But Gorsuch, currently a judge on the U.S. Court of Appeals for the 10th Circuit, hasn’t ever given a clear indication of how he’d rule on big cases about conflicts between state and federal marijuana laws that might arrive before the Supreme Court in the coming years.
In 2015 case, he ruled against a Colorado marijuana dispensary, saying that it must comply with IRS orders to disclose information about its operations.
While the case didn’t directly concern questions about the right of states to set their own cannabis laws, Gorsuch did offer some commentary on the uncertainty caused by continued federal prohibition:
“This case owes its genesis to the mixed messages the federal government is sending these days about the distribution of marijuana…”
“[O]fficials 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.”
In the opinion, Gorsuch seemed to take the federal government to task for in effect having contradictory positions on whether the marijuana store would be incriminating itself by describing its operations:
“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.”
He also raised questions about the protections that Obama-era enforcement memos ultimately provide for state-legal marijuana activities, writing, “[I]t’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…”
In separate case, in 2010, Gorsuch ruled that a husband and wife charged with cannabis sales offenses couldn’t cite the Religious Freedom Restoration Act as a defense because, he said, they weren’t sincere in their claims that the cannabis was for legally protected spiritual purposes:
“[N]umerous pieces of evidence in this case strongly suggest that the [couple’s] marijuana dealings were motivated by commercial or secular motives rather than sincere religious conviction…”
“[T]he record contains additional, overwhelming contrary evidence that the [couple was] running a commercial marijuana business with a religious front.”
In a 2013 case, Gorsuch took the position that what ended up being the fatal use of a taser by a police officer against someone fleeing a marijuana arrest was “reasonable”:
“[T]he illegal processing and manufacturing of marijuana may not be inherently violent crimes but, outside the medical marijuana context, 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.”
Shortly after Trump’s announcement on Tuesday night that he’d picked Gorsuch to fill the seat vacated by the late Antonin Scalia, the National Urban League tweeted its concern about the taser case in particular:
As demonstrated in the 2015 tax case against the dispensary, Gorsuch seem to be aware that the gap between federal and state marijuana laws is growing unsustainable.
But he hasn’t yet revealed much about his views on the power and ability of states to enact laws that require local officials to grant licenses for, and collect tax revenue from, activities that are in contradiction with the federal Controlled Substances Act.
Alex Kreit, a professor at the Thomas Jefferson School of Law in San Diego, told Weedly Mart that Gorsuch’s case record to date doesn’t give much insight into how he would rule on big marijuana cases that could land at the Supreme Court.
“The most important legal question on marijuana legalization is whether the Supreme Court might rule that federal law preempts state reforms,” he said. “From what I’ve seen so far, I don’t know that we have any sense of where he stands on that issue based on his record.”
When it comes to the power of police to conduct searches, Kreit said that “there are some signs” that Gorusch would be fairly protective of the privacy rights of crime suspects under the Fourth Amendment.
On the question of the relationship between state and federal marijuana laws, perhaps members of the U.S. Senate Judiciary Committee will ask the judge to elaborate on his views when they hold confirmation hearings on his nomination in the coming weeks.