Advocates, Nebraska AG Clash Over Constitutionality of Medical Marijuana

The Cornhusker State has proven inhospitable to cannabis reform, but advocates aren’t ready to concede defeat just yet.

On Monday, the group Nebraskans for Sensible Marijuana Laws called out state Attorney General Doug Peterson, who last week issued an emphatic rebuke of a proposal to legalize medical marijuana there.

In a legal opinion released last Thursday, Peterson, a Republican who has held the office since 2015, said that a medical cannabis bill in the last legislative session would be unconstitutional, citing the 2005 Supreme Court case of Gonzales v. Raich that established “that state-level marijuana schemes…are preempted by the [Controlled Substances Act],” a federal law that prohibits the sale and cultivation of marijuana.

The bill, known as the Medical Cannabis Act, was stymied in the legislature this spring amid a filibuster.

“In sum, we conclude that the MCA, 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 [Controlled Substances Act],” Peterson wrote. “Accordingly, we conclude that the MCA would be preempted by the CSA and would be, therefore, unconstitutional.”

Advocates and groups like Nebraskans for Sensible Marijuana Laws have shifted their focus to 2020, when they hope to have a constitutional amendment to legalize medical cannabis on the ballot.

On Monday, the group issued a blistering response to Peterson’s opinion, saying it was “motivated by an anti-cannabis political agenda and unmoored from any sensible reading of recent Supreme Court case law.”

“The United States is a country of dual sovereignty, and state governments get to decide state law — not the federal government,” the group said in the statement. “Two-thirds of states have adopted laws protecting medical marijuana patients, and Congress has directed the Department of Justice to back off those programs.”

The group also questioned Peterson’s decision to invoke Gonzales v. Raich, arguing that the case “preempt states’ ability to enact medical marijuana laws.”

“If the ruling preempted state medical marijuana laws, there would not be hundreds of legal medical cannabis businesses currently operating in California and elsewhere in the country,” the group added.

Peterson’s opinion was hardly a surprise. He and the state’s GOP governor, Pete Ricketts, have long been vocal in their opposition to the effort to bring medical marijuana to Nebraska.

In May, Ricketts called the legislation “a proposal to legalize marijuana under the guise of medicine.”

“This proposal would put Nebraska on a path toward liberalizing our drug laws, which in many states has already resulted in recreational marijuana,” Ricketts said at the time.