OPINION: Kentucky's governor could legalize medical marijuana with 'a game of constitutional chicken,' advocate writes

By Jim Higdon

Gov. Andy Beshear is the first governor in the history of Kentucky to call for legalizing cannabis. Following the failure of the Kentucky legislature to pass a medical marijuana bill last month, the governor has asked the public for input on what he can do by executive order. It’s about time that political leaders in Kentucky prioritize this issue to legalize cannabis.

The vast majority of Kentuckians agree with Gov. Beshear that medical marijuana should be legal in Kentucky, including a majority of Republicans. However, among the minority that disagrees with him is Senate President Robert Stivers, who single-handedly denied the opportunity to vote on this issue before the end of the legislative session, after the bill had passed the House for a second time.

Sen. Stivers responded quickly to Gov. Beshear’s call for ideas on executive action, saying in a statement that the governor "simply can’t legalize medical marijuana by executive order … because it’s a constitutional separation of powers violation."

Sen. Stivers was wrong to deny a floor vote on medical marijuana when so many Kentuckians are desperate for it, but he’s correct that the governor lacks authority to create a functioning medical marijuana program on his own under the Kentucky Constitution. That’s the legislature’s job, even when they refuse to do it.

Jim Higdon

Kentucky is one of 13 states without legal access to medical marijuana. That number will continue to drop this year as more states join the modern world, despite the lingering federal prohibition still in place.

By the end of this year, Kentucky will most likely be on a list of fewer than 10 states without legal medical marijuana – which will only add to the stigma that Kentucky is 20 years behind every other state. For reference, California legalized medicinal cannabis in 1996, more than 25 years ago.

What can the governor do to change this narrative? According to the Kentucky Constitution, there’s quite a bit he can do to lead Kentucky in the right direction, even when the legislature refuses to do its job.

Under Section 75 of the Kentucky Constitution, written in 1891, the governor is commander-in-chief of the army, navy and militia. In present-day terms, that means the governor is in charge of the Kentucky National Guard and the Kentucky State Police. These two agencies spend untold hours flying above Kentucky in helicopters for the sole purpose of eradicating illegal cannabis crops.

The governor has the power under the constitution to ground these helicopter missions until further notice. Anti-cannabis helicopters are an extraordinary waste of taxpayer resources and a use of military hardware against our own citizens. They should end immediately.

Under Section 77 of the Kentucky Constitution, the governor has the power to grant pardons. Gov. Beshear should use this constitutional power to pardon every person convicted of marijuana crimes under Kentucky law. Whether for possession, trafficking, or cultivation, Gov. Beshear should pardon all Kentuckians with marijuana felonies on their records. With the stroke of a pen, the governor would signal a new era.

And under Section 80 of the constitution, the governor has the power to call a special session of the legislature. Under normal circumstances, there’s an agreement between the governor and legislative leaders about the need for a special session before the governor calls for it. Otherwise, legislators can come to Frankfort, gavel in, and then immediately gavel out and go home.

In other words, the governor can lead a legislature to session, but he can’t make them work. In ordinary times, this would make a governor look weak and wasteful of government resources if legislators came to Frankfort only to turn around and immediately return home. But these are not ordinary times. If legislative leaders come to Frankfort for a special session called by the governor to consider medical marijuana but then gavel out without considering a bill, who is the loser? Which side looks weak?

To maximize the impact, the governor should call this special session as close to the general election as possible. Call the legislature into session in mid-October and dare Republican leadership to deny a vote on medical marijuana just weeks before Election Day.

It’s a game of constitutional chicken that the governor can win.

Jim Higdon of Louisville is co-founder of Cornbread Hemp and author of The Cornbread Mafia, the first book about Central Kentucky's marijuana-growing industry. He is a native of Lebanon, Ky.