The future of the cannabis industry under President Trump remains hazy and Judge Neil Gorsuch’s Supreme Court nomination does little to clear the fog. Judge Gorsuch currently serves on the 10th US Circuit Court of Appeals. Though he is a native of cannabis-friendly and uber-liberal Boulder, Colorado, he is himself a conservative judge. As far as we can tell, he has never publicly opined on cannabis legalization, but he has authored a few opinions relating to cannabis that give at least a hint at his stance on cannabis.
In US v. Daniel and Mary Quaintance, defendants were indicted on federal charges of conspiracy and possession with intent to distribute cannabis. The Quaintances claimed protection under the Religious Freedom Restoration Act which prohibits the federal government from “substantially burdening” sincere religious exercise. The Quaintances argued that marijuana was a sacrament at their church and therefore their use cannabis use was legally protected.
The District Court denied the defendants’ motion to dismiss. Judge Gorsuch upheld the lower court’s ruling because “extensive evidence” showed that “the Quaintances’ professed beliefs are not religious but secular” and that the facts indicated “that the Quaintances don’t sincerely hold religious beliefs they claim to hold, but instead seek to use the cover of religion to pursue secular drug trafficking activities.” My reading of this case says that most judges would have ruled the same way, based on the facts.
In Family of Ryan Wilson v. City of Lafayette and Taser International, Judge Gorsuch held lawful a Colorado police officer’s fatal use of a Taser on a man fleeing a cannabis arrest. Judge Gorsuch acknowledged that the manufacturing and processing of marijuana may not be “inherently violent crimes” but that the officer was justified in assuming that a person illegally growing marijuana may be armed and so the officer was also justified in using a Taser. Yes, a person illegally growing marijuana may be armed, but so may anyone else. Judge Gorsuch’s ruling in this case seems to indicate he does not have a particularly good view of those who grow cannabis, at least illegally.
Feinberg et al. v. IRS provides the most insight into Judge Gorsuch’s thoughts on legal cannabis. In this case, a Colorado dispensary argued that Fifth Amendment protections allowed them not to report data to the Internal Revenue Service. The Fifth Amendment shields individuals from testifying to criminal activity likely to lead to prosecution. The petitioners argued that marijuana production and distribution is a crime under federal law and by reporting their marijuana business activities to the IRS they would be inviting federal prosecution. Though Judge Gorsuch ruled against the petitioners, his written analysis did not embrace the federal government’s often perplexing stance on marijuana.
Judge Gorsuch acknowledged that the federal government sends a “mixed message” on legal cannabis, with the Department of Justice instructing prosecutors not to enforce federal law in states like Colorado but with the IRS refusing to recognize business expense deductions for marijuana businesses because their conduct violates federal law:“[s]o it is that today prosecutors will almost always overlook federal marijuana distribution crimes in Colorado but the tax man never will.”
Judge Gorsuch also noted the government’s inconsistent argument as to why marijuana businesses are both illegally and yet cannot claim Fifth Amendment protection for tax purposes:
Yes, the Fifth Amendment normally shields individuals from having to admit to criminal activity. But, the IRS argued, because DOJ’s memoranda generally instruct federal prosecutors not to prosecute cases like this one the petitioners should be forced to divulge the requested information anyway. So it is the government simultaneously urged the court to take seriously its claim that the petitioners are violating federal criminal law and to discount the possibility that it would enforce federal criminal law.
Finally, and now that Trump has selected Jeff Sessions as his AG, prophetically, Judge Gorsuch noted the shaky legal footing under which the cannabis industry has flourished:
It’s not clear whether informal agency memoranda guiding the exercise of prosecutorial discretion by field prosecutors may lawfully go quite so far in displacing Congress’s policy directives as these memoranda seek to do. There’s always the possibility, too, that the next…Deputy Attorney General could displace these memoranda at anytime.”
Judge Gorsuch is only 49 years old, meaning his lifelong tenure on the highest court could span decades and will almost certainly involve a cannabis case or two. Though the above cases reveal very little about Judge Gorsuch’s position on cannabis, his overall judicial philosophy may bode well. He is a strict constructionist when it comes to interpreting our Constitution and strict constructionists tend to favor states’ rights. If Judge Gorsuch does indeed favor states’ rights, as we suspect, this should mean that he will have no problem with individual states (as opposed to the Federal Government) deciding on their own cannabis laws.
Let’s hope so.