D.C. Congress and Confusion Surrounding Initiative 71

There was blood on the streets of Washington, D.C. after Uncle Sam dropped the axe of prohibition and severed the head of a voter approved initiative to legalize recreational marijuana in the nation’s capital. Congressional cronies seemed to put the kibosh on Initiative 71, which legalized recreational cannabis in D.C., by attaching slippery rider to a trillion dollar spending bill that outlaws the use of funds to support laws associated with the possession, use or distribution of any Schedule I controlled substance. However, which each passing day since this bad news hit, there has been wad of controversy piling up that questions whether the elusive rider has any clout at all.

The choke hold responsible for snuffing out the progressive efforts of marijuana reform in the District is the result of a bill introduced earlier this year by Maryland Representative Andy Harris, which prohibits the use of federal and local money to legalize recreational marijuana. The measure states that “none of the funds contained in this Act may be used to enact any law, rule, or regulation to legalize or otherwise reduce penalties associated with the possession, use, or distribution of any Schedule I substance.”

In an effort to cosign Harris’ power play, House Appropriations Committee Chairman Hal Rogers came forward and professed the rider undermined Initiative 71 even more by prohibiting “both federal and local funds from being used to implement a referendum legalizing recreational marijuana use in the District.”

Basically, what it comes down to is the meaning behind the words “enact” and “carry out,” which Eleanor Holmes Norton, D.C.’s hard-hitting delegate inside Congress, claims could determine whether it will be life or death for the recently approved initiative that legalized the possession, cultivation and transfer of marijuana in the District.

“D.C.’s Initiative 71, it can be argued, was enacted when it was approved overwhelmingly by voters in November and was self-executing – i.e., it did not require enactment of any rules for its implementation. Therefore, it can be argued that the legalization of small amounts of marijuana can proceed,” Norton said in a recent statement.

This verbiage translates into a potential conundrum for Harris and his comrades by not being able to prevent the passing of the initiative because it’s already a done deal — only if the rider would have been approved before the November election would it have any impact on Initiative 71.

However, in order for Initiative 71 to receive final approval, it’s required to go before Congress for a 60-day review process. There’s some question whether Harris’ rider eliminates the possibility of this taking place since it will necessitate the use of local funds to give the measure a fighting chance.

Yet, in drug policy expert Jacob Sullum’s article, he says this shouldn’t have any bearing on the Congressional review since there is a difference between “enacting” a law and “making it effective.” Essentially, a measure passed in 2014 might not become effective until 2015, but it was technically enacted the previous year. In consideration of this theory, Harris’ rider can only ban the enactment of Initiative 71, which is impossible since the measure was enacted by District voters weeks before the shit hit the fan on Capitol Hill.

Although it’s reasonable to suspect D.C. marijuana activists are simply looking for any reason to contest the lynching of democracy that appears to have taken place, Sullum seems to believe that Congresswoman Norton’s argument for keeping weed legal in the nation’s capital is one with a rigid backbone. The congressional review of all ballot initiatives, including those pertaining to legalizing marijuana, “shall take effect” following a review process unless a resolution of disapproval is enacted first, according to the District of Columbia Home Rule Act. This is where the situation gets exceptionally tricky. If Congress does pass a resolution to destroy Initiative 71 and the president gives his seal of approval, this action “repeals” the initiative, says Sullum. However, once again, this act is an impossible feat since a law that was never enacted cannot be repealed.

Yet, Harris is hell bent on stroking the language of the rider to imply it “prevents the ultimate enactment of the ballot initiative,” which Sullum says is a stretch. Now, it’s up to the District of Columbia Attorney General to sort it all out, which so far, has been a wait-and-see affair that has marijuana supporters in a state of anxious limbo.

“The Office of the D.C. Attorney General is continuing to actively review the legislation,” said a statement, “and will continue through the Senate legislative process and President’s signature on the budget bill to assess how it may provide District policymakers opportunities to implement the will of the people reflected in Initiative 71.”

To strengthen Norton’s theory, Bill Piper, the Drug Policy Alliances’ national affairs director, recently came forward to cosign her defense on this issue by stating that Initiative 71 is not dead with the passing of the rider simply because it was enacted in November.

“While Initiative 71 won’t take effect until after the Council transmits it to Congress in January and it goes through an administrative 30-day review period,” said Piper, “it has very clearly already been enacted by the voters.”

Even leading House members agree the passing of the D.C. rider cannot stop Initiative 71 from happening.

Considering these arguments, it appears that Initiative 71, which again, legalized the possession, cultivation, and transfer of marijuana in the District of Columbia, will be allowed to become law. Unfortunately, Harris’ rider kills any possibility of the District moving forward with their fast track efforts to establish a retail marijuana market by passing Council Member David Gross’s “Marijuana Legalization and Regulation Act of 2013.”

Retail cannabis commerce in the District will not happen – at least for the next year. Therefore, it appears the worst case scenario in regard to Harris’ rider is District residents will be forced to rely on home cultivation as a primary source for legal weed in D.C. – that is as long as Congress allows the initiative to pass following its review period.

Although President Obama says it’s imminent that he will sign the federal spending bill, he is not happy about the Congressional decision to block the District of Columbia from legalizing marijuana. A spokesperson for the president told The Associated Press that while Obama felt it was crucial to sign the budget to keep the government up and running through the end of next September, he believes Congress should respect the will of District voters.

What do you think about D.C. officials trying to repeal Initiative 71? Share your thoughts in the comments.