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In his 2006 book about assisted suicide, Supreme Court nominee Neil Gorsuch takes issue with the "libertarian principle" that requires legalization of the practice. The same principle, Gorsuch argues, would also require the government to allow "any act of consensual homicide," including "sadomasochist killings, mass suicide pacts…duels, and the sale of one's life (not to mention the use of now illicit drugs, prostitution, or the sale of one's organs)." That's right: If the government lets people kill themselves, it might also have to let them smoke pot.
Despite the horror of taboo intoxicants suggested by that passage, Gorsuch does not seem to be blinded by pharmacological phobia when he hears drug cases. Two opinions he wrote in 2015—one involving mens rea, the other the Fifth Amendment's ban on compelled self-incrimination—demonstrate a sophisticated understanding of drug policy issues and suggest Gorsuch is less eager than some judges to facilitate enforcement of prohibition by compromising civil liberties.
In U.S. v. Makkar, a 2015 case involving Oklahoma convenience store owners arrested for selling "incense" containing a synthetic cannabinoid, Gorsuch noted that the merchants, Iqbal Makkar and Gaurav Sehgal, seemed to be concerned about complying with the law:
When questions surfaced about the incense they carried on their shelves, the men spoke with state law enforcement officers, offered to have the officers test the incense to determine its legality, and offered as well to stop selling the product until the results came in. But this cooperation with state authorities apparently won the men little admiration from federal investigators: soon enough they found themselves under indictment and convicted for violating the Controlled Substance Analogue Enforcement Act (Analogue Act), conspiracy, and money laundering.
Writing for a three-judge panel of the U.S. Court of Appeals for the 10th Circuit, Gorsuch agreed with Makkar and Sehgal that they had been improperly convicted under the Analogue Act, "a curious animal" that is meant to criminalize production and distribution of psychoactive substances that are not explicitly prohibited by the Controlled Substances Act (CSA). To be covered by the Analogue Act, according to the Supreme Court's interpretation, a substance must be substantially similar in chemical structure and effect to a drug listed in Schedule I or II of the CSA. To convict a supplier of violating the Analogue Act, the government must prove he knew the drug had these features or knew the drug was banned by that law or by the CSA.
Gorsuch noted in passing that the Supreme Court's construction of the Analogue Act may not adequately address "vagueness concerns," since "it's an open question…what exactly it means for chemicals to have a 'substantially similar' chemical structure—or effect." In any case, he said, prosecutors failed to prove that Makkar and Sehgal met the law's men rea requirements. "The government didn't attempt to show that Mr. Makkar or Mr. Sehgal knew the incense they sold was unlawful under the CSA or Analogue Act," he writes. No did it try to show the defendants knew the incense contained a substance with a chemical structure similar to that of a Schedule I or II drug. "As far as we can tell," Gorsuch said, "at trial the government introduced no evidence suggesting that the defendants knew anything about the chemical structure of the incense they sold."
Instead prosecutors convinced the trial judge to approve "an instruction permitting the jury to infer that the defendants knew the incense they sold had a substantially similar chemical structure to JWH–18 [a synthetic cannabinoid] from the fact they knew the incense had a substantially similar effect to marijuana." That inference is "scientifically unsound," Gorsuch noted, because two substances can have similar effects despite having very different chemical structures. In effect, "the government asked for and won the right to collapse its two separate elemental mens rea burdens into one." Not cool: A court may not "issue instructions that effectively relieve the government of proving each essential element specified by Congress."
Gorsuch also faulted the trial court for not letting Makkar and Sehgal "introduce evidence showing that they asked state law enforcement agents to test the incense to assure its legality under state law—and that they offered to stop selling the incense until the results came in." In light of these legal errors, Gorsuch said, the convictions cannot stand, and "it's unclear at this point whether the men can be lawfully retried consistent with the law's demands."
Gorsuch—like Antonin Scalia, the late justice he would replace—is a stickler when it comes to requiring the prosecution to prove all the elements of a criminal offense, so it is not surprising he objected to the shortcut the government attempted in this case. His comments about the "vagueness concerns" raised by the Analogue Act are also reminiscent of Scalia, who took seriously the government's duty to give people clear warning of which acts constitute crimes, a basic requirement of due process. In fact, Gorsuch likened the Analogue Act to the Armed Career Criminal Act, the vagueness of which offended Scalia. Gorsuch noted that the "residual clause" of that law serves a function similiar to the Analogue Act, since it "extends the statute's punishments to other, unspecified offenses that can claim similarity to listed ones."
In another 2015 case, Feinberg v. Commissioner of Internal Revenue, Gorsuch recognized the weird legal predicament of state-licensed marijuana businesses, which are still treated as criminal enterprises under federal law. The case involved Total Health Concepts, a medical marijuana dispensary in Denver owned by Neil Feinberg, Andrea Feinberg, and Kellie McDonald. The Feinbergs and McDonald challenged the federal law that prevents state-legal marijuana suppliers from claiming business expenses on their tax returns. In response to their lawsuit, the IRS demanded information about their business, which they declined to provide, since it would implicate them in federal felonies. The IRS obtained a U.S. Tax Court order compelling Feinberg et al. to produce the evidence, and they asked the 10th Circuit to overturn that order on Fifth Amendment grounds.
The 10th Circuit ultimately concluded that it should not intervene before the tax court had issued a final order in the case. But Gorsuch noted the self-contradictory logic employed by the IRS in defense of the order:
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…. 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.
Gorsuch questioned whether the DOJ's policy of restraint, which was completely discretionary and could be reversed at any point, obviated Feinberg et al.'s concerns about self-incrimination:
In light of questions and possibilities like these, you might be forgiven for wondering whether, memos or no memos, any admission by the petitioners about their involvement in the marijuana trade still involves an "authentic danger of self-incrimination." Maybe especially given the fact that the government's defense in this case is wholly premised on the claim that the petitioners are, in fact, violating federal criminal law. And given the fact that counsel for the government in this appeal candidly acknowledged that neither the existence nor the language of the DOJ memoranda can assure the petitioners that they are now, or will continue to be, safe from prosecution. And given the fact that this court has long explained that, once a witness establishes that "the answers requested would tend to incriminate [him]" under the law of the land, the Fifth Amendment may be properly invoked without regard to anyone's "speculat[ion] [about] whether the witness will in fact be prosecuted."
Although these ruminations had no practical effect in this case, they suggest a judge who is sensitive to the problems created by the federal government's continued enforcement of a prohibition policy that most states have rejected. Give the next attorney general's objections to marijuana federalism, that conflict could come before the Supreme Court sometime in the next few years.
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