DC Marijuana Legalization Is All About Timing

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Jonah Bennett Contributor
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Marijuana is now legal in Washington, D.C., but Congress is still holding on to the prospect that it can fight back and threaten legal action.

Although there was a heated standoff Wednesday, Mayor Muriel E. Bowser ultimately decided not to back down amid threats from two congressional Republicans. Legalization has moved forward, but the letter from Republican Rep. Jason Chaffetz of Utah threatening legal action remains, as well as other potential consequences.

Chaffetz claims the legal arguments against legalization in DC are “crystal clear.” Yet when asked Tuesday whether a lawsuit was in the works, Chaffetz was mum.

“It’s absurd for Chaffetz to say that it’s ‘crystal clear’ or that the mayor is in ‘knowing and willful’ violation of the law,” Dan Riffle, director of federal policies for the Marijuana Policy Project, told The Daily Caller News Foundation.

“The DC Council’s general counsel, the DC Attorney General, Minority Leader Nancy Pelosi, the ranking member of the Appropriations Committee, the ranking member of the Judiciary Committee, the ranking member of the Oversight Committee and the ranking member of the subcommittee where the amendment was drafted all believe the amendment doesn’t block legalization. At the very least this is a good faith disagreement,” said Riffle

Riffle said Chaffetz’s argument that the Continuing Resolution passed in December to block funds from being used to legalize marijuana is incorrect on legal grounds.

“The amendment attempting to block the initiative was passed in December, after the voters passed I-71,” Riffle continued. “It originally read in committee that DC couldn’t ‘enact or carry out’ legalization measures. It was then amended to say only that DC couldn’t “enact” such measures before enactment in the CRomnibus. There has to be some significance attributed to that change. It’s obviously meaningful that the ‘or carry out’ language was removed from the time it was approved in committee to the time it became law.”

In the letter, Chaffetz claims that although voters passed Initiative 71 in November, the Continuing Resolution was passed in December, and since Initiative 71 wasn’t transmitted to Congress until after the Continuing Resolution came into play, the measure is “ineffective and contrary to law.”

“The letter raises a very tricky, obscure question of constitutional law, and the answer isn’t immediately obvious,” Eric E. Sterling, president of The Criminal Justice Policy Foundation, told TheDCNF. “But what are the risks here, and what are the bigger issues? Is this very particular provision of the law going to stop the D.C. City Council from moving forward with the law which 70 percent of the district voted for? It doesn’t seem so, and it looks like the council is willing to take that risk.”

Initiative 71, passed by 70 percent in November, allows the possession of up to two ounces of marijuana. Users can also grow as many as six marijuana plants in the confines of their home for personal use, so long as both users and growers are over 21-years-old. However, users still are neither allowed to sell marijuana, nor consume it in public. Marijuana remains illegal on federal land within the district.

Although a lawsuit doesn’t look like it’s immediately on the table, Republican Rep. Mark Meadows hinted that reprisal might come in the form of restricted funds for other areas of the D.C. budget, in an effort to encourage the D.C. City Council to rethink its decision.

“While I’m not a lawyer, I think D.C. officials make a compelling case that the initiative was already ‘enacted’ prior to the time Congress passed its attempted block,” Tom Angell, chairman of the Marijuana Majority, told The Daily Caller News Foundation. “Prohibitionists were clearly very sloppy with the language in their bill, and D.C. officials are right to take advantage of that fact to implement the will of such a strong majority of the city’s voters.”

The House has decided it probably won’t sue the city. Instead, Republican Rep. Andy Harris of Maryland is hoping that Attorney General Eric Holder will step in and take action under the Anti-Deficiency Act. The act prohibits federal funds from being spent in the absence of appropriation. However, given the priorities of the Obama administration, a lawsuit from the Department of Justice appears most unlikely.

“Beyond the legal technicalities, the politics of this are just mind-boggling,” Riffle told TheDCNF. “Polls show a majority of Americans—including the vast majority of young voters who the GOP is desperately trying to court—think marijuana should be legal. Jason Chaffetz is positioning himself on the wrong side of voters and the wrong side of history.”

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Jonah Bennett