1. Utah legislature modifies medical marijuana initiative
2. Appeals court rules federal housing board structure violates separation of powers
3. What’s the Tea?

Utah legislature modifies medical marijuana law

Sometimes voters approve an initiated state statute that is then changed by legislators in a process known as legislative alteration. An example of such changes happened this week to Utah’s medical marijuana measure. An initiated state statute is a law that a state adopts via the ballot initiative process. Twenty-one states have a process by which changes to state law can be put before voters through an initiated state statute signature petition process. 

Voters approved Utah Proposition 2, which legalized the medical use of marijuana for individuals with qualifying medical illnesses, in November 2018. It passed 53% to 47%.  

The state legislature convened a special session this week to, among other things, alter the state’s medical marijuana law, first passed by voters as Proposition 2 and later altered and superseded by House Bill 3001 in December 2018. Among other modifications, HB 3001 provided for a state-run medical marijuana dispensary, removed Proposition 2's provision allowing patients to grow their own marijuana and made changes to the list of conditions that qualify for medical marijuana treatment.

Utah Governor Gary Herbert (R) said, “My administration is dedicated to ensuring that quality, medical-grade cannabis products are accessible to patients by March of 2020. Removing the requirement for a state central fill pharmacy will provide efficient and timely distribution of this substance for those who need it.”  

The removal of the provisions for the state-run medical marijuana dispensary comes after Davis County and Salt Lake County attorneys in July advised their health departments against dispensing medical marijuana, stating that county health department workers could be prosecuted for marijuana distribution. Davis County Attorney Troy Rawlings said,  “the federal Controlled Substances Act is directly in conflict with what the state statute [under HB 3001] requires health departments to do. There is no exemption in federal law for being basically a marijuana distributor — a dealer — for a county. There is no exception."

During the session, the legislature unanimously passed Senate Bill 1002 (SB 1002) which repealed provisions providing for a state-run medical marijuana dispensary. 

The bill also made the following modifications:

• Provided for awarding licenses to operate 14 private dispensaries, and allowed the state Department of Health to issue additional licenses "based on market necessity";

• Authorizes the Utah Department of Agriculture and Food to license research universities to research medical marijuana;

• Provided for electronic medical marijuana cards;

• Provided that a court could not consider the use of medical marijuana differently than the legal use of any prescribed medication that is a controlled substance.  

Utah is one of 11 states that have no restrictions on legislative alterations, which means the legislature can amend or repeal initiated state statutes with a simple majority vote at any time.

Voters approved 97 initiated state statutes and two initiated ordinances in D.C. from 2010 to 2018. Of these 99 initiatives from 2010 through 2018, 28 were repealed or amended as of April 2019. The states with the most cases of legislative alteration since 2010 were Maine—with four initiatives altered out of eight approved—and Colorado and Oregon—each with three initiatives altered out of five approved. 

Among initiatives approved from 2010 through 2018, marijuana was the topic that featured the most legislative alterations, as eight initiatives were changed. 

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Appeals court rules federal housing board structure violates separation of powers 

The composition of a regulatory agency formed after the 2008 recession to oversee the nation’s housing market has been ruled unconstitutional by a federal appeals court. That decision remanded the case back to a federal district court to resolve other questions about policy decisions made by the agency. 

Congress formed the Federal Housing Finance Agency (FHFA) through the Housing and Economic Recovery Act (HERA) of 2008. The FHFA is an independent government agency that regulates Fannie Mae and Freddie Mac, the government-sponsored entities that deal in mortgages, and the Federal Home Loan Bank System. According to its website, approximately 80 percent of United States housing lenders rely on the Federal Home Loan Bank System.

The FHFA has a single director, who is appointed by the president with the advice and consent of the United States Senate. In July 2018, a three-judge panel of the Fifth Circuit Court of Appeals held that structure unconstitutional because it is led by a single director who is only removable by the president for cause. The panel held that this violated the separation of powers and its opinion stated that "Congress insulated the FHFA to the point where the Executive Branch cannot control the FHFA or hold it accountable." The panel consisted of Chief Judge Carl Stewart and Judges Catharina Haynes and Don Willett, who were appointed by Presidents Bill Clinton, George W. Bush, and Donald Trump, respectively.

The full Fifth Circuit ruled 9-7 on September 6 to affirm the panel’s conclusion that the structure of the FHFA was unconstitutional. It held that the FHFA for-cause removal structure “limits the President’s removal power and does not fit within the recognized exception for independent agencies.” The U.S. Supreme Court established an exception for agencies led by multi-member boards in the 1935 case Humphrey’s Executor v. United States. The Fifth Circuit held that precedent does not support removal protections for agencies led by single directors like the FHFA. The nine-judge majority consisted of Judge Willett joined by Reagan appointees Edith Jones and Jerry Smith; George W. Bush appointees Priscilla Owen and Jennifer Elrod; and Trump appointees James C. Ho, Kyle Duncan, Kurt Engelhardt, and Andrew Oldham. The seven dissenting judges were Chief Judge Stewart; Clinton appointee James Dennis; George W. Bush appointees Leslie Southwick and Catharina Haynes; and Obama appointees James Graves, Stephen Higginson, and Gregg Costa.

Like many people, I sometimes lose track of what month we’re in as I’m rushing around doing day-to-day stuff. It’s been pretty warm here in the northeast the past few weeks, so it’s been easy to forget that it’s September. 

Because I’m so interested in politics, I do know notice it’s getting close to November when I see signs that Election Day is right around the corner. It’s about 45 days away, so we’re not too far away. 

How about you? Have you noticed active campaigning (billboards, yard signs, radio or television advertisements) about the 2019 (or 2020!) elections in your area?

• A. Yes→
• B. No→

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