The Trump Administration has been largely inconsistent in their messages to the marijuana industry. Even how the newest member of the judicial branch, Neil Gorsuch, feels about weed is obscure. While positive support for cannabis rang true across the country the same night Donald Trump won the presidency, the industry has yet to get a clear indication of the actions the new administration may take.
When it comes to the newest member of the United State Supreme Court, Neil Gorsuch poses one of the most immediate dangers to the industry as a whole. Not because he has personally rebuked marijuana laws or ruled unfairly against a marijuana-related business during his tenure in Denver, but due to the sweeping power the judicial branch could have if they review the definition of “preemption” in state and federal laws.
As the senate has already gone nuclear (eliminating the filibuster) in confirming Judge Gorsuch, and Jeff Sessions, the new Attorney General, has been a longtime supporter of mandatory minimums and strong, prohibitive marijuana laws, the path ahead is charged by both social investment (aka votes!) and somewhat negative speculation about the industry’s future. Either way, there has been a definite increase of political rhetoric being used regarding enforcement priorities by Administration officials.
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Past Trials
Gleaning any sort of understanding regarding how Neil Gorsuch feels about weed is difficult to do based on the information available. In no cases, has he favored criminal penalties for marijuana businesses or pursued a clear bias towards marijuana under state law.
Feinberg et al. v. IRS
In 2015, Judge Gorsuch reviewed an appeal from a Colorado-based dispensary. The dispensary had applied for business-tax deductions but had refused to dismiss the details of the type of business as it could be seen as self-incrimination. This move also significantly lowered their tax bill. After all, drug distribution remains a federally illegal offense, and it is by that very fact the IRS dismissed the business-tax deductions, resulting in more taxes paid by the dispensary owners.
Was this a judgment specifically against marijuana? Is it an assurance that all taxes must be paid regardless of the legal limbo the industry operates under? Furthermore, which is right in a federal appeals court?
U.S. v. Daniel Dean and Mary Helen Quaintance
The next example of how Neil Gorsuch may feel about weed comes from a ruling in 2010 after a church preaching the sacrament of marijuana as a religious cause ended up providing the plant to patients and members at a cost. In effect, this allowed them to operate an untracked commercial marijuana enterprise. Gorsuch ultimately ruled that the motivations for the religious front were to provide commercial marijuana. Furthermore, the “Religious Freedom Restoration Act”, which would allow a church to use a federally illegal substance if there is a bonafide ceremonial or religious reason does not cover, Gorsuch felt, the secular nature of cannabis worship.
Is this an example of the impertinence Gorsuch shows toward marijuana or does it protect the public from abuses of federal religious protections for commercial gain? If so, what does that mean for Gorsuch and his socially conservative values when combined with the bravado of the new administration?
Wendy & Jack Wilson, on behalf of Ryan Wilson v. City of Lafayette, Lafayette PD, et al.
In 2013 Judge Gorsuch ruled on a case which justified an officer’s use of typically non-deadly force to a tragic conclusion. While investigating an illegal marijuana growing operation in Lafayette, Colorado, an officer startled the grower. At the time, Ryan Wilson was operating a marijuana growing facility beyond the realm of legal activity under Colorado’s medical marijuana laws (recreational had not yet been voted on). A botched attempt by Wilson to flee prosecution resulted in the officer ultimately using his taser on Mr. Wilson, who, unbeknownst to the officer at the time, suffered from a heart condition. Mr. Wilson died as a result.
While Judge Gorsuch chose to view the actions of the individual as more contemptible legally than the tragic and fatal miscalculation by the officer. Judge Gorsuch does note the growing, processing, and manufacturing of marijuana are inherently nonviolent crimes, but in the context of Colorado law at the time, Mr. Wilson’s actions were felonies.
Does this communicate a preference in the right of law over the rights of people? Is the death of Mr. Wilson discounted by the fact he was a committing felony-level marijuana crime at the time? Are the officer’s non-lethal actions justified despite the fatal consequences? What precedent does this set for individuals growing legally? What can the marijuana industry extrapolate from this?
The Supremacy Clause
If the above cases offered little insight to how Neil Gorsuch feels about weed, you are not alone. While conservatives tend to favor state rights, his placement in the supreme court shifts conservative lean to the country’s highest court for what may be decades to follow. One of the places, as reported by Vice News, Gorsuch and a conservative majority judicial branch could use to not just undermine the will of voters in states where marijuana has become legal is in the legal priority of “preemption.”
Federal preemption is kinda like if you are a kid who has an idea and your parents tell you not to pursue it. While that is frustrating, what truly makes it confusing is when you ask why, and your parents just get mad at you and threaten to take away your allowance. More technically, federal preemption is derived from the Supremacy Clause of the U.S. Constitution, which says that federal law, when conflicting with state law, is the dominant legal structure. If the supreme court were to order the strict enforcement of federal marijuana laws, the effect would be sweeping.
As is currently, the Justice Department cannot dedicate funds to the prosecution of medical marijuana under most circumstances in states where the practice has been legalized, but a decision by the Supreme Court that federal law preempts state laws could eradicate both medical and recreational protections almost immediately. However unlikely, the lack of information on how Neil Gorsuch feels about marijuana is met at a time of too many questions, rapid evolutions, and political uncertainty in the cannabis industry.
