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5 Potential Scenarios for D.C.’s Marijuana Initiative

The DEA could be a buzzkill for D.C.'s legalization measure. (Tom Williams/CQ Roll Call File Photo)
The DEA could be a buzzkill for D.C.'s legalization measure. (Tom Williams/CQ Roll Call File Photo)

The ongoing battle over the District of Columbia’s marijuana policy is currently at a standstill, but several scenarios over the coming weeks could alter its fate.  

In November, 70 percent of D.C. voters approved Initiative 71, legalizing the possession and cultivation of small amounts of marijuana. But Congress moved to block the initiative by attaching a rider to the year-end spending package barring federal and local funds from being used “to enact any law, rule, or regulation to legalize or reduce penalties associated with the possession, use or distribution.” D.C. officials are arguing the rider blocks enacting any further changes to marijuana policy, but say the city can carry out the initiative because it was technically enacted before the spending package was signed into law. Republicans, especially Maryland Rep. Andy Harris, who was a champion of the rider, disagree. They say if D.C. moves ahead with the initiative, the city will be breaking the law.  

With the disagreement setting the stage for a legal standoff, could the District’s marijuana legalization initiative go up in smoke? Here are five things that could happen next:  

1. Congress Disapproves Under the Home Rule Act, the D.C. Council must transmit any city-enacted legislation to Congress for a 30-day review period. During that time, if a joint resolution of disapproval passes both chambers and is signed by the president, the legislation cannot take effect. Despite confusion over how the policy rider affected the marijuana initiative, D.C. Council Chairman Phil Mendelson transmitted the initiative on Jan. 13, starting the clock on the review period. But it does not appear that Congress is considering a joint resolution to nix the initiative. House Oversight and Government Reform Chairman Jason Chaffetz, R-Utah, dismissed the possibility of a disapproval resolution, arguing that Congress does not have to respond to the transmittal since Congress already blocked the initiative with the policy rider.  

Other Republicans don’t appear to be angling for a disapproval resolution. “I can maybe see holding a hearing on it. I haven’t really even looked at D.C. as much,” said Sen. Ron Johnson, R-Wis., who chairs the Senate committee with jurisdiction over D.C. “Right now, I’ve got far higher priorities: how to secure our borders, how to keep our nation safe.”  

Michael Collins of the Drug Policy Alliance, who has been making the rounds to GOP offices to gauge response to the initiative, also said in a phone interview this is not a major issue for Republicans. “Most have them have said, ‘for Republicans to take this hardline anti-marijuana position and to have a vote on D.C. is very shortsighted,'” Collins said, adding, “and not something we should be doing at the beginning of the new Congress.”  

2. Congress Passively Approves If Congress does not pass a joint resolution of disapproval by Feb. 26 (the date the D.C. Council set for the end of the review period), D.C. officials will move ahead with the initiative.  

“The changes to our local criminal code that the voters made will become District law once the congressional review period has expired, absent the passage and signing of a disapproval resolution,” D.C. Attorney General spokesman Robert Marus wrote in an email Tuesday. Metropolitan Police Department spokesperson Gwendolyn Crump also confirmed in an email that the initiative will become law absent congressional action.  

3. Congress Sues D.C. One option for Congress if it wants to block D.C.’s marijuana initiative after it takes effect is a lawsuit against the District government. According to House rules, the speaker can direct the Office of the General Counsel to participate in litigation, in consultation with the Bipartisan Legal Advisory Group, which includes the speaker; the majority and minority leaders; and the majority and minority whips. But Speaker John A. Boehner, R-Ohio, is not likely to become entangled in legal action against the District’s marijuana initiative. After a meeting with Boehner, D.C. Mayor Muriel Bowser said they discussed the marijuana initiative, but the speaker prefers to focus on national issues.  

4. An Individual Sues D.C. If Congress does not sue the District, an individual member or citizen could attempt to file a lawsuit, though it is not clear whether an individual lawsuit would have standing in court. The most likely member of Congress to take legal action would be Harris, who worked to block the initiative. But he dismissed the possibility he would sue D.C. during a brief interview in the Speaker’s Lobby Tuesday. “I’m not planning anything,” Harris said. “Look, their violation is not against me, it’s against an act of Congress.”  

Harris said he did not know what appropriate legal action should be taken, emphasizing several times he is not a lawyer, but he said there should be some response if the District moves forward with the initiative. “I think anyone who violates the law should have the penalty of it. This is a serious law,” Harris noted. “Bottom line is, I would hope that the District is held liable for the harm they’re going to do to thousands of teenagers in the District.”  

5. D.C. Charged With Anti-Deficiency Act Violation Harris said one of the potential charges could include a violation of the Anti-Deficiency Act, which prohibits the D.C. government from spending money Congress has not appropriated. According to the Government Accountability Office website, a member of Congress or a congressional committee can request the GAO to develop a legal opinion regarding a potential ADA violation. If the GAO finds a violation, D.C. would submit a report to Congress and the president explaining the violation and why it disagrees with the charge.  

The GAO does not have an enforcement capability, though. A source with the GAO said it would be up to Congress to hold D.C. accountable. If the GAO finds D.C. knowingly and willingly violated the ADA, the violation would be criminal, and the case would be referred to the Department of Justice. But it is uncertain whether the department would be willing to prosecute the District in this case, especially considering that the president opposed the rider aimed at the marijuana initiative.  


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