On August 1, the Office of the Attorney General issued a response to Sen. Andrew La Grone’s request for an opinion on the constitutionality of the Medical Cannabis Act (LB 110 with AM 1680), a bill currently pending in the state legislature. The Attorney General’s argument that a functional medical marijuana law would be unconstitutional and preempted by the federal Controlled Substances Act (“CSA”) is unsubstantiated and specious. 

The opinion primarily rests on a flawed misinterpretation of Gonzales v. Raich, a 2005 Supreme Court decision involving a medical marijuana patient in California. A plain reading of the Court’s decision is that it upholds Congress’s legal authority to prohibit intrastate medical marijuana commerce. It does not, however, 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. 

Though the CSA classifies possession, distribution, and other activities involving marijuana as federally illegal, the MCA would not require Nebraska state employees to violate federal law. Medical marijuana programs in other states have been similarly structured, and no state employee or regulator has ever been prosecuted by federal authorities for performing their duties overseeing a state’s medical marijuana program. Furthermore, the federal government has never alleged in court that federal laws preempt state medical marijuana or legalization laws. In fact, the Department of Justice (DOJ) argued in favor of dismissing a lawsuit claiming Arizona’s medical marijuana law was preempted.1

A more relevant Supreme Court decision is Murphy vs. NCAA, in which the key question was whether Congress could compel states to enforce prohibitions against private conduct which Congress itself has prohibited. In a 7-2 vote, the Court said no, because this compulsion violates the anti-commandeering principle. The Court argued that what is contrary to our constitutional system of government — complete with the 10th Amendment that reserves rights for the states — is not states allowing medical marijuana under state law, but rather attempts to prevent them from doing so by citing federal law. State governments are not intended to be puppets of Congress. 

The United States is a country of dual sovereignty, and state governments get to decide state law — not the federal government. Two-thirds of states have adopted laws protecting medical marijuana patients, and Congress has directed the Department of Justice to back off those programs. Nebraskans should recognize the Attorney General’s statement as one motivated by an anti-cannabis political agenda and unmoored from any sensible reading of recent Supreme Court case law.

1 Arizona v. United States, No. CV 11-1072-PHX-SRB, slip op. at 2 (D. Ariz. Jan. 1, 2012).