Nebraska Attorney General Doug Peterson said Thursday in an opinion that the medical marijuana legalization bill that is parked on the first round of debate in the Nebraska Legislature is unconstitutional.
Peterson said that by the state creating a regulatory scheme to cultivate, process, distribute and sell a product considered federal contraband on an industrial scale would conflict with the purpose and intent of the federal Controlled Substances Act.
"Accordingly, we conclude that the (Medical Cannabis Act) would be preempted by the (Controlled Substances Act) and would be, therefore, unconstitutional," the opinion said.
The opinion was requested by Sen. Andrew La Grone, who was appointed by Gov. Pete Ricketts to fill the District 49 seat of John Murante when Murante was elected state treasurer. La Grone previously worked in Murante's office and clerked for Peterson.
Peterson said that since 1970, when the Controlled Substances Act was enacted, marijuana and tetrahydrocannabinols have been classified as Schedule I controlled substances with no accepted medical use for treatment in the United States, even under medical supervision.
Peterson said the U.S. Supreme Court concluded in Gonzales v Raich (2005), a California case, that Congress had a rational basis for believing that failure to regulate the intrastate manufacture or possession of marijuana would leave a gaping hole in the Controlled Substances Act. And the act designates marijuana as contraband under any purpose.
The bill, introduced by Lincoln Sen. Anna Wishart, has a list of specific conditions for which the drug can be prescribed and the requirement that a patient must see a medical professional with which they have a bona fide relationship for certification. The patient must have a physical exam and be assessed for alcohol and substance abuse and for a personal or family history of psychotic disorders.
With the bill, smoking the drug would be illegal, and there is no provision for a patient growing the plant at home.
Wishart said Friday there's no doubt the attorney general, Gov. Pete Ricketts and several members of the Legislature are going to oppose any form of medical marijuana legislation. And Peterson's opinion is part of a larger plan to try to thwart the medical marijuana ballot initiative. Workers and volunteers have been out all summer gathering signatures for that petition.
"But I would anticipate that just like every other thwarted opposition scheme ... it is only going to rile up Nebraskans even more to come and sign a petition and go for it," she said.
"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."
Wishart said LB110 was the product of hours of work with doctors, pharmacists, 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," Wishart said.
Two-thirds of states have medical marijuana laws, the first enacted 23 years ago, and to date those laws have not been successfully challenged. In fact, Wishart said, Congress has directed the Department of Justice to back off from state medical cannabis programs.
"We are a country of dual sovereignty, complete with the 10th Amendment that affirms the rights of states," she said.
Since the Gonzales decision, she said, Congress has made a commitment not to allow the U.S. Department of Justice to spend money to interfere with state marijuana laws, including sales, cultivation and recreational use.
"This is the real world that we're living in and have been living in for the past 23 years," she said.