Nebraska’s attorney general said in an opinion on Thursday that state efforts to legalize medical marijuana would be preempted by federal law and “would be, therefore, unconstitutional.”
While the opinion concerns specific legislation introduced at the beginning of the year that sought to establish a medical cannabis program—and legal experts said they disagree with its reasoning—the memo could nonetheless have political implications for a separate ballot initiative to legalize medical marijuana for which activists are in the process of collecting signatures.
The attorney general plays a direct role in shaping ballot measures. While the secretary of state certifies petition signatures, a copy of the initiative is sent to the attorney general who “will write a ballot question or title that summarizes (in 100 words or less) the purpose of the measure” and “provide materials that explains the effect of a vote for or against the measure. These items will appear on the ballot.”
The eight-page opinion on legalization legislation, which was requested by Sen. Andrew La Grone (R), describes the federal Controlled Substances Act (CSA), under which cannabis remains listed in the most strictly controlled category of Schedule I drugs. Attorney General Doug Peterson (R) wrote that “Congress has not amended the CSA to remove marijuana from Schedule I, nor have considerable efforts to administratively reschedule marijuana been successful.”
Citing a 2005 U.S. Supreme Court ruling in a case concerning California patients who sought an exemption from enforcement under the CSA for cultivating and possessing cannabis for personal use, Peterson argued that the majority’s opinion demonstrated that legalizing medical cannabis in Nebraska would be unconstitutional.
“It is the opinion of this office that the [Medical Cannabis Act] would suffer from the same legal infirmities as the California scheme in [Gonzalez v. Raich],” Peterson wrote. “Notwithstanding the fact that state-level marijuana legalization schemes have spread in the recent (and discretionary) unwillingness by the federal government to civilly enforce the CSA against states, that exercise of discretion simply does not change the federal law that remains on the books and which Congress has steadfastly maintained.”
“Given Gonzales v. Raich, and given the text and legislative history of the CSA, there is no doubt that Congress intended the CSA to serve the purpose of making all manufacture, sale, and possession of regulated drugs illegal, except to the extent explicitly authorized by the CSA. Nothing about the federal government’s relaxed view of its enforcement obligations under the CSA changes the fact that Congress intended the CSA to prohibit the type of legalization proposed by the MCA.”
“In sum, we conclude that the MSA, by creating a state regulatory scheme that would affirmatively facilitate the cultivation, processing, wholesale distribution, and retail sale of federal contraband on an industrial scale, would frustrate and conflict with the purpose and intent of the CSA,” Peterson concluded. “Accordingly, we conclude that the MCA would be preempted by the CSA and would be, therefore, unconstitutional.”
On the other hand, more than 30 states have legalized medical cannabis since 1996 and the Supreme Court has never ruled that state legalization regimes are preempted by federal law—even in the Raich case, which merely said that federal officials can enforce federal laws against people who are following state laws.
“Raich was not a case about preemption and the attorney general’s attempt to make it into one is misleading. He fundamentally misrepresents the Court’s holding in that case,” Sam Kamin, a professor at the University of Denver’s Sturm College of Law, told Marijuana Moment.
Kamin said that Peterson’s argument is similar to that made by the attorneys general of Nebraska and Oklahoma when they asked the Supreme Court to overturn the marijuana law of neighboring Colorado in 2014.
“The Court chose not to hear that case,” he said.
“Congress may not require the states to pass marijuana prohibitions or to keep their marijuana prohibitions on the books,” Kamin continued. “Nothing in Raich says otherwise.”
That said, the impact of Peterson’s memo may be primarily political, rather than legal, by raising the possibility that the federal government could make a preemption argument if the state enacted a medical marijuana program and the Justice Department chose for the first time to directly challenge it—a message that could cause some voters to rethink supporting the legalization measure if it appears on the state’s 2020 ballot.
Sen. Anna Wishart (D), sponsor of the MCA and founding member of the committee behind the ballot measure, told Marijuana Moment that her legislation “is the product of hours of work with doctors, pharmacist, law enforcement, chambers of commerce and patients.”
“We took best practices from all of the states that have already legalized medical cannabis and put together what I would consider one of the best public health models in the country,” she said in response to the attorney general’s opinion. “Two-thirds of states have medical marijuana laws, the first enacted 23 years ago and no one has successfully challenged them. In fact, Congress has directed the DOJ to back off these programs.”
Since 2014, Congress has enacted and extended an appropriations rider that blocks the Justice Department from interfering with state medical cannabis laws.
“The Nebraska Attorney General’s argument is nonsensical and motivated by his anti-marijuana ideology,” Matthew Schweich, deputy director of the Marijuana Policy Project, which is working with local activists on the ballot measure, told Marijuana Moment. “Nebraskans understand that many other states have functional medical marijuana programs, which demonstrates the baseless nature of this preemption argument.”
Sen. Adam Morfeld (D), who is working with Wishart on medical cannabis efforts, said that the AG’s opinions comes as “no surprise” given that he has been a “chief opponent” of marijuana reform for years.
“Further, just as the legislature can reasonably regulate other constitutional rights such as speech, firearms and religion, they will be able to do the same if medical marijuana passes on the ballot,” he added. “Right now people are suffering needlessly in Nebraska and being treated like criminals because of the attorney general and others.”
Wishart said that the committee working to advance the ballot measure—Nebraskans for Sensible Marijuana Laws—is “confident that our petition will make it onto the ballot and pass and that Nebraskans will finally have a constitutional right to access a medicine that helps them.”
“We are a country of dual sovereignty, complete with the 10th Amendment that affirms the rights of states,” she said.
Read the Nebraska attorney general’s full medical cannabis opinion below:
This story was updated to include comment from Morfeld.