Kuehn v. Lippincott et al. — Federal Preemption Suit

Last verified: May 2026

The Legal Theory

The Supremacy Clause (U.S. Const. art. VI, cl. 2) provides that federal law is "the supreme Law of the Land." When state law conflicts with federal law, the federal law typically prevails. Kuehn argues that:

• Cannabis is a Schedule I controlled substance under the federal Controlled Substances Act (21 U.S.C. § 812).
• The CSA prohibits manufacture, distribution, and possession of cannabis under 21 U.S.C. §§ 841 and 844.
• Nebraska Initiative 437 (which permits patient possession of up to 5 oz) and Initiative 438 (which authorizes state licensing of cultivation, manufacturing, transport, and dispensing) directly conflict with federal law.
• Therefore, the Supremacy Clause renders I-437 and I-438 unconstitutional and unenforceable.

The Standing Problem

The principal legal obstacle to Kuehn’s federal-preemption challenge is standing. Federal courts (and Nebraska courts) generally require that a plaintiff show:

• Injury in fact — concrete and particularized harm.
• Causation — the harm is fairly traceable to the challenged conduct.
• Redressability — a favorable decision would redress the harm.

Judge Strong ruled June 26, 2025 that Kuehn lacked standing to assert federal-preemption claims because:

• Kuehn is a private citizen, not a federal-law-enforcement officer or U.S. Attorney.
• The federal Controlled Substances Act is enforceable by the United States, not by private parties under the Supremacy Clause.
• Kuehn could not show concrete particularized injury from Nebraska’s state-licensing of medical cannabis (as distinct from generalized policy disagreement).

The Nebraska v. Colorado Precedent

Nebraska previously pursued a Supremacy Clause theory in Nebraska v. Colorado, an action filed in the U.S. Supreme Court in 2014 in which Nebraska and Oklahoma challenged Colorado’s adult-use legalization on the theory that Colorado’s framework conflicted with the federal CSA and produced cross-border cannabis-trafficking harms in neighboring states. The U.S. Supreme Court declined to hear the case in March 2016 (6-2 to deny leave to file complaint; Justices Thomas and Alito would have granted leave).

The Nebraska v. Colorado declination is the principal precedent against Kuehn’s theory: if Nebraska itself could not establish federal-preemption standing against Colorado in the U.S. Supreme Court, a private Nebraska plaintiff faces an even higher standing bar against Nebraska’s own state-law program.

The April 27, 2026 Oral Argument

The Nebraska Supreme Court heard oral argument on the standing question April 27, 2026:

• Eddie Greim (Kansas City attorney) for Kuehn: "It is not enough to wait for the United States government to one day come to Nebraska and challenge these acts." Greim argued that private-party standing should be available where the federal government declines to enforce.
• Deputy Solicitor General Zachary Pohlman (AG Hilgers’s office) defended Kuehn’s standing position, aligning with the private plaintiff.
• Jason Grams (representing the Medical Cannabis Commission) defended the standing dismissal.
• Daniel Gutman (campaign sponsors) defended the standing dismissal.

⚠️ Decision pending as of May 2026.

If Kuehn Wins on Standing

If the NE Supreme Court reverses Strong’s standing dismissal, the federal-preemption challenge would be remanded to Lancaster County for a merits ruling. The merits analysis would turn on:

• Whether the federal CSA preempts state-law cannabis legalization (the federal courts have generally answered no — states are not required to criminalize what federal law criminalizes).
• Whether state-licensing of cultivation/manufacturing/dispensing conflicts more directly with federal law than passive non-criminalization (the answer remains unsettled in federal preemption doctrine).
• Whether a state can legitimately license activity that remains a federal crime.

If Kuehn Loses on Standing

If the NE Supreme Court affirms Strong’s standing dismissal, the federal-preemption challenge effectively dies as a private-plaintiff vehicle. Future federal-preemption challenges would require:

• Direct U.S. Attorney enforcement (DOJ has historically declined to pursue state-licensed cannabis activity).
• State-on-state lawsuits like the failed Nebraska v. Colorado action.
• Federal litigation against specific cannabis businesses, which has not occurred against state-licensed medical-cannabis operations.

The Federal Schedule III Rescheduling Wildcard

On April 23, 2026, Acting U.S. Attorney General Todd Blanche issued an order downgrading state-licensed medical cannabis and FDA-approved marijuana products from Schedule I to Schedule III of the federal Controlled Substances Act (published at 91 Fed. Reg. 22714 on April 28, 2026). The rescheduling, if it survives federal-court challenge, materially weakens Kuehn’s federal-preemption theory because cannabis would no longer be a Schedule I prohibited substance. Schedule III substances (codeine combinations, ketamine, anabolic steroids) are legal under federal law with appropriate prescribing authority.

Kuehn’s appellate posture as of April 27, 2026 was filed before the rescheduling and does not address its impact. The rescheduling could moot the federal-preemption challenge entirely if upheld by federal courts. As of May 2026, the rescheduling order is novel and may be challenged in federal court; its application to Nebraska’s specific situation is untested.

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