Hit & Run

Vetoing Voters, Maine's Governor Blocks Marijuana Legalization

Paul LePage says Maine shouldn't implement a legalization initiative until it's clear how the feds will respond.

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Governor's Office

Maine Gov. Paul LePage on Friday vetoed a bill that would implement the marijuana legalization initiative that voters approved last November by establishing a system to license and regulate production and distribution of cannabis for the recreational market. Today state legislators are considering whether to override his veto or further delay commercial cultivation and sales. The bill passed last month with enough votes to override a veto in the Senate but not in the House.

LePage opposed the legalization initiative, Question 1, and has repeatedly expressed concerns about implementing it. In his veto message, he says he "cannot in good conscience" proceed with legalization in Maine until "I clearly understand" how the federal government will react. While "the Obama administration said they would not enforce Federal law related to marijuana" in states that have legalized the plant, LePage says, "the Trump administration has not taken that position."

Attorney General Jeff Sessions has not rescinded the Obama administration's policy of prosecutorial forbearance. But he has said he expects states that have legalized marijuana to provide evidence that they respect federal enforcement priorities such as preventing underage consumption and interstate smuggling.

"When the referendum seeking to legalize marijuana passed," LePage says, "it put me in a difficult position: to uphold Maine law, I would be required to flout federal law. I have sought guidance from the U.S. Attorney General on how the federal government intends to treat the legalization of marijuana by states across the nation, which conflicts with federal law. As an increasing number of states embark upon this path, it is imperative that the federal government takes a strong and public position on this issue."

Contrary to LePage's implication, much of Question 1 clearly does not "flout federal law." Provisions that took effect on February 1, for example, eliminated state penalties for possession (up to two and a half ounces for adults 21 or older) and home cultivation (up to six flowering plants). The Controlled Substances Act (CSA) does not require states to criminalize everything it criminalizes, and it would be unconstitutional if it did. When a state begins awarding licenses for commercial production and distribution of a substance banned by the CSA, there is a stronger argument that it is violating the statute. But the Obama administration never made that argument in court, and so far neither has the Trump administration.

"Gov. LePage has made a mistake by vetoing this legislation," says David Boyer, who managed the Yes on 1 campaign. "Instead of a regulated and controlled system of marijuana cultivation and sales, Maine will continue to support the unregulated market. In 2014, the governor said he would implement a legalization law if approved by voters, but he has failed to uphold that commitment." Boyer notes that Massachusetts Gov. Charlie Baker, like LePage a Republican who opposed legalization, nevetheless signed a bill implementing his state's marijuana initiative.

"It is very disappointing to see this unprecedented level of gubernatorial interference in Maine," says Matthew Schweich, who also worked on the legalization campaign. "The outcome of the referendum last year was clear: Mainers want marijuana legal, taxed, and regulated for adults. With his veto of this bill, Gov. LePage has effectively chosen to veto the will of the people."

The oddest part of LePage's veto message may be his invocation of opioid-related deaths as a reason to keep marijuana illegal. "The dangers of legalizing marijuana and normalizing its use in our society cannot be understated," he says, although he probably means overstated. "Maine is now battling a horrific drug epidemic that claims more than one life a day due to overdoses caused by deadly opiates. Sending a message, especially to our young people, that some drugs that are still illegal under federal law are now sanctioned by the state may have unintended and grave consequences."

Update: On Monday a vote to override LePage's veto failed to attract enough votes in the House. The commercial provisions of Question 1 take effect next February under a previously enacted moratorium, which the legislature may now decide to extend.