Where does Trump Supreme Court nominee Neil Gorsuch stand on marijuana law?

Dylan Stableford

Senior Editor

Yahoo NewsFebruary 1, 2017

President Trump’s Supreme Court nominee, Neil Gorsuch, is a native of Colorado, the first state to legalize marijuana for recreational use. So where does Gorsuch stand on the pot issue?

It’s not entirely clear.

Gorsuch, a conservative federal judge on the 10th U.S. Circuit Court of Appeals in Denver, has not voiced his views on legal weed — at least not publicly.

But the 49-year-old, who lives with his family in the cannabis-friendly college town of Boulder and teaches at the University of Colorado Law School, has offered a written opinion in several marijuana-related cases.

In 2010 (U.S. v. Daniel and Mary Quaintance), Gorsuch ruled against a couple who tried to argue that federal marijuana distribution offenses should be dismissed on religious grounds because he found the defendants to be insincere:

Daniel and Mary Quaintance responded to their indictment for conspiracy and possession with intent to distribute marijuana with a motion to dismiss. They didn’t deny their involvement with the drug, but countered that they are the founding members of the Church of Cognizance, which teaches that marijuana is a deity and sacrament. As a result, they submitted, any prosecution of them is precluded by the Religious Freedom Restoration Act (“RFRA”), which forbids the federal government from substantially burdening sincere religious exercises absent a countervailing compelling governmental interest.

After taking extensive evidence, the district court denied the motion to dismiss. It held, as a matter of law, that the Quaintances’ professed beliefs are not religious but secular. In addition and in any event, the district court found, as a matter of fact, that the Quaintances don’t sincerely hold the religious beliefs they claim to hold, but instead seek to use the cover of religion to pursue secular drug trafficking activities.

In 2013 (Family of Ryan Wilson v. City of Lafayette and Taser International), Gorsuch held that a Colorado police officer’s fatal Taser use on a man who was fleeing a marijuana arrest was justified:

Illegal processing and manufacturing of marijuana may not be inherently violent crimes but … they were felonies under Colorado law at the time of the incident. And Officer Harris testified, without rebuttal, that he had been trained that people who grow marijuana illegally tend to be armed and ready to use force to protect themselves and their unlawful investments.

And in 2015 (Feinberg et al. v. IRS), Gorsuch ruled against the owners of a Colorado dispensary who had refused to turn over data to the Internal Revenue Service because they feared they would be incriminating themselves, since marijuana remains illegal under federal law:

This case owes its genesis to the mixed messages the federal government is sending these days about the distribution of marijuana. The Feinbergs and Ms. McDonald run Total Health Concepts, or THC, a not-so-subtly-named Colorado marijuana dispensary. They run the business with the blessing of state authorities but in defiance of federal criminal law. Even so, officials at the Department of Justice have now twice instructed field prosecutors that they should generally decline to enforce Congress’s statutory command when states like Colorado license operations like THC. At the same time and just across 10th Street in Washington, D.C., officials at the IRS refuse to recognize business expense deductions claimed by companies like THC on the ground that their conduct violates federal criminal drug laws. So it is that today prosecutors will almost always overlook federal marijuana distribution crimes in Colorado but the tax man never will.

“Yes, the Fifth Amendment normally shields individuals from having to admit to criminal activity,” Gorsuch explained. “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.”

Outside of those cases, there isn’t much on Gorsuch’s pot stance to go on. However, one of Gorsuch’s former students told a website called the Joint Blog that he once asked the Colorado jurist whether he supports legalization of marijuana.

Gorsuch reportedly responded by saying that he “at the very least” supports states’ rights in regulating marijuana. Cannabis, like heroin and LSD, is currently a Schedule I drug under federal policy, “defined as drugs with no currently accepted medical use and a high potential for abuse.”

The cannabis industry remains cautiously optimistic Gorsuch will allow states to continue their march toward marijuana legalization. (Yahoo News photo illustration; photos: AP)

The cannabis industry remains cautiously optimistic that Neil Gorsuch, if he is confirmed as a Supreme Court justice, will allow states to continue their march toward marijuana legalization. (Yahoo News photo illustration; photos: AP)

If the account is true, that would put Gorsuch more or less in line with the man who nominated him.

At a campaign event in October 2015, Trump said he thinks legalization of pot should be “a state issue, state-by-state.”

In an interview with Fox News that year, Trump said he supports medical marijuana “100 percent.”

Which is why marijuana industry leaders are cautiously optimistic about the prospects of cannabusiness growth in the Trump era.

“For the most part, experts all think we will see a continuation of some form of the status quo,” Chris Walsh, editor of Marijuana Business Daily, told Yahoo Finance last month. “Maybe there will be some efforts to crack down here and there, but the consensus is that a widespread crackdown will be difficult.”

“If Trump’s going to attack the marijuana industry — like the recreational side, or the new states that legalized — it’s going to be very difficult for him to do that,” Walsh added. “He’s going to have a very hard time unwinding all the time and money and effort that states have put into these programs.”

The same goes for Gorsuch.

“We believe that a conservative legal philosophy should be consistent with respect for federalism and state sovereignty,” Taylor West
, deputy director of the National Cannabis Industry Association, wrote in an email to Yahoo News. “Voters in 28 states have chosen to establish legal, regulated cannabis programs in their states, and state lawmakers and regulators have implemented those programs. Trampling on those state initiatives would be the kind of federal overreach that conservative judicial leaders typically speak out against.”

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Don’t expect nationwide marijuana legalization under the Trump administration

Washington DC marijuana handout

With the inauguration of Donald Trump on January 20, the United States got a new president. And with that new president comes a long list of new appointees across various federal agencies and departments. While President Trump’s cabinet selection process has played out publicly, a variety of folks from former president Barack Obama’s administration have quietly stayed on.

One of the most prominent people that’s staying on is the head of the Drug Enforcement Agency, Chuck Rosenberg, who was appointed by former attorney general Loretta Lynch in May 2015.

And that’s particularly notable, as the DEA is responsible for enforcing drug policy in the United States. Most importantly for most Americans, Rosenberg is in charge of enforcing marijuana illegality in the US — an area where, traditionally, the federal government and individual US states have butted heads.

For instance, California legalized medical marijuana use in 1996; despite legality in California, the drug remained illegal on a federal level, and the US government — through the DEA — policed it as such. California medical dispensaries were raided by the federal government repeatedly, regardless of its legality in the eyes of the State of California.

That relationship dramatically changed in 2013 due to a document known as “The Cole Memo” (written by deputy attorney general James Cole). The document re-focused federal resources away from prosecuting individuals who were operating legally within their own states, and instead focused on containment and prevention.

In so many words, it directed federal agencies to stop clashing with state-level marijuana policy.

And DEA head Chuck Rosenberg has upheld that memo.

“He didn’t have too much of a problem following the administration’s directives on that issue,” Marijuana Policy Project senior communications manager Morgan Fox told Business Insider. “And it says a lot for continuity — things will remain relatively the same at the DEA.” 

Of course, this is all up for change. If Trump’s attorney general appointee, Senator Jeff Sessions, is appointed, he could direct the DEA to take a more hardline stance. And if President Trump himself decides to take a more hardline stance, that would also impact how the DEA operates when it comes to federal marijuana policy. To be clear, neither Sessions nor Trump have indicated as much.

As Fox told Business Insider, “The DEA head acts as the direction of the attorney general who acts at the direction of the president.” That said, both President Trump and Senator Sessions have indicated intentions to keep the status quo: allowing states to legislate and police their own drug laws.

In 2016, alongside Trump winning the presidency, several states enacted laws either outright legalizing recreational marijuana use, cultivation, and distribution/sales or legalized medical use. For the foreseeable future, it looks like the US government will continue to defer to individual states in terms of marijuana policy.

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