6. Cannabis In The Courts
One national case that will be decided in 2018 does not directly involve cannabis—yet it could very well give an anti-pot federal government the tools to shutdown states’ rights.
On December 4, the U.S. Supreme Court (SCOTUS) heard oral arguments in the Christie vs NCAA case involving New Jersey authorizing sports gambling in violation of a 1992 federal law. When Jersey legalized sports gambling in 2012, a lawsuit was filed. New Jersey argues that the ’92 law unconstitutionally allows the federal govt to force U.S. states to enforce federal laws, thus stripping states of their role as “experimenters” of establishing laws—like legalizing marijuana—that otherwise stand in contravention of federal law.
As deftly detailed by the Canna Law Blog, a lower appeals court found that the ’92 law does not violate the “anti-commandeering” tenent of the 10th Amendment because the federal government isn’t forcing New Jersey to do anything, only prohibiting it from passing sports gambling laws. Should SCOTUS uphold the lower court, Congress could craft a law that simply prohibits states from passing legal cannabis laws. The good news is SCOTUS is leaning towards favoring states’ rights in its decision, but this is definitely a case to monitor.
Per the Cannabist, in a case that impacts cannabis taxation, on November 17, the owners of the Colorado Alternative Health Care dispensary filed a brief in U.S. Tax Court that argues their business (as well as all cannabis companies) are unjustly taxed twice. This is due to the fact the weed industry is not permitted to take deductions from income generated by controlled substances, due to a Reagan-era “War on Drugs” 1982 tax code, the dreaded Section 280E.
As pot is still prohibited federally, legal state businesses cannot make tax deductions that any other company can—including gun stores and strip clubs.