Gov. Paul LePage is on shaky legal ground — again.
As part of his ongoing — never ending — and unnecessary feud with the Legislature, LePage on Monday signed an executive order to move oversight of the newly legal recreational marijuana market to the Bureau of Alcoholic Beverages and Lottery Operations.
The governor’s executive order also restricts the bureau from taking any action, such as rulemaking, unless the Legislature appropriates new dollars for the work.
This is a ridiculous fight to be having and demonstrates, once again, that the governor is more interested in fighting than he is in governing.
And, like so many times before, the governor’s actions appear to be necessary at best and extra-legal at worst. (That’s a nice way of saying might be illegal.)
And it’s all for nothing.
Voters want marijuana to be legal for adults older than 21. They also want marijuana regulated and taxed in a manner similar to alcohol, so that they can be assured that kids aren’t getting weed and that taxpayers benefit from the new industry.
The governor opposed the referendum as did a number of other lawmakers, and now they are dragging their feet on implementation.
The Legislature passed an emergency bill, which the governor reluctantly signed, that made technical fixes to the legalization bill. It also delayed implementation of the marijuana marketplace until next year.
Backed into the law was a nine-month delay. The Legislature extended that deadline. It would have been better policy for the Legislature to wait on the extension — there’s still nearly five months left in the session — to see if it was necessary. Government can move slowly, especially when the governor is in opposition, and the quick move to further delay implementation of the law relieves the pressure to get started now.
Moving oversight of marijuana to the bureau that oversees alcohol makes sense. And, in fact, House Speaker Sara Gideon has introduced legislation to make that change. It’s among a number of bills that the Legislature will consider to tweak the law.
But LePage, throwing stones from his glass house, says he doesn’t trust the Legislature.
So, following the lead of his fellow traveler Donald Trump, he issued an executive order of questionable legal authority and one that was completely redundant.
Executive orders can be powerful tools, but they cannot override the law. They are directives to the executive branch only.
Right now, the law on the books leaves oversight of marijuana — including rulemaking — under the authority of the Department of Agriculture. And the current law already gives the agriculture commissioner the ability to delegate rule-making to the Department of Public Safety if he thinks it’s necessary.*
Further, the Legislature can direct the executive branch to implement new laws within existing resources. In fact, it’s a common practice, though one that should be used a lot less than it is. (We should fund the activities required by law and stop trying to get water from the government stone.)
The Maine Constitution requires that the governor “take care that the laws be faithfully executed.”
It simply does not give him the authority to ignore the law or refuse to enforce laws with which he disagrees.
The entire episode is a power play by the governor to demonstrate his authority. He was angry that the Legislature refused his late amendment to the marijuana law, choosing instead to give his ideas a public hearing and to consider them thoughtfully and include public input.
So he signed his executive order to poke them in the eye, complete with an insult.
It’s ridiculous. It’s another abuse of power. And, I believe it’s legally immaterial. The governor likes to fight for the sake of fighting and shows us once again that he’s uninterested in the actual work of governing.
In all likelihood, the Legislature will move oversight of marijuana to the same department that regulates alcohol, and, following the will of voters, they are likely to appropriate new dollars to set up the regulatory framework.
If anything, the governor’s stunt taunts the Legislature to reject the plan because it purposefully steps on legislative prerogative.
Republicans and Democrats in the Legislature, supporters of legal marijuana and opponents, should reject the governor’s efforts. They should defend, staunchly, the separation of powers among the branches of government, and they should hold fast to the powers and authority granted to them by the state constitution.
As we are witnessing in Washington, when the legislative branch refuses to stand up to a power-hungry megalomaniac, chaos follows. If possible, Trump’s illegal actions in D.C. will only spur LePage to further push the bounds of the law in Maine.
It’s hard to imagine given LePage’s history of retribution and his administration’s willingness to ignore the law that things could get worse, but if the Legislature — united — doesn’t stand up to him, they will. It’s time to stand up for the rule of law and common sense.
*This post has been updated.