From Tenth Amendment Center
AUGUSTA, Maine (Nov. 14, 2017) – Maine Gov. Paul LePage vetoed a bill that would have created a structure to license the commercial cultivation of sale and marijuana in the state, leaving the state’s voter-approved marijuana legalization efforts in limbo.
Maine voters legalized marijuana in the state through a referendum in November 2016. The legislature passed House Bill 1650 (LD1650) to implement the referendum during a special session. The legislation would have created a licensing and taxation program for marijuana sales, and put regulations in place for the commercial cultivation of cannabis. The implementation bill passed 22-9 in the Senate and 81-50 in the House.
LePage vetoed the measure, in part because it would put the state in conflict with federal law.
“Until I clearly understand how the federal government intends to treat states that seek to legalize marijuana, I cannot in good conscience support any scheme in state law to implement expansion of legal marijuana in Maine. If we are adopting a law that will legalize and establish a new industry and impose a new regulatory infrastructure that requires significant private and public investment, we need assurances that a change in policy … will not nullify those investments.”
LePage also said the bill sets unrealistic timelines for launching the market, fails to address shortcomings in the medical marijuana program, creates a confusing regulatory system, and might not generate enough tax revenue to cover the cost of market implementation or regulation, according to reporting in the Portland Press Herald.
An attempt to override the veto fell 17 votes short.
As it stands under the law established by the referendum, adults in Maine can grow up to six mature marijuana plants and possess up to 2½ ounces of marijuana for personal use, but they can’t legally buy or sell it. The referendum left it to the state government to create a framework for licensing sellers and commercial cultivation. Until that happens, it will remain illegal to buy or sell cannabis in the state.
“I feel like we legalized gasoline, but not gas stations,” Rep. Martin Grohman told the Portland Press Herald.
Legislators will resume efforts to create a viable marijuana program during the 2018 session.
Lack of a licensing program hasn’t stopped enterprising marijuana dealers. According to the USA Today, they have been exploiting the state’s lack of regulation and enforcement by giving away cannabis but charging hefty delivery fees. The referendum repealed a state law that prohibited marijuana from being given away or used as a promotional item.
LePage talked tough against the feds when Obama was in office. He told the U.S. Department of Commerce to take a hike when it sent a request asking him to turn over classified state information relating to people on Maine’s welfare rolls. LePage refused to cooperate, telling the feds “states don’t work for you.” But he doesn’t like marijuana and he’s consistently attempted to undermine the will of the people. During a radio interview on WVOM radio in Bangor, LePage scolded the legislature for not simply overriding the referendum. He also indicated he was urging the feds to do come to Maine and “put the hammer down.”
Despite the federal prohibition on marijuana, state legalization of cannabis is perfectly legal, and the feds can do little if anything to stop it in practice.
FEDERAL PROHIBITION
Under the federal Controlled Substances Act (CSA) passed in 1970, the federal government maintains complete prohibition of marijuana. Of course, the federal government lacks any constitutional authority to ban or regulate cannabis within the borders of a state, despite the opinion of the politically connected lawyers on the Supreme Court. If you doubt this, ask yourself why it took a constitutional amendment to institute federal alcohol prohibition.
Legalization of marijuana in Maine removes a layer of laws prohibiting the possession and use of marijuana, but federal prohibition remains on the books.
FBI statistics show that law enforcement makes approximately 99 of 100 marijuana arrests under state, not federal law. By mostly ending state prohibition, Maine essentially sweeps away most of the basis for 99 percent of marijuana arrests.
Furthermore, figures indicate it would take 40 percent of the DEA’s yearly-budget just to investigate and raid all of the dispensaries in Los Angeles – a single city in a single state. That doesn’t include the cost of prosecution. The lesson? The feds lack the resources to enforce marijuana prohibition without state assistance.
NO OBLIGATION TO COOPERATE
Despite LePage’s hysterics, Maine is under no obligation to cooperate with enforcement of federal marijuana laws. The Supreme Court has firmly established that the federal government cannot force states to use its personnel or resources to enforce federal law or implement federal programs. The so-called anti-commandeering doctrine is based primarily on four Supreme Court cases dating back to 1842. Printz v. US (1997) serves as the cornerstone. In it, Justice Scalia wrote for the majority:
“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policy making is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”
State legalization schemes simply end state enforcement of federal prohibition. The feds remain free to regulate marijuana – if they can. But with more than half the country legalizing marijuana, the feds find themselves in a position where they simply can’t enforce prohibition anymore.
The lesson here is pretty straightforward. When enough people say, ‘No!’ to the federal government, and enough states pass laws backing those people up, there’s not much the feds can do to shove their so-called laws, regulations or mandates down our throats.
Mike Maharrey
November 14, 2017 at 01:20PM
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