{"id":612,"date":"2019-08-04T07:49:11","date_gmt":"2019-08-04T12:49:11","guid":{"rendered":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/?p=612"},"modified":"2019-08-07T11:28:50","modified_gmt":"2019-08-07T16:28:50","slug":"nebraska-attorney-general-gives-the-state-some-bad-legal-advice-concerning-marijuana-legalization","status":"publish","type":"post","link":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/2019\/08\/nebraska-attorney-general-gives-the-state-some-bad-legal-advice-concerning-marijuana-legalization\/","title":{"rendered":"Nebraska Attorney General Gives the State Some Bad Legal Advice Concerning Marijuana Legalization"},"content":{"rendered":"

On August 1, Nebraska Attorney General Douglas Peterson gave the state some bad legal advice concerning proposed medical marijuana\u00a0legislation (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\u2019s full eight-page opinion can be found here<\/a>.<\/p>\n

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\u00a0in the fall 2020 election (see here<\/a>). 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)\u00a0approve it.<\/p>\n

Readers familiar with my work can probably guess that I strongly disagree with the AG\u2019s conclusions. I have explained in great detail elsewhere why the CSA does not \u2013 and to a large extent, could not<\/em> \u2013 preempt state marijuana reforms, like Nebraska\u2019s MCA. See, e.g., On the Limits of Supremacy: Medical Marijuana and the States\u2019 Overlooked Power to Legalize Federal Crime<\/a>; Preemption Under the Controlled Substances Act<\/a>; and The Implications of Murphy v. NCAA for State Marijuana Reforms<\/a>.\u00a0In this post, I will just highlight 3 substantial errors I\u00a0found in the AG\u2019s opinion.<\/p>\n

1. It misrepresents what the MCA (and similar medical marijuana legislation) actually does.<\/h4>\n

The opinion begins with a reasonable description of the MCA. It notes that the legislation would:<\/p>\n

\u201cauthorize 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\u2014the \u2018Cannabis Enforcement Department\u2019-to enforce this regulatory scheme through producer and patient registration, inspections, licensure, fee collection, and rulemaking.\u201d (AG opinion 1)<\/p>\n

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).<\/p>\n

Following this description, however, the AG then inexplicably proceeds to claim that the MCA would:<\/p>\n

\u201ccreat[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.\u201d<\/p>\n

The AG\u2019s opinion clearly mischaracterizes the effect of the MCA’s “regulatory scheme”\u00a0(and those of similar state marijuana reforms). Indeed, it\u2019s hard to see how\u00a0the myriad regulations imposed by the MCA would\u00a0\u201caffirmatively facilitate\u201d 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\u00a0claimed that state taxes (of up to $25,000\u00a0per year) “affirmatively faciliated” her business? As I\u2019ve explained (repeatedly) before, the regulations states now impose on medical (and recreational) marijuana industries help to\u00a0limit \u2013 not\u00a0expand \u2013 marijuana sales.<\/p>\n

Perhaps the AG had forgotten, but Nebraska already imposes taxes illicit suppliers\u00a0 of marijuana, heroin, cocaine, etc. See here<\/a>.\u00a0 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<\/em> steep marijuana taxes — if those taxes fall, it’s hard to see how it would help Nebraska.)<\/p>\n

2. It omits any mention of the anti-commandeering, the key constitutional principle enabling state marijuana reforms.<\/h4>\n

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\u00a0criminalize marijuana, just because the federal government does so. That\u2019s the clear implication of a constitutional principle known as the anti-commandeering rule.<\/p>\n

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<\/a>.\u00a0(And recall\u00a0how the\u00a0AG first described the MCA as “authorizing” marijuana activities Congress forbids.)<\/p>\n

So it should be pretty apparent by now that Congress has no power to preempt state’s from\u00a0legalizing \/ 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\u00a0states 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.<\/p>\n

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

3. It distracts from this omission by focusing on the content of federal law.<\/h4>\n

The AG devotes roughly \u00bd of\u00a0his opinion to explaining that federal law bans marijuana outright, even if it isn\u2019t enforcing that ban against state law compliant behavior (and hasn’t for the last 5 years). See\u00a0 Congress Renews DOJ Spending Rider<\/a>.<\/p>\n

But this lengthy discussion of federal law is a red herring. No one disagrees with the opinion that federal law now bans marijuana outright.\u00a0But the fact that Congress bans marijuana\u00a0does not<\/em> suggest it necessarily wants to (or even could<\/em>) force states to do the same (see point 2 above).<\/p>\n

True, the state can\u2019t 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 \u2013 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<\/a>). It’s also because even a non-negligible prospect of federal enforcement doesn\u2019t bar the state from charting its own course on marijuana policy, as the 34 other states that have legalized\u00a0medical marijuana (not to mention 11 of them that have legalized recreational marijuana) have concluded.<\/p>\n

So the Nebraska AG reaches the wrong conclusion about the enforceability of state medical marijuana legislation.\u00a0I\u2019m not saying\u00a0that Nebraska necessarily should adopt the MCA or something like it.\u00a0\u00a0But the people (or legislaltors) should make that choice based on sound advice \u2013 policy and legal \u2013 not ill-considered opinions.<\/p>\n","protected":false},"excerpt":{"rendered":"

On August 1, Nebraska Attorney General Douglas Peterson gave the state some bad legal advice concerning proposed medical marijuana\u00a0legislation (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\u2019s full…<\/p>\n","protected":false},"author":6789,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1,4],"tags":[66,6,302,533,15,5,532,530,531,267,268,59],"class_list":["post-612","post","type-post","status-publish","format-standard","hentry","category-news","category-updates","tag-attorney-general","tag-cannabis","tag-controlled-substances-act","tag-douglas-peterson","tag-marihuana","tag-marijuana","tag-mca","tag-nebraska","tag-opinion","tag-preempt","tag-preempted","tag-preemption"],"_links":{"self":[{"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/posts\/612","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/users\/6789"}],"replies":[{"embeddable":true,"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/comments?post=612"}],"version-history":[{"count":3,"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/posts\/612\/revisions"}],"predecessor-version":[{"id":615,"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/posts\/612\/revisions\/615"}],"wp:attachment":[{"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/media?parent=612"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/categories?post=612"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/tags?post=612"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}