Legalizing pot in the nation’s capital is a historic moment. And not just because it was the first place where racially disparate policing was the central campaign issue. By making recreational pot legal in the city over which Congress retains extraordinary control, the city has forced the issue back onto the national stage, where at least a few lawmakers are sure to mount every bit of resistance they have to marijuana reform.
It also throws into sharp relief the District of Columbia’s second-class status as a jurisdiction with neither the voting power nor the independence of a state.
The District is ready for the fight. Rep. Eleanor Holmes Norton (D) issued a statement after the vote warning, “opponents who meddle with D.C.’s new marijuana legalization law will get the fight of their lives” — although Norton doesn’t have full voting power in Congress as a representative of the District of Columbia, while her opponents from actual states do. Here’s what she and others can expect going forward.
Lawmakers Will Threaten To Block The Law
Among the first in line to make a federal case out of D.C.’s marijuana initiative will be Rep. Andy Harris (R-Md.), a congressman ranked by Drug Policy Action as one of three “2014 Drug Policy Extremists,” who warned even before the ballot initiative’s passage that, “If legalization passes, I will consider using all resources available to a member of Congress to stop this action.”
Those resources are not insignificant. Because the District of Columbia is not a state, Congress retains the power to block any legislation passed by the District of Columbia within a window of between 30 and 60 working days after the legislation is passed. It also controls the District’s budget, and thus can use a back-door mechanism for blocking legislation by attaching a budget amendment to defund a program.
Congress is encouraged not to exercise this power except in extraordinary circumstances under the Home Rule Act of 1973, and to otherwise treat the District of Columbia like a state. But that hasn’t stopped lawmakers from selectively blocking D.C. laws on political wedge issues as a means of taking a stand on what would otherwise be a local issue.
For 11 years, Congress used this tactic to prevent the implementation of a medical marijuana law passed by D.C. voters in 1998. They’ve taken similar measures to block gun and abortion laws. And even when lawmakers haven’t successfully blocked D.C. laws, they can coerce local lawmakers with the threat of doing so.
Last year, when D.C. decriminalized marijuana, the House took steps to once again exercise that power at Harris’ initiation. Ultimately while a rider to an appropriations bill was passed by the House, it died in the Senate after President Obama threatened to veto it. Obama might be likely to veto such an amendment once again, although it’s not clear how much leverage he will retain to block a budget amendment, with both houses of Congress still in Republican hands.
Still pot increasingly has as many Republican allies as it does enemies. So they may not have the votes to block the law.
Even If They Can’t Block The Law, Lawmakers Will Take The Opportunity To Grandstand
Last year, as several states were passing measures to ease punishments for marijuana, the U.S. House Oversight Committee held a series of at least five hearings entitled “Mixed Signals: The Administration’s Policy On Marijuana,” during which they called witnesses whom lawmakers could grill about the harms of marijuana. The third of these hearings focused specifically on D.C.’s decriminalization law. As explained above, lawmakers ultimately did not succeed in blocking D.C.’s decriminalization law. But that was besides the point for lawmakers who wanted to make their opinions known.
As Rep. John Fleming (R-LA) put it when asked why he was opposing Washington, D.C.’s decriminalization law, “This is the only place I have a say.”
Rep. John Mica (R-FL) joked about his staff knowing how to roll a joint as he presided over the hearing, while lording Congress’ veto power over the District, and warning that the decriminalization law could have “very serious implications” because it conflicts with federal marijuana law. No one other than those representing the interests of D.C. took up the issue that has been at the center of D.C. marijuana reform: racially disproportionate arrests.
On another occasion during a Department of Justice oversight hearing, Rep. Jeff Sessions (R-AL) used his allotted time for questions to tell U.S. Attorney General Eric Holder that there are some studies saying marijuana is bad for kids, and that even Lady Gaga has said the drug is harmful.
Members of Congress are unlikely to miss the opportunity to grandstand on these issues again, even if they never have a chance at blocking the law.
The City Has Its Own Obstacles To Regulating Pot
Even if Congress doesn’t directly block I-71, don’t expect to be buying pot from a dispensary anytime soon. There are a lot of other obstacles before Washington, D.C. has a tax and regulate system like that in Colorado. First, D.C. law does not allow the jurisdiction to appropriate funds via ballot initiative. So while the initiative has been billed as recreational legalization, it does not include any provisions on selling, buying, or taxing marijuana in the state. That will be left to councilmembers and the mayor, who have committed to pass a law if the ballot initiative passes.
But it is completely unknown how long that will take or what it would look like. In the meantime, Councilman David Grosso (D) has suggested the City Council may put on hold even the provision’s existing measures that permit possession of up to two ounces and home growing of several plants.
After that, the Council will face the prolonged, difficult task of figuring out just how to regulate.