Senator Andrew La Grone
AGO 19-10
No. 19-010
Nebraska Attorney General Opinion
State of Nebraska office of the Attorney General
August 1, 2019
SUBJECT:
Constitutionality of LB 110 -Adoption of the Medical Cannabis
Act
REQUESTED
BY: Senator Andrew La Grone Nebraska Legislature
WRITTEN
BY: Douglas J. Peterson, Attorney General, David A. Lopez,
Deputy Solicitor General
INTRODUCTION
You
have requested an opinion from this office regarding the
constitutionality of LB 110, which would create the Medical
Cannabis Act ("MCA"). Committee Amendment 1680 to
LB 110 ("AM 1680"), currently pending on General
File, 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
related rulemaking.
Your
specific question asks whether the MCA, if enacted, would be
preempted by the federal Controlled Substances Act
("CSA"), the money laundering statutes, the
unlicensed money transmitter statute, or the Bank Secrecy
Act. To the extent the latter three categories of statutes
govern this question, it is primarily based on the underlying
CSA provisions. See, e.g., 18 U.S.C. §§
1956(c)(7)(B)(i), 1957 (money laundering); 18 U.S.C. §
1960(b)(1)(C) (unlicensed money transmitting); 31 U.S.C.
§ 5318; 31 C.F.R. § 1020.320 (Bank Secrecy Act
regulation requiring financial institutions to file
suspicious activity reports for transactions involving funds
derived from federally illegal activities). The following
analysis will thus focus on preemption under the CSA. As
explained below, it is the opinion of this office that the
MCA would be preempted.
ANALYSIS
I.
The Controlled Substances Act
The CSA
establishes a comprehensive federal scheme to regulate the
market in controlled substances. This "closed regulatory
system mak[es] it unlawful to manufacture, distribute,
dispense, or possess any controlled substance except in a
manner authorized by the CSA." Gonzales v.
Raich, 545 U.S. 1, 13 (2005) (citing 21 U.S.C.
§§ 841(a)(1), 844(a)).
To
effectuate that "closed" system, the CSA
"authorizes transactions within 'the legitimate
distribution chain' and makes all others illegal."
United States v. Moore, 423 U.S. 122, 141 (1975)
(quoting H.R. Rep. No. 1444, supra, Pt. 1, at 3). Violators
of the CSA are subject to criminal and civil penalties, and
ongoing or anticipated violations may be enjoined. 21 U.S.C.
§§ 841-863, 882(a).
The CSA
categorizes all controlled substances into five schedules.
Id. at § 812. The CSA's restrictions on the
manufacture, distribution, and possession of a controlled
substance depend upon the schedule in which the drug has been
placed. Id. at §§ 821-829. The drugs are
grouped together based on their accepted medical uses, the
potential for abuse, and their psychological and physical
effects on the body. Id. at §§811, 812.
Each schedule is associated with a distinct set of controls
regarding the manufacture, distribution, and use of the
substances listed therein. Id. at §§
821-830.
Since
Congress enacted the CSA in 1970, marijuana and
tetrahydrocannabinols have been classified as Schedule I
controlled substances. See Comprehensive Drug Abuse
Prevention and Control Act of 1970, Pub. L No. 91-513, §
202, 84 Stat. 1249 (Schedule I(c)(10) and (17)); 21 U.S.C.
§ 812(c) (Schedule I(c)(10) and (17)).
A drug
is listed in Schedule I if it has "a high potential for
abuse," "no currently accepted medical use in
treatment in the United States," and "a lack of
accepted safety for use . . . under medical
supervision." 21 U.S.C. § 812(b)(1)(A)-(C). By
classifying marijuana as a Schedule I drug, Congress mandated
that the manufacture, distribution, or possession of
marijuana be a criminal offense, with the sole exception
being use of the drug as part of a Food and Drug
Administration preapproved research study. 21 U.S.C.
§§ 823, 841(a)(1), 844(a); United States v.
Oakland Cannabis Buyers' Coop., 532 U.S.
483,489-490,492(2001).
In the
CSA, Congress included findings and declarations regarding
the effects of drug distribution and use on the public health
and welfare and the effects of intrastate drug activity on
interstate commerce. Congress found, for example, that
"[t]he illegal importation, manufacture, distribution,
and possession and improper use of controlled substances have
a substantial and detrimental effect on the health and
general welfare of the American people." 21 U.S.C.
§ 801(2). Congress also found:
A major portion of the traffic in controlled substances flows
through interstate and foreign commerce. Incidents of the
traffic which are not an
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