Government Relations

2019 Washington County Legislative Delegation

Congressional Delegation 2019-2020 115th Congress

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Legislative Update- April 19, 2019

Constitutional Disputes Threaten Marijuana Legalization Bill

The most popular bet in the annual adjournment pool run by the House Clerk’s Office is May 18, which would give lawmakers only four weeks – about 18 workdays – to finish work for the year.

Perhaps the most challenging issue that remains is a bill to create a tax-and-regulate system for marijuana sales (S.54). With the clock ticking down, members of the House Government Operations Committee worked into the night on Thursday as they struggled to resolve a multitude of complex challenges to creating an entirely new regulatory structure for a substance that remains illegal under federal law.

Three constitutional issues dominated the marijuana debate this week, and how they are resolved will almost certainly determine whether a bill is signed into law.

The first is a somewhat arcane dispute over the appointment of a new Cannabis Control Board. Gov. Phil Scott’s General Counsel Jaye Pershing Johnson made a rare committee appearance to argue that the Senate-passed bill was an unconstitutional breach of separation of powers because it failed to allow the governor to appointment a majority of the board, which would have primarily executive branch duties. Johnson forcefully argued that the board structure was an unprecedented encroachment on the governor’s duty to ensure accountability in the implementation of the law.

While acknowledging room for differing opinions, Johnson left little doubt that the governor would veto the bill if the structure of the board was not changed. “Signing the bill would be an abdication of his responsibility,” she said.

Assistant Attorney General David Scherr and Legislative Counsel Betsy Ann Wrask presented counter arguments, saying there is ample precedent for the legislature to make a majority of appointments to an administrative board.

Democratic committee members appear unwilling to accept Johnson’s arguments. They are unlikely to give the governor the appointment power he wants, reflecting in part a general reluctance to cede legislative power, as well as specific skepticism about how the administration would run a program that it largely opposes.

Scott drew a similarly hard line this week on the issue of saliva testing, saying even more explicitly that he’ll veto a bill that doesn’t authorize it as a way for police to detect impaired driving. Civil liberty advocates howled in protest, saying that such testing would allow for unconstitutional searches. The House Judiciary Committee has not decided where it stands on the issue.

A third committee grappled on Friday with yet another constitutional issue – whether to grant a preference to in-state companies in awarding marijuana licenses. In unusually forceful testimony for legislative counsel staff, attorney David Hall told the committee unequivocally that it couldn’t do what it wanted:  to give licensing priority to Vermont-owned companies. The in-state preference reflects a widely-held concern among legislators that a new cannabis industry should not be dominated by large, out-of-state concerns; particularly tobacco companies.

In the end, the committee conceded to their attorney’s arguments and agreed to strike the in-state preference.

The constitutional questions are a small subset of the myriad of issues that at least five House committees have to resolve before the bill comes to the floor. With Scott holding an upper hand in the marijuana debate, Democratic lawmakers face difficult choices between pragmatism and principal in the days ahead.

Final push on clean water governance bill
The House Committee on Natural Resources continued its work this week on S.96, a bill that would adopt a clean water investment and governance proposal promoted by the Agency of Natural Resources. Read more

House Health Care Committee contemplates additions to surgical center bill
The House Health Care Committee continued its review this week of S.73, a bill to require ambulatory surgical centers to obtain operating licenses from the Vermont Department of Health. Read more

Tobacco-21 legislation moves to House floor
The House Ways and Means Committee this week became the second committee to unanimously approve legislation to increase the minimum age for tobacco purchases to 21. Read more

PFAS bill passes House 
A bill to regulate polyfluoroalkyl substances compounds, S.49, was approved by the House this week. Read more

Senate Economic Development Committee wants action on workforce development
The Senate Committee on Economic Development, Housing, and General Affairs continued to hear testimony this week on H.533, a workforce development bill that passed the House last month. Committee Chair Michael Sirotkin, D-Chittenden, continued to express his preference for taking action over simply commissioning studies, but the committee has yet to make a final decision on what those actions should be. Read more

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For more information about this Legislative Update, please contact Tricia Augeri.

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