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Nebraska Attorney General Gives the State Some Bad Legal Advice Concerning Marijuana Legalization

Posted by on Sunday, August 4, 2019 in News, Updates.

On August 1, Nebraska Attorney General Douglas Peterson gave the state some bad legal advice concerning proposed medical marijuana legislation (the Medical Cannabis Act). In response to a request from a state senator, he concluded that the MCA would be preempted by the federal Controlled Substances Act (CSA) and thus null and void. The AG’s full eight-page opinion can be found here.

The MCA is fairly typical of medical marijuana legislation. Although it stalled in the state Senate earlier this year, proponents are hoping to place it (or something like it) on the ballot as a referendum / initiative in the fall 2020 election (see here). The opinion, however, could stymie legalization in Nebraska, e.g., by dissuading voters from supporting the measure and / or providing legal cover for state officials to later block implementation if voters (or state legislators) approve it.

Readers familiar with my work can probably guess that I strongly disagree with the AG’s conclusions. I have explained in great detail elsewhere why the CSA does not – and to a large extent, could not – preempt state marijuana reforms, like Nebraska’s MCA. See, e.g., On the Limits of Supremacy: Medical Marijuana and the States’ Overlooked Power to Legalize Federal Crime; Preemption Under the Controlled Substances Act; and The Implications of Murphy v. NCAA for State Marijuana Reforms. In this post, I will just highlight 3 substantial errors I found in the AG’s opinion.

1. It misrepresents what the MCA (and similar medical marijuana legislation) actually does.

The opinion begins with a reasonable description of the MCA. It notes that the legislation would:

“authorize the cultivation, processing, wholesale distribution, and retail sale of cannabis (marijuana) and cannabis products for medical uses under Nebraska law. It would establish a regulatory framework to govern these activities and a wholly new government agency—the ‘Cannabis Enforcement Department’-to enforce this regulatory scheme through producer and patient registration, inspections, licensure, fee collection, and rulemaking.” (AG opinion 1)

It goes on to describe some of the regulatory provisions of the MCA in a little more detail, including, e.g., the hefty fees the state would charge licensed marijuana suppliers (up to $25,000 annually for dispensaries).

Following this description, however, the AG then inexplicably proceeds to claim that the MCA would:

“creat[e] a state regulatory scheme that would affirmatively facilitate the cultivation, processing, wholesale distribution, and retail sale of federal contraband on an industrial scale, [which] would frustrate and conflict with the purpose and intent of the CSA.”

The AG’s opinion clearly mischaracterizes the effect of the MCA’s “regulatory scheme” (and those of similar state marijuana reforms). Indeed, it’s hard to see how the myriad regulations imposed by the MCA would “affirmatively facilitate” the production and sale of marijuana. Consider the substantial fees the state proposes to levy on the licensed marijuana industry and which are repeatedly noted by the AG. When was the last time you met a business person who claimed that state taxes (of up to $25,000 per year) “affirmatively faciliated” her business? As I’ve explained (repeatedly) before, the regulations states now impose on medical (and recreational) marijuana industries help to limit – not expand – marijuana sales.

Perhaps the AG had forgotten, but Nebraska already imposes taxes illicit suppliers  of marijuana, heroin, cocaine, etc. See here.  Indeed, the state has collected more than $500,000 in taxes from purveyors of illegal drugs since 1992. If the AG is right, however, he’s given those state taxpayers a very strong legal argument to demand a refund. (Ironically, he’s also given ammunitition to marijuana consumers waging constitutional challenges to Colorado’s steep marijuana taxes — if those taxes fall, it’s hard to see how it would help Nebraska.)

2. It omits any mention of the anti-commandeering, the key constitutional principle enabling state marijuana reforms.

To be sure, state regulations like those embodied in the MCA fall short of criminal prohibitions. After all, they’re designed to limit the marijuana industry, not kill it. But states have no obligation to criminalize marijuana, just because the federal government does so. That’s the clear implication of a constitutional principle known as the anti-commandeering rule.

In a nutshell, the anti-commandeering says that Congress can’t force the states to ban marijuana or to help the federal government enforce its own ban. Recently the Supreme Court found that this principle empowered states to “authorize” conduct Congress had forbidden. See The Implications of Murphy v. NCAA for State Marijuana Reforms. (And recall how the AG first described the MCA as “authorizing” marijuana activities Congress forbids.)

So it should be pretty apparent by now that Congress has no power to preempt state’s from legalizing / authorizing marijuana possession and supply under state law. Simply put, the anti-commandeering rule enables states to legalize / authorize marijuana possession and sales. It also explains why Congress has no desire to stop states from replacing prohibition with sensible regulations (like those taxes noted above) — after all, it would gladly take whatever help it can get in pursuing federal objectives, and a world with state taxes on marijuana looks more appealing (assuming Congress wants to limit marijuana consumption) than one without those taxes, i.e., one in which marijuana is even cheaper under state law.

Yet the AG’s opinion does not even mention the anti-commandeering rule or Murphy v. NCAA. Not even once. This is a glaring omission from a state actor charged with providing informed legal advice to guide state lawmakers.

3. It distracts from this omission by focusing on the content of federal law.

The AG devotes roughly ½ of his opinion to explaining that federal law bans marijuana outright, even if it isn’t enforcing that ban against state law compliant behavior (and hasn’t for the last 5 years). See  Congress Renews DOJ Spending Rider.

But this lengthy discussion of federal law is a red herring. No one disagrees with the opinion that federal law now bans marijuana outright. But the fact that Congress bans marijuana does not suggest it necessarily wants to (or even could) force states to do the same (see point 2 above).

True, the state can’t block enforcement of the federal ban by federal officials, if it ever came to that. But no one is claiming that a state could do so – i.e., no state has claimed it can block federal enforcement of the marijuana ban. So spending 4 pages of an 8 page opinion explaining that Nebraskans who complied with the MCA might still be prosecuted by the federal government is more distracting that illuminating. That’s not just because the likelihood of federal enforcement at this point is virtually zero (see post here). It’s also because even a non-negligible prospect of federal enforcement doesn’t bar the state from charting its own course on marijuana policy, as the 34 other states that have legalized medical marijuana (not to mention 11 of them that have legalized recreational marijuana) have concluded.

So the Nebraska AG reaches the wrong conclusion about the enforceability of state medical marijuana legislation. I’m not saying that Nebraska necessarily should adopt the MCA or something like it.  But the people (or legislaltors) should make that choice based on sound advice – policy and legal – not ill-considered opinions.

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  • Tim Larsen

    August 15th, 2019

    Until the US government legalises the sale and distribution of cannabis, enforcing patents in this field and obtaining the traditional benefits of these rights will be challenging.