DA ROSA: Legislative Authority Over Drugs

By Art Da Rosa

In my class, I like to ask students a simple question: what’s the first word in the US Constitution after the Preamble? Most guess wrong. Look it up yourself — it’s “All.” The full sentence: “All legislative Powers herein granted shall be vested in a Congress of the United States.” Not most. Not some, subject to popular override whenever enough signatures can be gathered. All.

That’s a sound design. Concentrating lawmaking in one elected, deliberative body allows for proposal, debate, committee hearings, amendment, and revision before a change becomes permanent — exactly the process a single up-or-down ballot vote skips entirely.

One clarification worth making plainly, since it matters for everything that follows: Article I, Section 1 binds Congress specifically. It says nothing about how states must organize their own lawmaking, and Idaho breaks no federal rule by allowing citizen initiatives. But the founding generation’s actual practice was broader than that one clause. Every state government in 1788, not just the federal one, vested all lawmaking in an elected legislature. Direct democracy didn’t exist anywhere in the country. It’s a later addition to American government, not the original design, state or federal.

How HJR 4 Came About

This November, Idaho voters face House Joint Resolution 4 (HJR 4) — an amendment that would grant the Legislature exclusive authority over marijuana, narcotics, and psychoactive substances, closing the initiative process off for that entire subject permanently. Earlier this year, two competing marijuana-legalization initiatives were proposed… none received the necessary signatures to put them on this November ballot. But they could have. And what a confusion it would be. Recognizing that voters might legalize marijuana directly if left to decide for themselves, the Legislature moved first: pass the amendment, and no initiative on this subject reaches a vote again, this year or any year after.

Who Actually Uses the Initiative

In a state with genuine two-party competition, the initiative might function as an occasional pressure-relief valve, used by whichever side loses a given legislative fight. Idaho isn’t that kind of state. It has a Republican trifecta — the governorship and supermajorities in both legislative chambers — and has for years. That matters for understanding what the initiative process has actually become here: not a neutral tool available equally to all sides, but close to the only remaining tool available to whichever side cannot win a vote in the Statehouse at all.

Look at what Idaho’s highest-profile initiatives of the last decade have in common. In 2018, after years in which the Republican legislature declined to expand Medicaid, voters passed Medicaid expansion directly, by initiative. This cycle, the same pattern shows up twice more: the marijuana legalization measures and Proposition 1’s rewrite of abortion law, both organized outside the Statehouse by coalitions that could never get a hearing inside it.

None of this makes the initiative process illegal. It’s codified in Article III of the Idaho Constitution, and using it isn’t subverting anyone’s will. It does mean the tool functions, in practice, as the way the political minority bypasses a legislature that will never bring its preferred questions to a vote. That’s worth naming plainly, without pretending it’s neutral or pretending it’s illegitimate.

HJR 4’s Selective Memory

Set marijuana policy itself aside for a moment and look only at the structure of what the Legislature is doing. HJR 4 invokes the exact principle this piece opened with — that lawmaking power belongs in one elected, deliberative body — and writes it permanently into the state constitution. But it does so for exactly one subject, at exactly the moment that subject threatens to be decided against the Legislature’s wishes by initiative, while leaving every other subject, including a wholesale rewrite of the state’s approach to abortion law, fully open to the same process it’s foreclosing here.

That’s not a principled application of “all legislative power belongs to the legislature.” It’s a convenient one — invoked when it protects the majority’s current preferences, ignored everywhere the majority doesn’t feel threatened. I like the underlying principle. I don’t like watching it get reached for only when it’s politically useful. If concentrating lawmaking authority in an elected, deliberative body really is the sounder design — the founding generation’s near-universal choice — then it’s sounder for every subject a legislature might face, not just the one currently on the ballot against this Legislature’s wishes.

Conclusion

This is where the argument has to be applied consistently or not at all. The founding design, federal and state alike, concentrated lawmaking in elected bodies because that structure allows hearings, amendment, and revision before a change becomes permanent. Idaho’s initiative process is a Progressive-era addition to that design, not a restoration of it, and in a one-party state it functions almost entirely as a way for whichever side lacks power in the Statehouse to make sweeping changes in a single vote — no committee process, no chance to fix a flawed clause before it becomes binding. That’s the pattern behind Medicaid expansion, the marijuana initiatives, and Prop 1 alike.

If that pattern is worth correcting for drug policy — and HJR 4’s sponsors clearly believe it is — it’s at least as worth correcting for a rewrite of Idaho’s entire approach to abortion law, arguably more so, given how much more consequential and legally complicated that rewrite is than anything HJR 4 addresses. The honest, consistent position isn’t “initiatives are fine for the issues I don’t care about and illegitimate for the ones I do.” It’s that major, hard-to-reverse changes to Idaho law deserve the deliberative process only a legislature can provide, regardless of which side currently finds the initiative route more convenient. Idahoans who find HJR 4’s logic persuasive should find it just as persuasive applied to Proposition 1 — and vote no, not because of who is proposing the change, but because of how it’s being made.

About Art da Rosa

Art da Rosa is a licensed Professional Engineer (PE) in Idaho and California. He is a former candidate for Jefferson County Commissioner and writes at DAROSA Patriots Corner on Facebook.

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