In Uncategorized on 05/12/2023 at 12:20

JOAN. Thou are a rare noodle, Master. Do what was done last time is thy rule, eh?

G. B. Shaw, Saint Joan, 1920

Ch J Kathleen (“TBS = The Big Shillelagh”) Kerrigan is caught between rationality and judicial restraint, with a large helping of Congressional cognitive dissonance thrown in. Having no choice but to play the rare noodle gambit, distasteful though it be, she tosses the motion for judgement on the pleadings, brought by the trusty attorney for the Estate of Ronald E. Van Steyn, Deceased, Holly A. Cook, Personal Representative, Docket No. 30991-21, filed 5/12/23 (a very happy day at our house).

The late Ron was apparently a potter. Thus he was Section 280E’d out of Section 162 deductions for his State-legal but Federally-outlawed potting. Trusty attorney claims Justice Clarence Thomas’ remarks in Standing Akimbo undercut the rationale of Gonzales v. Raich, 545 U. S. 1 (2005), so Tax Court should allow said deductions.

“…petitioner contends that the reasoning in Raich has been hollowed out by factual and legal developments, including the proliferation of state-sanctioned marijuana businesses (introducing new federalism questions), subsequent Commerce Clause jurisprudence, and the statement of Justice Thomas in Standing Akimbo, LLC v. United States, 141 S. Ct. 2236 (2021), where the Supreme Court declined to review the Court of Appeals for the Tenth Circuit’s decision in the case below.” Order, at p. 1.

But Raich is not overruled, and Congress, which could end this mess…well, this is a nonpolitical blog, so the less I say about Congress, the better.

So Ch J TBS is forced to play the rare noodle gambit.

“The Supreme Court has advised the lower courts that ‘[i]f a precedent of [the Supreme Court] has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the  [lower courts] should follow the case which directly controls, leaving to [the Supreme Court] the prerogative of overruling its own decisions.’ Raich directly controls the question here, and we accordingly will follow it unless and until the Supreme Court determines its previous decision should be overruled.” Order, at p. 1. (Citations omitted).

Whatever my view of certain decisions of the Supreme Court (which I’ve expressed in extenso elsewhere), I must commend judicial restraint here. There are places where courts should not, indeed cannot, go. Courts do not exist to get legislators off the hook.


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