In early 2013, the nation was reeling from the tragic shooting at Sandy Hook Elementary in Newtown, Connecticut. Just 11 days before Christmas, Adam Lanza killed his mother, and then proceeded to the school, where he shot and killed 27 students and faculty. Two others were wounded.
It was the 15th time more than four people had been killed in a shooting under President Barack Obama’s watch and it visually affected him. From 2009 through to that day, mass shooting in the U.S. had produced 139 casualties. 185 more would be added to that list during his tenure.
“As a country, we have been through this too many times,” Obama said at the time. “We’re going to have to come together and take meaningful action to prevent more tragedies like this — regardless of the politics.”
A month later, he signed 23 executive orders addressing gun safety.
The National Rifle Association went on offense, deflecting the issue of the school shootings and alleging that Obama’s actions were part of an “ongoing attempt to distract attention away from his lack of a coherent strategy to keep the American people safe from terrorist attack.”
Then-Speaker of the Alaska State House, Mike Chenault (R-Nikiski), was watching.
Alaskans own a lot of guns — they can be found in over 60 percent of homes, according to the Violence Policy Center. The NRA and other sports-and-gun advocacy groups have a lot of political clout too, and can make or break and election.
Except, it wasn’t a gun rights bill. It was a nullification bill.
In a House majority press availability the day after introducing HB69, Chenault fielded a question from The Juneau Empire’s Mark Miller, who pressed him on the distinction. He noted that the president has the right to issue executive orders, and that state legislators don’t have a right to nullify the federal government.
As I wrote at the time,
If the proposal were to become law, anything the federal government does regarding the possession or acquisition of a firearm would be ruled invalid by the state of Alaska. Any federal agent attempting to enforce laws enacted by the federal government of the United States would be subject to arrest.
And the Alaska GOP knew they had a problem.
Coghill to the rescue
Democrats split on the bill three ways. Some supported the measure (now-House Majority Leader Chris Tuck, D-Anchorage, was a cosponsor). Others, most vocally Rep. Les Gara (D-Anchorage) opposed it, fearing its potential to jeopardize the safety of state law enforcement, who would be tasked with arresting federal agents attempting to enforce federal laws. Others failed to say anything or even vote on the measure.
Republicans were backed into a corner. Despite clear constitutional issues — noted repeatedly by legislative legal counsel under Republican Governor Sean Parnell — prominent members had signed on as cosponsors. A majority of GOP members (and several Democrats) in the House voted for the measure, as originally written, sending it to the Senate.
In the upper chamber, a new rewrite of the bill emerged, penned by then-Senate Majority Leader John Coghill (R-North Pole).
Coghill’s Senate Bill 75 sounded very similar to Chenault’s HB69, but with a key distinction: Gone was the part about illegally and unconstitutionally requiring for state officials to arrest federal authorities attempting to enforce federal laws. In its place was a much more laissez-faire approach that prohibited state officials from assisting federal agents in the event they attempted to enforce federal laws pertaining to gun control efforts.
It was clever. More importantly, it was constitutional and legal.
SB75 specified that a “state agency may not use or authorize the use of a state asset to implement or aid in the implementation of a requirement of an order of the President of the United States,” or any federal law that Congress might pass if it “[infringed] on a person’s right… to keep and bear arms….” The proposal went on to specify that the state also could not use any resources to assist in denying “a person a right to due process” under both the United States and Alaska State Constitution.
“In other words, the state would tell FBI agents to go right ahead enforcing a new law restricting firearms. But state officers can’t help,” I noted at the time. “Not with arrests, detainment facilities, technology – don’t even ask to borrow our cell phone.”
When HB69 arrived in the Senate Judiciary Committee on April 3, 2013, it was HB69 in name only. The criminal penalties for federal authorities had been removed and the language of SB75 inserted in their steed.
The new version sailed through the Senate and passed 17-3, picking up the votes of Democrats Denis Egan (D-Juneau) and Bill Wielechowski (D-Anchorage). The House concurrence vote on the new version, similarly, went 34-5, padded by Democratic representatives Max Gruenberg (D-Anchorage), Scott Kawasaki (D-Fairbanks), and Geran Tarr (D-Anchorage).
House Republicans wore coordinated camo scarves to mark the occasion.
The bill would have passed as first written by Chenault. Parnell said, before the edits, that he would sign it into law. But Coghill’s guile made it lawful. It made it sticky.
Now, with a new president and new set of concerns, one state on the west coast is looking to employ a similar strategy.
Attorney General Jeff Sessions likes marijuana less than the KKK
Last year’s election changed the landscape in terms of where recreational marijuana is legal. Alaska, Washington, Oregon, Maine, Massachusetts, Colorado, Nevada, California, and Washington D.C. now have (or will soon) a marijuana industry. 28 states, to varying degrees, have legalized medical marijuana access.
Over five million people now live in states where recreational use of marijuana is legal under state law.
The “green rush” that ensued has depended entirely on the federal government’s choice to look away. Marijuana is still outlawed, federally, under the Controlled Substances Act — meaning that state-legality can be negated by federal enforcement on a dime if a new administration chooses to pursue those ends.
Enter President Donald Trump’s Attorney General, Jeff Sessions — a conservative senator hailing from Alabama.
“His former colleagues testified Sessions used the n-word and joked about the Ku Klux Klan, saying he thought they were ‘okay, until he learned that they smoked marijuana,’” The Washington Post reminded readers, ahead of his successful confirmation hearing last month.
In April, he said, “Good people don’t smoke marijuana,” and that it was a “very real danger” that is “not the kind of thing that ought to be legalized.” Sessions… has called marijuana reform a “tragic mistake” and criticized FBI Director James Comey and Attorneys General Eric Holder and Loretta Lynch for not vigorously enforcing a the federal prohibition that President Obama has called “untenable over the long term.” In a floor speech earlier this year, Senator Sessions said: “You can’t have the President of the United States of America talking about marijuana like it is no different than taking a drink… It is different….It is already causing a disturbance in the states that have made it legal.”
“With little more than the stroke of his own pen, the new attorney general will be able to arrest growers, retailers and users, defying the will of more than half the nation’s voters,” James Higdon wrote in the same article. He said that such action could “cause chaos in a $6.7 billion industry that is already attracting major investment from Wall Street hedge funds and expected to hit $21.8 billion by 2020.”
From Coghill to California and guns to weed
California legalized recreational use of marijuana this past November, via Proposition 64. Similar to legalization in Alaska, they now have a year to implement rules and regulations in time for business licenses, which must begin issuance in 2018. The Golden State will enter the market under Sessions as AG.
Reginald Byron Jones-Sawyer, Sr. is a member of the California State Assembly, where he has served Los Angeles since 2012. In 2015, he sponsored Assembly Bill 266, which codified the regulatory oversight of the cultivation, manufacture, transportation, storage distribution, and sale of medical marijuana. The measure was signed into law in 2015 by Governor Jerry Brown (D-California).
On Friday, Jones-Sawyer took a page out of Coghill’s playbook, introducing AB 1578, titled “Marijuana and cannabis programs: cooperation with federal authorities.”
See if this sounds familiar.
A state or local agency shall not do any of the following without a court order signed by a judge:
(1) Use agency money, facilities, property, equipment, or personnel to assist a federal agency to investigate, detain, detect, report, or arrest a person for commercial or noncommercial marijuana or medical cannabis activity that is authorized by law in the State of California.
(2) Respond to a request made by a federal agency for personal information about an individual who is authorized to possess, cultivate, transport, manufacture, sell, or possess for sale marijuana or marijuana products or medical cannabis or medical cannabis products, if that request is made for the purpose of investigating or enforcing federal marijuana law.
(3) Provide information about a person who has applied for or received a license to engage in commercial marijuana or commercial medical cannabis activity pursuant to [Medical Cannabis Regulation and Safety Act] or [Control, Regulate and Tax Adult Use Marijuana Act].
(4) Transfer an individual to federal law enforcement authorities for purposes of marijuana enforcement or detain an individual at the request of federal law enforcement for conduct that is legal under state law.
With the confirmation of Sessions, the newly burgeoning marijuana industry in Alaska, and the successful strategy — first employed by Coghill and now being used in California to protect their fledgling marijuana industry — one wonders if a similar bill might be introduced this session in the 49th State.
In the first month of operation, Alaska growers added $10,400 to state coffers.
“This was the first delivery to the first couple of stores that happened to be open during the month of October,” DOR Tax Revenue Director Ken Alper told Alaska Dispatch News in December. “We’re going to obviously see an upward trend.”
In times when the State is enduring record breaking budget deficits, every dime counts. And in an oil state that ramps up campaign rhetoric every two years declaring that we need to diversify our economy, protecting our newest revenue stream seems of notable import. This might be an avenue of legislation worth pursuing.
Everyone can wear neat, green scarves in celebration.