Nebraska Attorney General Mike Hilgers
Nebraska Attorney General Mike Hilgers has approved regulations submitted by the Nebraska Medical Cannabis Commission, but cautioned that ongoing legal challenges could ultimately invalidate the rules and that future regulations may face constitutional scrutiny.
In a statement released Tuesday, Hilgers said his review under Nebraska’s Administrative Procedure Act was limited to determining whether the commission had the legal authority to adopt the regulations, whether the regulations are constitutional, and whether they substantially match the version published for public comment.
Hilgers concluded the commission currently has statutory authority under the Nebraska Medical Cannabis Regulation Act to adopt the regulations. However, he emphasized that authority depends on whether the law itself ultimately survives a legal challenge now pending before the Nebraska Supreme Court.
The Attorney General’s Office is challenging the validity of the 2024 ballot initiative that created Nebraska’s medical cannabis program, alleging widespread petition fraud. If the Nebraska Supreme Court—or a lower court on remand—determines the initiative did not qualify for the ballot, Hilgers said the Medical Cannabis Regulation Act would no longer be valid law, leaving the regulations without legal authority.
Hilgers also addressed the relationship between Nebraska’s medical cannabis program and federal law.
He said the regulations do not clearly violate either the Nebraska or the U.S. Constitutions on their face. While marijuana remains illegal under federal law, Hilgers noted Congress has repeatedly prohibited the U.S. Department of Justice from using federal funds to interfere with state medical marijuana programs, and recent federal actions to reschedule marijuana for states with medical cannabis laws further support his conclusion.
At the same time, Hilgers warned that future regulations could create constitutional problems if they extend beyond legitimate medical use or fail to include adequate patient protections. He also noted that individual applications of the regulations could still be challenged under federal law.
Hilgers stressed that approving the regulations should not be interpreted as an endorsement or opposition to Nebraska’s medical cannabis policy.
“My review of the medical cannabis regulations does not imply my support for or opposition to the regulations as a policy matter,” Hilgers wrote. “I performed my statutory duty to review the lawfulness of agency regulations without respect to policy implications.”
With the Attorney General’s review complete, the regulations will now be forwarded to Governor Jim Pillen for consideration and final approval under Nebraska law.