DC Legalization Battle Shows That Hard Fights Remain Amidst Legal Ambiguities

Last month, I wrote a post that was cautiously optimistic about what Congress might do with Washington D.C.’s Initiative 71, which legalizes marijuana for recreational use in the city. I thought that the otherwise power-hungry body would likely let D.C. slide despite it being its backyard, due to the seemingly indifferent attitude on the part of committee chairmen in charge of DC affairs. However, I underestimated the sway held by a small number of hysterical Congressional drug warriors, led by Rep. Andy Harris (R-Maryland), among their apathetic colleagues.

Rep. Harris, aided and abetted by appropriations chair Hal Rogers, the Kentucky legislator once known as the “Prince of Pork” in the heydays of earmark abuse who directed federal monies for marijuana eradication in his home state, successfully attached a rider to defund enactment of the legalization initiative in an omnibus spending bill which has been passed by both chambers and signed by Obama to avert a government shutdown. They even preemptively acted before the Congressional review process for DC laws started and instead used the funding route – meaning the District cannot spend money to enact the new law.

Now, there are some legal ambiguities here on what the “defunding” exactly means, since removing penalties on marijuana possession and sales does not require the government spending money (in fact it goes without saying legalization saves money). Rep. Harris wants to prevent DC from transmitting the bill to Congress, since in the world of Congressional legalese just pressing the “send” button on a computer is an act of spending. However, Rep. Harris’ interpretation of the rider’s legal implications differs from that of many of his colleagues, as they believe, contrary to Rep. Harris’ view, Initiative 71 has already been enacted, and transmittal does not count as a part of “enacting” something.

To the credit of elected leaders of the District, they have shown some spine on the issue and stood up to federal marijuana obstructionists. They are doing their best to push for the rational interpretation of the rider that is more favorable towards implementing Initiative 71. Acting on their commitment towards local autonomy, the DC City Council chair Phil Mendelson said he would transmit the new law to Congress anyways in spite of Rep Harris' proclamations.

It is currently unknown exactly how this D.C. marijuana turmoil will shake out. If Councilman Mendelson does transmit Initiative 71 to Congress, a frustrated Rep. Harris may bring the matter to the courts, where the judges would decide. If the transmittal is deemed successful without incident, then the prediction I made in my last post would stand – the apparent indifference on the part of the committee chairmen Reps. Johnson and Chaffetz may be just enough to allow the success of Initiative 71, and marijuana legalization would finally become the law of the land in our capital.

On a more positive note, the aforementioned omnibus spending bill also contains the Rohrabacher Amendment, a funding measure that would effectively end DEA raids on medical marijuana facilities in states where the plant is allowed for medical purposes. My colleague Shane wrote an eloquent blog post on it a few weeks back. When drug warriors like Rep. Harris can no longer go after the states, they grasp DC as a last straw and would not hesitate to use any tactic, no matter how reprehensible it may be, to stonewall much-needed reform efforts.

The feds are trying to send the message to state and localities other than DC that Congress will not give up on their futile war on drugs. They want to scare us into submission, and we must not let that happen. While Thomas Jefferson may not have uttered the exact phrase “the price of liberty is eternal vigilance,” it remains a self-evident truth that is more applicable today than ever before. When it comes to making sure that grassroots marijuana policy reform efforts are not be swept away by the powers-that-be from above, we can make the difference entirely. Check out our plan, put your foot on the gas pedal, and let's end the drug war once and for all!