The legislation, S.54, which passed the Senate in March, would give lawmakers the power to appoint two of the three members on the new regulatory panel called the Cannabis Control Board.
The governor would appoint the chair of the board, which is tasked with licensing and overseeing cannabis dispensaries, cultivators and testing facilities.
But the governor’s general counsel, Jaye Pershing Johnson, said she believes governors should be able to appoint all of the board’s members, as they have the power to do with other regulatory bodies at the executive level including the Board of Liquor and Lottery.
After she addressed the House Government Operations committee, Johnson said in an interview that lawmakers don’t have the authority to “both enact the laws and enforce the laws.”
“When the Legislature decides they will both create the laws and structure the entities in such a way so as to divest the governor of his constitutional duty, that’s where I say that there’s a separation of powers concern,” she said.
The Vermont Attorney General’s Office and the Legislature’s legal counsel disputed Johnson’s argument, and said that giving legislators the ability to make more appointments than the governor does not violate the Constitution.
“The Vermont Constitution does not state that an Executive Branch entity cannot be comprised of a majority of legislative appointees; this issue is not addressed in our Constitution,” Betsyann Wrask, an attorney with the office of Legislative Council, wrote.
Assistant Attorney General David Scherr said that Vermont Supreme Court has yet to weigh in on the issue of legislative appointments to executive bodies.
Based on court rulings on the matter in other states, his office believes Vermont’s highest court would not find the proposed makeup of the Cannabis Control Board in violation of the Constitution.
“Unlike in the federal Constitution, the state constitutions give their legislatures greater authority to make appointments and they have a more flexible view of when there’s encroachment or usurpation of another branch’s authority,” Scherr said.
After hearing from legislative counsel, and the attorney general’s office, Democratic lawmakers on the panel signaled they wouldn’t give the governor more influence on the board.
“I would be concerned about making a compromise and giving up more legislative power that we clearly have under the Vermont Constitution,” said Rep. John Gannon, D-Wilmington, vice chair of Government Operations.
The committee is considering expanding the panel from three members to five members, but the new structure they’ve proposed wouldn’t give the governor more power: the House, Senate, treasurer and attorney general would each appoint one member, with the governor selecting the chair.
But some raised concerns about advancing a bill that the governor would likely veto. In the past, Scott has struck down legislation over separations of powers concerns.
Last year he vetoed a bill establishing a panel to eliminate systemic racism in state government because he believed it contained an “unconstitutional” provision that limited his ability to fire the body’s executive director.
The provision would have required the panel to approve his decision to fire the executive director before they were terminated.
Lawmakers ultimately sent Scott another version of the bill, without this provision, to win his signature.
Rep. Jim Harrison, R-Chittenden, tried to strike a compromise, and proposed giving the governor three appointments on a five-member Cannabis Control Board. But the committee struck down his plan overwhelmingly.
“We can be high on principle and not get a bill done,” Harrison said. “I’m trying to help you get to a finish line.”
The governor told reporters Thursday, that he believed the legislation needed to grant him more control over the Cannabis Control Board, if it’s going to be housed in the executive branch.
“If they want it under the control of the governor or the administration, then they’d better allow the governor or the administration to have some authority,” Scott said.