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What Does Gorsuch Think About Cannabis? Not Much.

February 1, 2017

On Wednesday morning, President Donald Trump told Senate Majority Leader Mitch McConnell to “go nuclear” if political gridlock holds up the confirmation of his Supreme Court pick, Neil Gorsuch. But despite big words from some on the left, most political observers think it’s unlikely the nuclear option will be necessary. Gorsuch, a 49-year-old 10th US Circuit Court of Appeals judge, is widely seen as a relatively safe choice by Trump. Even some liberal voices say the Senate should confirm him.

So it’s worth asking: Where does Neil Gorsuch stand on cannabis? What would his appointment mean for patients, adult consumers, and the estimated 123,000 Americans who make a living in the legal industry?

We don’t know much. Reporters are working furiously to dig through Gorsuch’s past statements, his court opinions, and any other telltale signs of the judge’s position on various issues, but there’s just not much out there about cannabis. As with Trump himself, there’s not enough in Gorsuch’s record to predict with much certainty how he’d handle the issue going forward.

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If you’re trying to read the tea leaves, though, there are a few places to look. During his time on the 10th Circuit, Gorsuch has heard a small handful of cases involving cannabis. In most of those cases, the plant was only peripherally related to the legal issues at hand. Here are a few:

In 2015, Gorsuch wrote an opinion forcing a Colorado cannabis shop to reveal its business to the IRS. The case was primarily about taxes. The shop had made certain business tax deductions, and the IRS asserted those deductions weren’t allowed because of the federally illegal nature of the business. When the IRS tried to compel the company to disclose its business in court, the shop asserted its Fifth Amendment right to avoid self-incrimination. Gorsuch wrote the opinion for a three-judge panel that blocked that move.

In that ruling, Gorsuch, who currently lives in Boulder, Colo., expressed some sympathy for the cannabis company. The case “owes its genesis to the mixed messages the federal government is sending these days about the distribution of marijuana,” he wrote. “Prosecutors will almost always overlook federal marijuana distribution crimes in Colorado but the tax man never will.”

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He continued (citations removed):

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’ 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.

Gorsuch recognized the so-called Cole and Ogden memos, the Obama-era documents that set a Department of Justice policy not to prosecute state-legal cannabis. But he pointed out that those memos only mean so much. “There’s always the possibility,” he wrote, “that the next (or even the current) Deputy Attorney General could displace these memoranda at anytime.”

In a 2013 opinion, Gorsuch wrote that it was reasonable for police to use a taser against a man suspected of growing cannabis illegally. The suspect in the case had led officers “on a foot chase through three-quarters of rough terrain, including over a barbed-wire fence,” the court wrote. An officer fired a taser at the man, who fell to the ground and died.

Gorsuch’s opinion acknowledges that “the illegal processing and manufacturing of marijuana may not be violent crimes” but noted that they were nevertheless felonies under Colorado law in 2006, when the incident took place. And the officer “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.”

In a 2010 opinion, Gorsuch upheld the convictions of two people charged with intending to distribute cannabis, disagreeing with the couple’s claim that the cannabis was for “sincere religious exercises” and thus legally protected. “Numerous pieces of evidence,” he wrote, suggest the couple’s “marijuana dealings were motivated by commercial or secular motives rather than sincere religious conviction.”

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All of these cases involve cannabis, but none speaks directly to the elephant in the room: how to resolve the conflict between state and federal cannabis laws. None of Gorsuch’s opinions indicate whether he believes the federal Controlled Substances Act preempts state cannabis legalization—a common argument by those who’ve challenged medical or adult-use laws—meaning we’re forced to extrapolate from Gorsuch’s other public positions.

Adam Liptak, who covers the Supreme Court for the New York Times, likens Gorsuch to the late Supreme Court Justice Antonin Scalia. Gorsuch “is an originalist,” Liptak writes, “meaning he tries to interpret the Constitution consistently with the understanding of those who drafted and adopted it. This approach leads him to generally but not uniformly conservative results.”

Like Scalia, Gorsuch takes a broad view of the Fourth Amendment, which forbids unreasonable search and seizure by the government. That suggests he’ll be at least somewhat skeptical of overreach by law enforcement agencies.

His judicial ideology also suggests an appreciation for the right of states to craft their own policies, and Trump himself has made statements in support of states’ rights. But historically, conservative officials at the federal level have frequently abandoned their support of states’ rights when it comes to cannabis policy, arguing instead that cannabis is clearly illegal under federal law.

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While Gorsuch seems to appreciate the precariousness of the current tension between state and federal laws around cannabis, there’s little in his record to indicate he’d push back against a federal statue like the 1971 Controlled Substances Act. In a completely unrelated case—about a 13-year-old girl disciplined for making fake burps in class—Gorsuch penned a dissenting opinion that made clear his view of a judge’s role:

“Often enough the law can be ‘a ass — a idiot,’” he wrote, quoting Charles Dickens’s Oliver Twist. “and there is little we judges can do about it, for it is (or should be) emphatically our job to apply, not rewrite, the law enacted by the people’s representatives. Indeed, a judge who likes every result he reaches is very likely a bad judge, reaching for the results he prefers rather than those the law compels.”

It’s not difficult to imagine Gorsuch taking a similar view against a state-legal cannabis business—and indeed, he nearly did in the 2015 tax case.

For now, after all, cannabis remains federally illegal. While Congress has extended some protections to state-legal businesses, there’s still very little preventing the Department of Justice from cracking down on the industry or even seeking to overturn state cannabis laws. Under federal law, cannabis is still illegal—and Gorsuch is likely to call it that way.

“He is a judge’s judge,” writes Slate’s Mark Joseph Stern, who agrees that Gorsuch’s confirmation would restore the court’s ideology to where it was before Scalia’s death. “And he is, in all likelihood, our next Supreme Court justice.”

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Ben Adlin

Ben Adlin is a Seattle-based writer and editor who specializes in cannabis politics and law. He was a news editor for Leafly from 2015-2019. Follow him on Twitter: @badlin

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