Commentary: Anderson is wrong about medical marijuana compromise

In a recent commentary, attorney Rocky Anderson accused the Legislature of ignoring the will of the people in passing the compromise legislation on medical marijuana. In particular, he accused this writer of “hypocrisy” and “disdain for the people” for acknowledging that all government power originates with the people, and then voting against what he perceives as the “will of the people.” These claims are untrue and manifest an obvious misunderstanding of the law.

Under the Utah Constitution, “All political power is inherent in the people” (Art. I, Sec. 2), meaning that the source of all government power is the people. However, in our republican form of government, the people have delegated most of that power to the different branches of government. The purpose of that separation of powers is to provide “checks and balances” on government power to prevent tyranny and protect liberty.

Legislative power, the power to pass laws, is vested in both the Utah Legislature, as elected by the people, and in the people themselves. The Legislature enacts law through legislation; the people enact law through the initiative process — placing a proposed law on the ballot for majority vote of the people (Art. VI, Sec. 1).

As explained by the Utah Supreme Court, “Nothing in the text or structure of Article VI suggests any differences in the power vested simultaneously in the ‘Legislature’ and ‘the people.’ The initiative power of the people is thus parallel and coextensive with the power of the legislature.” (Carter v. Lehi City, 2012 UT 2.)

Accordingly, the legislative powers of the Legislature and the people have equal legal status. Neither is superior to the other. Neither “trumps” the other. Both are subject to checks and balances. A law passed by the Legislature is subject to veto, judicial review, referendum approval by the people and amendment or repeal by a future Legislature. Likewise, an initiative law approved by the people is neither final nor unreviewable, but is subject to checks and balances.

Laws passed by the people, just like legislative provisions, are subject to judicial review and to amendment or repeal by subsequent legislation or initiative. For example, it would be absurd to suppose that an initiative harmful to the public, such as a law removing all speed limits, or a law permitting child pornography, would be beyond judicial or legislative review just because it was passed by initiative of the people. In our dual legislative system, laws enacted by both the Legislature and the people are subject to revision by the other.

Contrary to Anderson’s claims, the Legislature did not “disregard the will of the people” in passing the compromise medical marijuana law. Many of our people, including government and community leaders, health care providers, law enforcement, and even leading initiative organizers, recognized that the initiative was worded too broadly and lacked sufficient safeguards to prevent medical use of marijuana from crossing into recreational use. The initiative law was fraught with potential for abuse, thereby endangering the health and safety of the public — particularly our youth.

The initiative represented the desire of the people for medical marijuana, and the people approved it, despite its shortcomings, because they had no alternative for a better plan. Initiatives are presented on an all-or-nothing basis.

By contrast, the Legislature had the choice to approve the compromise bill, providing medical marijuana with limits and safeguards, or leave the initiative as written, with its acknowledged deficiencies. Accordingly, the Legislature did not ignore the “will of the people.” Both the initiative and the subsequent compromise bill manifest the “will of the people” — initially by direct vote of the people, and subsequently by vote of their elected representatives.

Anderson also argued that the compromise medical marijuana law passed by the Legislature violates federal law by establishing state controls over the production and distribution of medical marijuana. However, the federal Controlled Substances Act of 1970 prohibits any use of marijuana; therefore, the marijuana initiative as passed by the people also violated federal law.

The Legislature was thus faced with the choice of which law would most likely survive federal challenge: the uncontrolled production, trafficking and recreational use of marijuana permitted by the initiative, or the state-monitored compromise legislation that strictly limits marijuana to its intended medical use.

The U.S. Justice Department continues to prosecute production and trafficking of recreational marijuana, while allowing an increasing majority of states to authorize medical use. The silent acquiescence of Congress over the past 50 years also indicates tacit federal approval of state-controlled medical marijuana. Accordingly, the Legislature justly and properly concluded that the compromise medical marijuana bill would more likely survive federal challenge than the initiative.

In short, the Legislature has the highest regard and respect for the power of the people to pass laws through the initiative process, but those laws are subject to review and revision to the same extent as laws passed by the Legislature. Our legislative intent was not to supplant, but to improve, the medical marijuana law to render it more consistent with public policy of health and safety, as well as more defensible under federal law.

Rep. Merrill Nelson, Grantsville, represents District 68 in the Utah House of Representatives.