a near unlimited capital source behind you. An actor can bankroll a ‘legit’ grow op, whereas one that gets busted with locals can send people to jail. It’s crazy.

    The model to gravitate toward already exists. The wine market. Prepare for your local restaurant’s som to know and recommend a varied array of product beyond just wine going forward.


  4. The “Citizens United” ruling gives marijuana companies in Colorado the same constitutional rights as bourbon companies, vodka companies, beer companies or tobacco companies in other states. A Colorado “corporate-person” has the same 10th Amendment and 14th Amendment rights as any other corporate-person. Conservatives invented this legalese and liberal interpretation.

    The 10th Amendment – wrongly interpreted during the Jim Crow era (to violate the 9th Amendment or violate other constitutional rights) doesn’t apply in this scenario. States citing the 10th Amendment jurisdiction over the federal government aren’t violating anyone’s constitutional rights in the process.

    Neither the 10th Amendment nor the 14th Amendment have ever been amended to take-away rights. Alcohol “Prohibition” was the last time the U.S. Constitution was amended – through the legal constitutional amendment process – to take away rights and it was a complete disaster.

    Americans hate European style “nanny state” government especially when they do so without passing a constitutional amendment. The federal government simply has no jurisdiction on 10th Amendment grounds, this is clearly the legal domain of the states.

  5. I tried pot in my youth, and didn’t like it. Booze was my escape of choice.

    What I found surprising is the number of gathering I have been to where all those in attendence where from 50 to 70 that also featured pot. Between a third and half would migrate out to the garage to talk and smoke. Edibles were labeled and out to snack on.
    The complaint came from the still employed that held CDL, or were subject to random drug tests at work. There is way more pot used than I was aware of. We can jump across the river and try to relive our youth, but we just can’t articulate why? So we just keep driving.

    1. Me too. To me pot was just hot air and beer had substance. Easy choice.

  6. OT: “Fox News Agrees to $1 Million Fine for Violating Human Rights Law”


    As a free speech advocate, our esteemed Professor Turley should analyze the free speech implications of Non-disclosure agreements demanded by companies:

    “Labor lawyer Nancy Erika Smith, who represented former Fox News anchor Gretchen Carlson in the sexual harassment and retaliation lawsuit that cost Ailes his job (and won Carlson a $20 million settlement from Fox News’ parent company 21st Century Fox), called the right-leaning cable channel’s settlement agreement, especially its admission of guilt, “monumental.”

    “Until now, “I’m not aware of any government agency requiring an employer to stop silencing victims of discrimination, harassment, and retaliation, and that’s what NDAs and arbitration do—they silence victims,” Smith told The Daily Beast. “So bravo! Finally! The government is seeing that silencing victims protects harassers.”

    Will Turley forthrightly provide his expert opinion of the guilty conduct of his employer Fox or will he simply ignore the silencing of victims of discrimination, harassment and retaliation by the use of Non-disclosure agreements?

    That is the question.

    1. Good question indeed, Jeff. Unfortunately I think I know the answer already. Open to be surprised, however.


    2. I’ve never liked NDAs, in general.

      The impetus behind a settlement, in some cases, is that in exchange for paying a sum of money, the party will not talk about you. But I think that’s wrong.

      NDAs are a means to leverage victims, in many cases. It’s paying them off for their silence, instead of simply settling a debt. Why should anyone be gagged, outside of trade secrets, proprietary information, and classified information?

      If such misconduct can lead to a fine for “human rights violations”, then imagine the implications for each and every company where any employee engaged in discrimination or harassment.

      I’ve seen harassment up close. I quit a summer job when I was 18 or 19 because of an incident that was so frankly aggressive I just walked out. Years later, I saw a female manager constantly harass several handsome men at the company, and even allegedly have an affair with one.

      Sexual harassment and leveraging job opportunities is absolutely real. Human beings tend to abuse power, often for sexual gratification. It seems to be an instinct of the species, as is leveraging sexual attraction to get what someone wants.

      That said, what we don’t want is to weaponize allegations, or to believe or disbelieve anyone based on gender or race without evidence. Such allegations should always be proven, and the accused should be considered innocent until proven guilty.

      I’m not entirely convinced that “human rights violations” are the way to go, but applaud efforts to scrutinize the legality of NDAs.

      My God. The implications for Hollywood studios…The casting couch.

      1. Also:

        – what are your thoughts on serial rapist Bill Cosby being released and his conviction vacated
        – I’ll bet Matt Lauer and NBC News must be very concerned by this fine…unless such fines are only going to be applied with political motivation

        1. Karen,

          Of course, I was startled to read the Cosby ruling, but I presume that it is a righteous ruling unless facts are shown to prove that it was corrupt. You see, unlike the conspiracy-minded, e.g., Trumpists, I believe in our system of justice because I have studied it. I have faith in it. I don’t assume that it is rotten to the core because of Democrat judges.

          Until I read the Court’s opinion, I have no opinion, but I am not going to read it because I have better things to do. So I will just ignore all the “seat of the pants” commentary that will be posted here by “know-it-alls.”

          1. Jeff, unless you want me to start using distasteful terms like “Libtard”, please refrain from the derogatory term, “Trumpist.”

            If the prosecutor botched the case badly enough that a serial rapist went free, then that’s devastating news.

            I am curious if the NY Commission on Human Rights is going to impose similar fines on the news networks with similar sexual harassment settlements, such as NBC News, as well as all the major Hollywood studios, especially Harvey Weinstein’s Miramax.

            I think NDAs need review, but I’m not convinced a “human rights violation” is the right approach.

            Are the laws against sexual harassment and assault sufficient, or do we need another layer of “human rights violations”?
            What can be done about NDAs silencing victims which enables bad behavior to continue?
            Is the NY Commission on Human Rights using its power for political purposes, selectively targeting Aile’s former company, or will it apply its fines equally?

            1. Karen,

              What would you have me call people who stormed the Capitol and believe that Trump is NOT a chronic and habitual liar?

              As I explained to Prairie Rose, I don’t use the term as a pejorative. If you find it offensive, it is because you don’t like to be associated with Trump. Why not? Most are proud of it.

              You say: “If the prosecutor botched the case badly enough that a serial rapist went free, then that’s devastating news.”

              It’s a little more complicated than a prosecutor botching the case from what I have gleaned from press reports. Just bear this in mind- there’s a difference between doing justice and doing right. It may have been just to reverse the conviction of Cosby though it may not have been right in a greater moral sense.

              Like Trumpists who created the false narrative that the Mueller Report “exonerated” Trump (when the report explicitly said it did NOT), Cosby loyalists claim that this Court ruling exonerates him. It does not. A jury found him guilty though he was released because his right of due process was violated. I will cancel him despite Republicans arguing that no one should be “cancelled.” I will boycott his performances in the future, for I went to one of his live performances years ago, and it was hilarious. He was a comic genius.

      2. KarenS reminds us:

        “Sexual harassment and leveraging job opportunities is absolutely real. Human beings tend to abuse power, often for sexual gratification.”

        Men were as unmindful as to the REALITY of sexual harassment in the workplace as whites are oblivious to their privileges over blacks. There was pushback then, and there is pushback now.

        Ask yourself this- ALL ELSE BEING EQUAL- would you want to be a black person? I can honestly answer “No.”

        1. Jeff:

          Women can be just as guilty of sexual harassment as men. I’ve observed it often in the workplace. For some reason, women seem to get a pass on blatant harassment. I saw a video where a 19 year old on American Idol confessed that he’d never kissed a girl before. He was saving his first kiss. Katy Perry told him she was going to kiss him on the cheek, which pressured him on national tv to comply. When he came close, she kissed him on the mouth. https://youtu.be/1xDnSLZ4tJI

          If a man had done this, there would be marches, genitalia hats, and mass outrage. But since it’s a woman, it’s OK.

          Why do you think men are oblivious to the presence of sexual harassment in the workplace? You think your gender doesn’t understand it’s going on, both by male and female perpetrators? That doesn’t ring true. I think both male and female perpetuators know exactly what they’re doing, but they feel entitled. I think those who exchange favors for promotions know exactly what they’re doing, but they think it’s worth it. I think men and women who won’t participate know it’s going on, and object.

          You asked me if I’d like to be black. Neither black nor white people would change their race if given the chance. That’s because for better or worse, people are comfortable in their own bodies, and the thought of having a completely different body of any kind is weird.

          If you asked a black woman if she’d change to be a white woman if given the chance, she’d likely be either offended, or just say absolutely not.

          Would you walk up to LeBron James and ask him if he’d rather be a white man? I seriously doubt he’d play for the Lakers as a white man.

          There is an interesting phenomena of white people identifying as black people or person of color. The most recent case was a British white Youtuber who has had multiple surgeries to look Korean. The natural evolution of gender fluidity is racial fluidity. During times when there really was systematic racism against black people, those of mixed race with pale skin, who had an option of which way to identify, tended to identify as white. Those who subscribed to the “one drop” rule referred to this as passing.

          Nowadays, the trend is for mixed race people to identify as black, or biracial, and for white people to self identify as black. The newest term is transracial.

          In Nazi Germany, non Jewish people didn’t claim to be Jewish. They didn’t feel like a Jewish person trapped in a Gentile’s body. They didn’t make up antisemitic hoaxes, because the reality was that Germany was systematically bigoted towards Jews, and it was a very dangerous place for a Jewish person.

          This trend in hate crime hoaxes, trans racialism, and with mixed race people identifying as either black or mixed rather than just claiming a white identity illustrates that no matter the Leftist rhetoric, they do not consider systematic racism to be a problem, and they are apparently having a difficult time coming up with bona fide hate crimes.

          If someone really thought that it was dangerous to be a black person in the US, that white people were out to get them, and that the entire system was out to get them, then mixed race people would identify as white, and never mention their heritage. There would be no black transracial people. There wouldn’t be people claiming to be Native American who aren’t. People wouldn’t be so happy to discover Native American or black lineage in their DNA tests.

          Actions are not lining up with rhetoric.

          1. Karen,

            You are engaging in a number of straw man arguments. I would not make some of the arguments which you are rebutting. The mindless harassment to which I am referring would be complimenting a woman as “hot,” or staring rather than glancing at her bust or giving her an open-handed slap on her ass for a job well done (ok, I’m joking about the last one!). The seemingly innocuous things of which men have been insensitive, not your example of consensually sleeping with boss to advance one’s prospects!

            And, of course, I don’t deny that there is a double standard for harassment by women. There is an obvious difference which might explain it- women have sex with a man to get something they need, but for men, sex IS what they need! (Ok, I’m exaggerating, but it is often true).

            As far as a black individual wanting to be white, the question is not whether they would change their race once born; but whether they would have preferred to have been *born* white. There are always exceptions to every general proposition, e.g., a Lebron James, whose natural gifts were not hampered by his color.

            Unfortunately, this whole notion of systemic racism has been mischaracterized deliberately so by those who refuse to acknowledge it. Perhaps, had it NOT been called “white privilege,” but rather “black disadvantage,” whites would take less umbrage. Take for instance, the British nobility, who are afforded privileges by virtue of their birth. Is there any doubt that they have privileges over commoners? Would aristocrats even try to deny it? Americans reject that class system in principle, but in practice, we had an unwritten and unspoken class system until laws were passed to grant blacks equal civil rights. But some of the attitudes and vestiges of that disparity pervade which I suspect CRT attempts to illuminate and address- just like the Me Too movement (which also faced pushback).

            Of course there are blacks who are demagogues who will act in bad faith trying to exploit CRT in order to hustle just as there are white demagogues and talk show hosts who will characterize CRT in bad faith as Marxism.

            Unfortunately, this controversy is being waged on cable TV. And the program producers of Fox News. et.al., know that going on the defensive night after night pushing back against the headline stories on their competitors’ networks makes for bad TV. Instead, Fox ignores the stories reported by the mainstream and goes on the offensive with its own stories which the mainstream is either downplaying or ignoring, e.g., Hunter Biden, the immigrant “invasion,” etc. Going on the attack is more engaging for its viewers.

            We must always be mindful that all cable networks are businesses and will tailor their narratives to cultivate ratings. Of course, I believe Fox News is worse than the mainstream in this regard, but we need not argue that point. The salient point is that the coverage of CRT is being politicized for ratings gold.

    3. Jeff Silberman always tells just half of the story. He fails to mention that the Washington Post lost a defamation lawsuit to Nicholas Sandman of the Covington Kids. In his trying so hard to honestly inform us he leaves out the facts that Professor Turley has appeared on Countdown with Keith Olberman, The Rachel Maddox Show, Meet The Press, ABC This Week, Face The Nation and Democracy Now. Professor Turley has written articles for the NewYork Times, The Washington Post and the L.A. Times. Hardly bastions of the conservative news media. https://en.wikipedia.org/wiki/Jonathan_Turley. This information is easily found but instead of researching before he makes his comments he simply continues with his daily Turley Derangement Syndrome. It seems that one can present all the information one can debunking Silberman’s daily Turley obsession yet he continues on ad nauseam. He is often joined by eb in the sharing of their favorite pacifier. They will surely loudly cry if they have to give it up.

      1. Think,

        Turley wrote a blog post noting CNN settling the lawsuit with Sandman. Fair enough.

        I’m just wondering whether he will write a blog post about Fox settling its human rights violations and its chilling use of NDA’s?

        I can’t ask the question?

        As I have repeatedly stated, we will see who will stand with Turley in the weeks and months to come. Trump now calls Bill Barr “afraid,” “weak,” “pathetic” and a “swamp creature.” Because Turley stands foursquare behind him, such name-calling is in store for Turley. You have already seen some posts here questioning his comments about Trump’s conduct and statements. It’s only going to get worse as the law closes in on Trump’s company and possibly Trump himself. He will never join those who call the investigation a persecution- a witch-hunt. On the contrary, he will defend it as a legitimate prosecution which will enrage the Trumpists. And when you and others like you begin to vilify Turley, I’ll defend him as I have up to now. My complaint has been that Turley has failed to do enough to denounce Trumpism and Fox News which weaponized it. When push comes to shove, Turley will be on my side, not yours.

    1. The Gateway Pundit is fake news.

      And just like that, The Gateway Pundit is discredited!

    2. There are advantages to good old-fashioned paper ballots, physical records that can be inspected and archived.

      Perhaps I’m biased by how many times my rainbow wheel shows its jaunty face, or by the Colonial Pipeline ransomware hack, but I don’t particularly trust digital voting or self driving vehicles.

      1. ” I don’t particularly trust digital voting or self driving vehicles.”
        Nor I; nor do I trust the internet of things. My refrigerator and hot water tank can be connected to the internet but neither has been.

  7. Can you make suicide a criminal act, including a penalty?

    Can you dictate what free people do? That’s an oxymoronic contradiction in terms.

    Americans have the freedom of ingestion but they can’t cause property damage or bodily injury.

    1. George– In fact at common law suicide is a felony. The punishment is to have a stake driven through the heart and be buried at s crossroads.

      Kevorkian was prosecuted using this law. He assisted a suicide and thus assisted a felony which assistance was itself a felony.

  8. Marijuana is not the herbal sedative it was decades ago. It has been selectively bred to be 7 times more potent than it was in the 1960s.

    Edibles, especially, are associated with psychosis and ER visits.

    It has medical applications, especially for pain relief. But it impairs drivers, its effects last longer than alcohol, and it’s associated with serious psychological problems. Some of our friends live in Northern CA, where there are many illegal grows. Once the grows spread, they had issues with repeated thefts of expensive equipment. They diverted a natural stream for irrigation. One of the oil labs blew up and started a forest fire. Growers tend to keep unsocialized, vicious dogs to defend against theft. (Ironic, being that these are illegal grows.) One of the dogs kept getting out and coming onto their property. He was extremely unfriendly.

    I don’t think it should be illegal in all uses, but I do think we should approach with caution. It is not the harmless herb that proponents would lead us to believe. If the nation does decide to legalize it, then its health hazards need to be fully disclosed. That way people can make an informed decision about what to put into their bodies.

    This is one of those contentious issues that we need to legislate, instead of either expecting government to ignore unpopular laws, or expecting the SCOTUS to take it off Congress’ plate.

    This is a job for Congress.


    “The study found that those who used pot daily were three times more likely to have a psychotic episode compared with someone who never used the drug.

    Those who started using cannabis at 15 or younger had a slightly more elevated risk than those who started using in later years.

    Use of high-potency weed almost doubled the odds of having psychosis compared with someone who had never smoked weed, explains Di Forti.

    And for those who used high-potency pot on a daily basis, the risk of psychosis was even greater — four times greater than those who had never used.

    The easy availability of high-THC weed is a recent phenomenon, she notes. “Almost 20 years ago, there wasn’t much high-potency cannabis available [in the market].”

    One recent study showed that high-potency cannabis is increasingly dominating markets. It found that the average potency of weed in Europe and the U.S. in 2017 was 17.1 percent, up from 8.9 percent in 2008.”


  9. It’s just like immigration law. The feds claim to have the authority. There are laws on the books. But they won’t enforce it.

    I guess this is just how we govern now.

    1. Karen, I have been giving that some thought. I think states are going to have to step forward and reclaim disused jurisdiction. Some are. On a related matter I notice that the Court may decide an issue on ballot harvesting in Arizona. The 9th ruled against the state’s ban on it and it is going to the Court. If the Court sustains the 9th circuit and allows ballot harvesting [and fraud] I think it will almost be time for the state to tell the Court to pound sand. You weren’t around for critical election issues, we don’t really give a crap what you think on this one. Of course, if they support the Arizona law it will be sacred and the law of the land. I don’t think I need to be more consistent than anyone else is in these troubled times.

      According to a recent poll public trust in the federal government is at a shocking low. At some point they lose the ability to enforce their will. The feds can’t function efficiently without state support and possibly very little at all without public support. In a sane and civilized society compliance with the law occurs because we believe in the government and want to comply with it. When the federal government loses that public belief and willingness it loses a lot. We know we have state governments that can sometimes do better without a federal government that looks like a Ringling Brothers performance.

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