Gov. Carney is still mum on legal weed in Delaware — but it could become law anyway

It’s been nearly two weeks since the Delaware General Assembly passed two bills that would legalize marijuana in the state, but Gov. John Carney has yet to sign either.

House Bill 1 and House Bill 2, passed in the state Senate on March 28, legalize the possession of marijuana by adults, and create a legal framework for commercial growing and sales. Carney has yet to act on either bill, with many expecting a veto from the governor, who blocked similar legislation last year.

But according to the Delaware state constitution, the governor has 10 days from receiving a bill — not counting Sundays — to either sign or veto the legislation, after which it becomes law by default.

As of Wednesday, it has been 13 days since the Delaware’s marijuana legalization bills were passed, not including Sundays. But that doesn’t mean Delaware has officially legalized marijuana yet.

Here is what you need to know:

It’s unclear.

Emily Hershman, Carney’s director of communications, declined to comment. Rep. Ed Osienski (D., Newark), the primary sponsor of the bills, did not respond to a request for comment.

Because it’s not clear when, or even if, Carney’s office received House Bill 1 and House Bill 2, we don’t know where the 10-day timeline for them automatically becoming law stands. Both bills are listed as “ready for governor action” online.

Some bills this session, though, have seen speedier action from Carney. For example, Carney signed a bill that kept Delaware residents from having to pay federal taxes on Delaware relief rebate checks the day after it passed the Senate. And he signed another that gave post-pandemic relief to residents receiving unemployment benefits, the day it passed the Senate.

But there is no timetable for bills to reach the governor’s desk, and they aren’t automatically sent there after passing, said Shannon Keith, spokesperson for the Delaware House Democratic Majority.

“They might sit with the legislature for days, weeks or even sometimes months,” Keith said. “The two weeks these bills have sat is not out of the ordinary.”

We don’t know.

Carney hasn’t publicly commented on what he’ll do, but following the bills’ passage last month, his office issued a statement saying that he remains concerned about marijuana legalization in Delaware.

“The governor continues to have strong concerns about the unintended consequences of legalizing marijuana for recreational use in our state, especially about the impacts on our young people and highway safety,” Hershman told The Inquirer last month. “He knows others have honest disagreements on the issue. But we don’t have anything new to share today about how the governor will act.”

Carney did, however, veto similar legalization last year. Lawmakers ultimately failed to overturn that veto, but may have a better chance of doing so this year, if it comes down to that.

The House passed the bills with a two-thirds super-majority, and could override any potential veto with a 3/5 majority in both chambers. Osienski said last month that he was “optimistic” about overturning one.

“I think my colleagues are saying, ‘OK, you know, you had one shot at vetoing this, you did and you were successful, but don’t count on us supporting that veto again,” Osienski said.

The Delaware Constitution says that “if any bill shall not be returned by the Governor within ten days, Sundays excepted, after it shall have been presented to him or her,” it will be become law as if the governor signed it.

“Presented to him or her” is the key phrase here.

“The 10-day rule doesn’t apply until the bills are sent to the governor,” Keith said.

House Bill 1 legalizes possession of up to one ounce of marijuana for adults 21 and older (as well as equivalent amounts in other forms, such as concentrates and edibles). Underage possession would result in fines, and both public marijuana use and growing marijuana for personal use would remain illegal.

House Bill 2, or the Delaware Marijuana Control Act, creates a regulatory framework for a legal adult-use marijuana industry. As part of that legislation, as many as 30 retailers would be allowed, and a 15% tax on sales would be instituted in a system that the bill’s synopsis compares to alcohol sales.

If they become law, the bills would expand Delaware’s marijuana market significantly. The state legalized medical marijuana in 2011, and began sales in 2015. That same year, the state decriminalized marijuana, and later expanded the law to include people under 21.