Supreme Court Justice Clarence Thomas, always the gadfly, made news again Monday when he called out the federal government’s “half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana.”

There are plenty of people are working hard to understand why one of the most conservative SCOTUS justices sounds like he might be advocating for the federal government to get out of the marijuana regulation game; which, frankly, is what makes Thomas such fun: he seems to enjoy keeping everyone on their toes. But while those people are perplexed, there are others paying close attention to what kind of state laws might be coming on the heels of an increased laxity regarding marijuana illegality because those people have been the unlucky ones to have lost loved ones to drivers impaired by THC.

The Outlaws Radio Show out of Cleveland recently featured an interview with the mother of a young woman who was killed after a collision with someone driving under the influence of THC, as well as an interview with a physician who lost his sister the same way. Both guests faced not only the pain of losing a loved one, but a subsequent long struggle with the courts in their respective states as they attempted to hold the impaired drivers accountable for their behavior.

In this clip, Dr. Phillip Drum of California, the doctor whose sister perished in Washington State, discusses how Gov. Gavin Newsom vetoed a common-sense piece of legislation that would help these victims and their families catch up with the national fast-growing acceptance of marijuana use.

As state legislators change drug laws, they’re forgetting to address a huge new issue: “Drugged Driving”. In this clip Dr. Phillip Drum talks about how California’s governor Gavin Newsom vetoed a common sense bill that passed unanimously.https://t.co/95DqrKSC0E pic.twitter.com/reDDqezrRi

— The Outlaws Radio Show (@TheOutlawsRadio) June 21, 2021

What makes the issue even more interesting, as alluded above, is that Justice Thomas seems to be saying the federal government has stepped away from their previous interest in regulating marijuana to the degree that trying to insert themselves into what states are now doing is enough to give one whiplash.

While on the one hand, federal law still “flatly forbids the intrastate possession, cultivation, or distribution of marijuana,” the federal government has consistently allowed these acts.

On two occasions, in 2009 and 2013, the Department of Justice under President Obama issued memoranda outlining policies that blocked its intrusion into state legalization schemes or prosecution of individuals who comply with state law. Known as the Cole memo, the policy laid out enforcement priorities for federal prosecutors that directed them to refrain from pursuing low-level cannabis offenses.

Concurrently, in every fiscal year since 2015, Congress has prohibited the Department of Justice from “spending funds to prevent states’ implementation of their own medical marijuana laws,” Thomas said.

“Given all these developments, one can certainly understand why an ordinary person might think that the Federal Government has retreated from its once-absolute ban on marijuana.”

 

And from Thomas’ own written opinion:

“If the Government is now content to allow States to act “as laboratories” “‘and try novel social and economic experiments,’” Raich, 545 U. S., at 42 (O’Connor, J., dissenting), then it might no longer have authority to intrude on “[t]he States’ core police powers . . . to define criminal law and to protect the health, safety, and welfare of their citizens.” Ibid. A prohibition on intrastate use or cultivation of marijuana may no longer be necessary or proper to support the Federal Government’s piecemeal approach.”

This encouragement that the federal government divest itself from the issue makes what Newsom did in California that much more problematic for people like Drum who recognize that the legal consequences have to catch up to the change in regulation.

It’s guaranteed to be an interesting issue to watch play out, and here’s hoping state legislatures remember the victims of those who take their new-found freedoms for a spin without thinking of the potential dangers.