The United States Supreme Court recently considered the constitutionality of a series of laws regulating the use of marijuana. The Court determined that the state of Colorado cannot use its police powers to ban the sale of marijuana and instead must only regulate the marijuana industry.

Last week, the Supreme Court considered one of the most important cases of the term regarding the federal government’s prosecution of medical marijuana dispensaries. The issue in United States v. Oakland Cannabis Buyers Cooperative, is whether the federal government may prosecute marijuana dealers under the Anti-Drug Abuse Act of 1986 (ADA) for selling marijuana to medical patients.

The current approach of the federal government is a mix of tolerating and banning local use of marijuana. This contradictory and unstable state of affairs disturbs the basic principles of federalism and creates a trap for the incompetent. […If the government is now content to allow the states to act as laboratories and try out new social and economic experiments, it may no longer have the right to interfere with the fundamental police powers of the states to establish criminal law and protect the health, safety and welfare of their citizens. Prohibiting the use or cultivation of marijuana in a state may no longer be necessary or appropriate to support the federal government’s step-by-step approach.

This statement, from the hand of a very conservative Supreme Court justice, Clarence Thomas, points to a shift, even on the far right of the political spectrum, regarding prohibition policy in the United States. By pointing out the internal inconsistency of the federal position on cannabis and declaring that previous Supreme Court rulings in favor of cannabis prohibition should be reviewed, Judge Clarence Thomas has become an unlikely advocate for common sense reform.

Understandably, business owners in Colorado feel that their marijuana businesses are treated the same way as any other legal business in the state under state law. But as petitioners have recently established, legality under state law and the absence of federal prosecution do not guarantee equal treatment, he said, after the court declined to hear such a case. The government’s willingness to turn a blind eye to marijuana is episodic rather than consistent.

The Department of Justice further points out the many problems with the federal government’s controversial actions, such as imposing various taxes on businesses that legalize cannabis in states, requiring them to operate exclusively in cash because federal law prohibits banks from partnering with cannabis businesses, prohibiting cannabis businesses from having security guards, and many other absurd laws. A marijuana user can also become a federal criminal just by possessing a firearm, he notes, or companies can get on the wrong side of a civil suit under the Racketeer Influenced and Corrupt Organizations Act, Judge Thomas wrote.

Support from both sides

It has been repeatedly confirmed that support for marijuana legalization at the federal level is bipartisan and currently nearly universal: According to the Pew Research Center, 91 percent of American adults believe marijuana should be at least partially legal, including 87 percent of Republicans. In theory, the GOP defends individual liberty, especially free trade, and opposes excessive government intrusion. So it makes sense that Republicans would be the first to advocate for the legalization of marijuana. Judge Clarence Thomas has taken this important first step to ensure that important voices on the right have a reason to defend marijuana legalization. And what a voice!

The U.S. Supreme Court gave us marriage equality, abortion rights, and an end to racial segregation in schools. It could also get us the legalization of marijuana if the judges decide to support the will of the people. In Gonzales v. Reich (2005), the court ruled that federal cannabis prohibition trumped state legalization laws; but since 2015, Congress has issued annual rulings prohibiting any federal agency from interfering with legal cannabis at the state level. Whatever Raich’s merits at the time of his decision, federal policy over the past 16 years has clearly undermined his argument, Thomas notes, indicating that it may be time to reconsider the federal status of cannabis.

Coincidentally, Judge Clarence Thomas’ statement came just days after Mexico’s own Supreme Court legalized cannabis throughout the country, showing that the United States can do the same.

In 2018, the Mexican Supreme Court ruled that marijuana prohibition was unconstitutional and ordered lawmakers to legalize it. Although Mexican lawmakers asked for and received several postponements to pass such legislation, they were unable to legalize marijuana because the Mexican Congress got stuck in a partisan political net. The Supreme Court didn’t wait for the legislature any longer; it declared the ban unconstitutional and voted 8-3 to unilaterally end the marijuana ban.

De facto legality

As a result, the possession and personal cultivation of marijuana is now de facto legal throughout Mexico. However, without the cooperation of the legislature, the Supreme Court could not create a regulated and taxable sales system. After three years, the Mexican Congress has failed to pass a law due to conflicting interests and pressure from the pharmaceutical and tobacco industries, but it is up to them to create a fair and legal market for the now legalized cannabis products.

While this situation is not ideal, it is nonetheless a way out of the impasse Mexico has been in for years due to the unwillingness of a handful of legislators to act. The previous status quo was easy enough for legislators to do nothing while the public suffered. As a result, the Supreme Court overturned the ban and is now forcing lawmakers to act. The decision could come from Congress, but also from Mexican President Andrés Manuel López Obrador, who has proposed putting the issue directly to a referendum. It is not yet clear what terms will be put before voters, but since Obrador has not opposed legalization, it seems likely that the referendum will propose a system of regulated sales to build on the Supreme Court decision.

Whatever path Mexico chooses in the future will be the right one. The US federal government is still waiting in the wings. If the most conservative of the Supreme Court judges can be persuaded to overturn the ban on cannabis, one can hope that our Supreme Court will follow in the footsteps of our southern neighbours. For as things stand, the United States is a foreign country, still clinging to the prohibitions of the Nixon era, sandwiched between Mexico and Canada, who have chosen freedom and progress.

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