by Timothy Baldwin, LDL
Montana Senate Bill 423 (2011) was passed by the house and Senate this session. The legislature submitted the same to Governor Brian Schweitzer reportedly on May 3, 2011. Schweitzer has 10 days from that date to veto the bill. If he does not, it becomes law by default. He has already indicated he will not veto the bill thus allowing it to become law. Some provisions are to become effective immediately and the remaining on July 1, 2011.
Despite the legislators’ attempt to expressly repeal Montana’s Medical Marijuana Act, Section 50-46, et. seq., MCA (the Act), which was vetoed by Schweitzer, they were able to paint the horse a different color for the bill not to be vetoed. Disguised as an amendment to the Act, SB423 actually repeals every section of the Act: “REPEALING SECTIONS 50-46-101, 50-46-102, 50-46-103, 50-46-201, 50-46-202, 50-46-205, 50-46-206, 50-46-207, AND 50-46-210, MCA.” Is form greater than substance here?
SB 423 will most likely become law because of the legislature’s arrogance or indifference and the governor’s unwillingness to uphold the constitutional authority of the people to govern themselves. This is an atrocity committed upon the sovereign body of Montana.
The Act was passed by a citizen’s initiative in 2004 pursuant to Montana’s constitution. As reflected in Montana’s constitution, the political power of the state rests only in the people of Montana. Mont. Const., Article 2, Section 1 (1972) states, “All political power is vested in and derived from the people. All government of right originates with the people, is founded upon their will only, and is instituted solely for the good of the whole.”
The people are the principal and the legislators are the agent. The legislators can do no more than what the people grant. Evidently, the legislators and governor believe the people of Montana have granted them power of repealing a law the people have directly enacted. Principally, such a belief is flawed and inconsiderate of our constitutional structure. Mont. Const., Article 5, Section 1 (1972) states, “The legislative power is vested in a legislature consisting of a senate and a house of representatives. The people reserve to themselves the powers of initiative and referendum” (emphasis added).
In direct contrast to the U.S. Constitution (which delegates to the federal government only what is expressly granted by the States), a State constitution grants to the legislatures power to govern in whatever manner comports to the purpose of the constitution except those rights and powers retained by the people. Put differently, in the federal constitution, everything is retained that is not expressly granted; and in a state constitution, everything is granted, that is not retained (and does not plainly contradict the laws of Nature). Every standard of review regarding the people’s reserved power must be strictly construed against the government and in favor of the people.
Clearly, Article 5, Section 1 recognizes the reserved power of the people to pass laws by initiative. All other legislative power is vested in the legislative body. The people did not transfer power to the legislature the power to repeal or alter what the people have passed through initiative. We expressly reserved that to ourselves.
To hold otherwise is to create quite a political absurdity and contradiction. If the legislature were to have the power to undo what the ultimate sovereign power of the State has done, then Mont. Const., Article 2, Section 1 is truly meaningless and the power of the citizens of Montana becomes non-effectual. Further, it would dis-incentivize all attempts by the people to create laws by their initiative, knowing that the law they took countless time and money preparing and executing could be overturned in the legislature. Indeed, getting a law passed by citizen initiative is a daunting political task and takes serious determination.
The issue surrounding SB423 is not about marijuana. If you do not like marijuana, get over your biases for a moment and recognize the real issue. Remember, if the legislature can do this regarding the medical marijuana act, they can repeal your pet-law. The issue is about the will of the sovereign body of Montana, the power to govern ourselves and the limitation of government.
The justification of passing SB423 I have heard from many 2011 legislators is “the will of the people has changed; a majority of Montanans do not want a medical marijuana act in this state anymore.” I find this to be disingenuous and a shield for doing legally what the constitution prohibits politically.
The source of this law came from the people—the principals and sovereigns of Montana. If the legislators truly believed that Montanans did not want a medical marijuana act, then they should draft a bill to that effect and submit it to the people for a ballot vote. Send the decision back to the source of its creation—the people. I did not hear of one legislator who even suggested such a means of the Act’s repeal.
Even if it is arguable that the legislature has the power to repeal a citizens’ initiative, the statesman should have moved the legislative body to send the repeal bill to the people for their vote.
They may not realize it, but the legislature and governor have ticked off many thousands of people, those living in Montana and those watching us—and rightfully so.