Mexico + Clarence Thomas = weed legalization? Don’t bet on it

“The Haymaker” is Leafly Senior Editor Bruce Barcott’s opinion column on cannabis politics and culture.

In a matter of hours, the supreme courts of Mexico and the United States on Monday issued rulings that could have profound implications for the legalization of cannabis in both countries. But don’t light those celebratory joints just yet. In the bizarre world of cannabis politics, sometimes what looks up turns out to be down.

On Monday, Mexico’s Supreme Court declared the cannabis ban unconstitutional. If you thought this already happened, you are right.

As early as October 2018, the Supreme Court ruled that the ban on marijuana was unconstitutional. The judges then gave lawmakers time to enact a law to legalize and regulate – two and a half years, in fact.

And nothing happened to Mexico’s politicians in those two and a half years. Tired of the endless delays, the Supreme Court stepped in and said enough.

The Associated Press reported that Monday’s court ruling means that “people who smoke marijuana or want to grow some potted plants for their own use can apply for government approval until some laws are in place.” These permits have been in existence since 2015, but they were only issued on the basis of court orders. It remains unclear whether adults need a permit to own and grow cannabis or just a permit to grow cannabis, and how exactly they should apply for it.

Kyle Jaeger of Marijuana Moment, who has been closely following the situation in Mexico, reminded us of a prediction made by Mexico’s Senate Majority Leader Ricardo Monreal Avila in April. Avila said a court ruling of unconstitutionality would lead to “chaos” if it came before a regulatory system was put in place.

This chaos has now occurred. Cannabis is legal in Mexico, but no one knows exactly how, when or where.

Clarence Thomas shocks the world

Meanwhile, the US Supreme Court in Washington DC fired a shot across the bow of the American ban. Clarence Thomas, one of the oldest and most conservative members of the Supreme Court, wrote that “the prohibition on domestic use or cultivation of marijuana may no longer be necessary or appropriate” to support what he calls the federal government’s “chunky approach” Criticized cannabis regulation.

Thomas’ words have no legal force as they were only included in an explanation accompanying Certiorari’s refusal to issue a case involving a Colorado medical dispensary. This pharmacy challenged the Internal Revenue Service’s outdated and onerous 280E tax rule, which severely penalizes state cannabis companies for trafficking a state illegal substance.

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A strong warning

Thomas’ words were made even stronger by the precedent set by Judge Brett Kavanaugh on June 21st. In the NCAA v. The court’s Alson decision, which lifted the ban on paying college athletes, made it clear to Kavanaugh’s consensus (not the main decision itself) that any future attempt by the NCAA to protect its archaic “amateur” business model would be despised by the judges be confronted. If you bring back that bullshit of students and athletes, Kavanaugh seemed to be saying, you are going to lose, and seriously.

Thomas’ note sent a similar message. The most traditional conservative in the Supreme Court sees no reason to uphold the cannabis ban.

An alternative route to legalization?

In light of Kavanaugh’s Alson opinion, Thomas’ certiorari Note and the Mexican Supreme Court ruling seem to offer a seductive alternative route to legalization. What if state legalization was done not by Congress but by a US Supreme Court ruling that broke the ban once and for all?

If Clarence Thomas can’t justify the ban, legalization could have a pretty good chance with the others.

It’s tempting, I know.

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Don’t fall for it

Here is the problem. In Congress, the House of Representatives has already passed legalization in the form of the MORE Act. The only thing standing in the way of an end to Prohibition is the US Senate, whose members are very old and extreme in their habits – especially when it comes to marijuana. Many of these Senators, Democrats and Republicans, do not want to cast a vote that they believe could be seen as an advertisement for weed.

Judge Thomas’ note may open them to the realization that it is time to end the ban. Unexpected sources have a way of doing this. Or his note could be seen as a way to give those weak senators a way to bypass a vote entirely: why not wait for the Supreme Court to declare the ban unconstitutional? Let the judges do the dirty work.

That, after all, is the Mexican senators’ strategy. They hesitated two and a half years before the Supreme Court was forced to act. Marijuana is slated to become legal in Mexico without regulation. In the minds of these senators, that may make voting easier as they are now cleaning up an unregulated mess rather than promoting the enjoyment of weed for adults.

Don’t let the US Senate off the hook

Clarence Thomas is right. The federal government’s handling of marijuana is no longer a “watertight nationwide ban”. The last major Supreme Court marijuana case, Gonzales v Raich, was ruled in favor of a ban in 2005. The rationale for this decision, wrote Thomas on Monday, has been “severely undermined” by the federal government’s response to state legalization over the past 16 years.

It is time to end the ban. It is the duty of the US Senate to do so. Don’t let your own senator mortgage the job on the Supreme Court. Call and tell them that you are their voter and expect them to do the right thing. Now.

The Haymaker: Always ready to mix it up

Bruce Barcott

Leafly Senior Editor Bruce Barcott oversees news, research, and feature projects. He is a Guggenheim Fellow and author of Weed the People: The Future of Legal Marijuana in America.

View article by Bruce Barcott

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