Clarence Thomas challenges the consensus on marijuana regulation

Justice Clarence Thomas is a man standing athwart history, yelling, Stop!  He is unafraid to write what he believes, no matter if he is in the majority or writing alone.  The legal arguments he has advanced, many of them well before they were cool, have significantly shifted the American legal tradition in an originalist, textualist, and ultimately constitutionalist direction. 

And after decades, he's at it still.

The delightfully named Standing Akimbo v. United States, a case in which a marijuana dispensary sued to prevent the IRS from accessing its financial records, fell flat as it was recently denied judicial review by the Supreme Court.  Justice Thomas's corresponding statement deals a body blow to the legal rationale behind a good deal of the federal government's current marijuana policy.  And although drug decriminalization is not a popular position on much of the political right, conservatives — even social conservatives — should take Thomas's arguments seriously and support reforms to our nation's impractical and unconstitutional cannabis regime. 

Thomas's fundamental argument deals with the reasoning of Gonzales v. Raich: back in 2005, the Supreme Court found that a total federal ban on the devil's lettuce was "necessary and proper" to maintain a "comprehensive" regulatory grip on the "interstate market" for the drug.  Since 2005, however, these "comprehensive" policies have become "more episodic than coherent" — a maddening breakfast scramble of benign neglect and selective enforcement.

Thomas elaborates: since 2009, the Department of Justice has officially declined to interfere with state efforts at decriminalization (with a Jeff Sessions–length interlude).  What's more, in each year since 2015, Congress has forbidden the DoJ from "spending funds to prevent states' implementation of their own medical marijuana laws."  Thomas argues that as federal drug policies have liberalized, what was considered necessary and proper by a prior Court may no longer be.

Thomas notes that this federal leniency only goes so far, however, and that the "episodic" nature of the drug regime causes chaos.  Indeed, Standing Akimbo's dispute with the IRS originated with the dispensary's inability to file federal taxes like other businesses.  In addition, Thomas notes that dispensaries are often forced to operate with cash because many financial institutions are prohibited from providing services to them.  And although cash businesses are disproportionately likely to fall victim to robbers, further regulations deny dealers of controlled substances access to the right to self-defense. 

Thomas' Standing Akimbo statement doesn't address the merits of the court's opinion in Raich — an opinion from which he vigorously dissented.  In that dissent, C.T. questioned the constitutionality of federal control over private, intrastate — not interstate — growth and use of marijuana. 

Thomas wrote against the expansion of the Commerce Clause — which empowers the Congress to "regulate commerce ... among the several states" — to include any matter that affects even interstate commerce: "The majority's opinion only illustrates the steady drift away from the text of the Commerce Clause.  There is an inexorable expansion from 'commerce,' ... to 'commercial' and 'economic' activity ... and finally to all 'production, distribution, and consumption' of goods or services for which there is an 'established ... interstate market.'"  

Conceding to Congress such broad, plastic authority incinerates all notions of limited government and enumerated powers.  In short, anything can be related to interstate commerce if one possesses sufficient mental flexibility — weed or wheat, it matters not.

Thomas's dissent went on to dismantle the supposed constitutional necessity and propriety of enforcing the Controlled Substances Act against the respondents based on the facts of the case. 

The Standing Akimbo statement and the Raich dissent combine to raise a question to social conservatives who claim to value originalism and the rule of law.  How can the CSA's excesses be squared with Article I, Section 8 and the Tenth Amendment?  Over the past few decades, conservatives have argued that the Constitution has a fixed meaning and that the correct way to alter it is amendment, not overreach.  They have largely won the argument, as attested by the ascendancy of the Federalist Society and the outcomes of such cases as the Coach Kennedy caseBruenWest Virginia v. EPA, and Dobbs v. Jackson.  Today, a conservative abandonment of originalism would be an act of ideological and political self-immolation. 

Clarence Thomas's personal views of marijuana are unknown, but his legal philosophy is clear.  He will interpret the Constitution as written — full stop.  Conservatives who believe that cannabis presents an existential threat to society should pursue a constitutional amendment or state-level regulation.  Article V and the Tenth Amendment are the law of the land, after all. 

Sometimes, defending the Constitution requires one to make peace with objectionable policy proposals.  The ideological friction may be uncomfortable, but this is Justice Thomas's challenge to all conservatives.

David B. McGarry is a Consumer Choice Fellow with Young Voices.  His work has appeared in such publications as RealClearPolicy and National Review.  Follow him on Twitter at @davidbmcgarry.

Image: RawPixel.

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