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Legal Weed Is Expected to Pass in D.C.—How Many Ways Can Congress Interfere?

This Election Day brings another high-profile chance for District voters to have their voices ignored.

Peter Kim/Shutterstock.com

On Tuesday, voters in the nation's capital will consider a ballot measure that would legalize the recreational use of marijuana within city limits. Initiative No. 71 is expected to pass by a healthy margin. The vote is significant, not only because it would add D.C. to a growing list of American cities and states where people can light up without threat of criminal prosecution, but also because it would allow smokers to enjoy the sticky icky essentially under the noses of federal law enforcement agencies.

District stoners may need to wait to blaze in glory, however. The path to legalization includes a number of potential stumbling blocks. Some are similar to issues that arose in places where marijuana is now legal, like Colorado and Washington—questions about who can grow it, who can sell it, and how much money everyone involved will have to kick up to the tax man.

The D.C. measure would make it legal for a person 21 or older to possess up to two ounces of marijuana for personal use and to grow up to six cannabis plants. It would also allow people and businesses to sell paraphernalia and growing supplies, but not the drug itself. D.C. City Council members have already said they expect to take at least another year to roll out a system to tax and regulate what’s expected to be a $130 million a year recreational marijuana market. They’re likely to take a hard look at the implementation efforts in Washington and Colorado, where it took state authorities more than a year to establish a regulated weed market after voters moved to lift the ban on recreational cannabis in November 2012. (District lawmakers aren’t the only ones: voters in Oregon and Alaska will also decide this week whether to legalize pot.)

But unlike in other parts of the country, the effort to legalize marijuana in the District faces one other significant roadblock: The United States Congress. Though weed is technically still illegal under federal law, the Obama administration has been content to look the other way, allowing local authorities to decide whether to make the drug available for medical and recreational purposes and determine how to best regulate related activities. When it comes to the country’s only federal(ish) city, at least some lawmakers aren’t as chill.

In June, Rep. Andy Harris (R-Md.) successfully added an amendment to a D.C. spending measure that would block the city government from implementing a law passed earlier in the year that decriminalized the possession of up to one ounce of marijuana. The amendment, which passed in the House and is pending in the Senate, would prohibit D.C. from using money doled out to it by the federal government or generated by the city itself to implement the decriminalization bill, which made possession of cannabis subject to a $25 civil penalty.

It appears that Harris expects to take similar steps to thwart the legalization effort. “The federal government should enforce federal law regardless of whether local citizens try to legalize marijuana.” Harris says. “If legalization passes, I will consider using all resources available to a member of Congress to stop this action, so that drug use among teens does not increase."

Harris is a federal lawmaker who was elected to represent a district that covers part of Maryland’s Eastern Shore. If you’re asking why someone who doesn’t live in D.C. and doesn’t represent the city’s residents is going out of his way to keep weed away from Washingtonians who are expected to vote heavily in favor of legalization, you’re not alone.

“Representative Harris’s actions were the latest illustration of congressional disrespect toward the nearly 650,000 Americans who reside in the District of Columbia,” D.C. councilmember and mayoral candidate David Catania says. “With so many pressing national and international issues facing the country, it is hard to understand why Representative Harris has been focused so keenly on what is fundamentally a local issue.”

Whether it’s abortion, gun restrictions, needle exchanges, or building heights, the feds have long history of thinking they know what’s best for the District and its residents. Part of the reason politicians from Maryland to Kansas seem to relish exercising control over what would ordinarily be city government matters is simple: because they can.

The Constitution grants Congress exclusive jurisdiction over D.C., a power that has been interpreted broadly to mean that federal lawmakers can—if they so choose—essentially fill the role of city government. The feds wielded this authority in a variety of different ways until 1973, when President Richard Nixon signed the Home Rule Act into law. The legislation gave city residents the right to elect a mayor and 13 city council members, who in turn are authorized to pass various local laws.

But Congress retained significant control over the city, particularly with respect to how it spends money. Federal lawmakers have the right to review all city ordinances before they become law, and members of Congress usually get involved in D.C. government matters by attaching riders like Harris’ to appropriations bills. It took more than nine years for a medical marijuana law passed by the city council in 1998 to take effect, for example, thanks to a congressional budget amendment.

Councilmember David Grosso (D) was the sponsor of the marijuana decriminalization bill, which has since become law. He’s also behind a measure that would allow for the regulated sale of weed within city limits. Grosso says Congress has a knack for treating the District like a legislative "petri dish," where they can try out new ideas without any political risk. “The fact is, they know that they can do stuff like this with impunity because no one back home is going to notice,” Grosso says.

Even some of the most vocal critics of legalization don't want out-of-state lawmakers sticking their beaks in if the measure passes. Will Jones III is a fourth-generation Washingtonian and the chairman of Two is Enough D.C., an organization he created to oppose Initiative 71. “As an organization, we don’t have an official position on whether Congress should step in if the initiative passes,” Jones says. “There is a wide diversity of opinion among our supporters as to whether or not Congress should intervene.” Though Jones also said that federal inaction on the issue has helped legalization efforts to flourish, he maintained that the group doesn’t intend to ask Congress to take action in response to Tuesday’s vote. In fact, he said some members have told him that they would strongly oppose congressional intervention.

Meanwhile, Grosso says he thinks the legalization measure is safe from federal meddling—at least for now. Noting that Congress permitted the decriminalization bill to become law despite having the chance to review the measure first, Grosso says it appears that at least some federal lawmakers have bigger fish to fry. That said, he warns that it’s imperative to get the regulated-pot system up and running while Obama is still in the White House. Republicans are expected to retain control of the House in the upcoming midterm elections and are locked a near dead heat for the keys to the Senate.

Yet even if both the House and Senate passed a D.C. budget that blocked legalized weed, the legislation would still be subject to presidential veto. “My guess is that the President would protect us from any type of interference. But if Republicans take the Senate, who knows what will happen,” Grosso says.

Top image: Peter Kim / Shutterstock.com

About the Author

  • Chris Opfer is a writer and attorney in Washington, D.C. His work has appeared in New York Magazine, The Daily Beast, The Village Voice and Pacific Standard, among other publications.