The congressional budget deal that is poised to block District voters’ decision to legalize pot will almost certainly not be the final word on the matter. Here are five reasons why:
1. The vast majority of D.C. residents don’t want it to be: Almost seven in 10 D.C. voters backed legalization last month at the polls.
Mayor-elect Muriel E. Bowser (D) voted for it, and so did almost every member of the D.C. Council. And they did so not to make it easy for well-off, white college students to fearlessly smoke a joint.
Public opinion in D.C. was galvanized in favor of legalization largely because of studies that showed a wild racial disparity in drug arrests. One showed that nine out of 10 people handcuffed for simple drug possession in the city in recent years were African American, even though surveys show that pot use among racial groups varies little. No local politician wants to be seen as dropping the ball on legalization, especially when the marijuana debate is framed as a civil rights issue for the discrepancy in arrests.
2. There might be a loophole: The congressional rider barring D.C. from moving forward on Initiative 71 sounds clear enough: The city would be prohibited from spending money to “enact any law, rule, or regulation” to legalize or otherwise reduce penalties for recreational use of marijuana.
Unlike in other parts of the bill, however, there are two words missing. The part targeting D.C.’s marijuana initiative begins by stating that funding would be barred only to “enact,” not to “enact or carry out.”
The difference? Is passing a law to implement a voter-approved ballot measure “carrying out” or “enacting” the will of voters?
It’s a question seemingly primed for the courts. Several congressional Democrats have also told The Post that the omission was by design. Muddling the language on D.C.’s pot initiative was the best some Democratic negotiators said they could manage amid a broader fight over $1 trillion in federal spending, pension cuts and immigration reform. Even before the bill is passed, those Democrats have begun encouraging D.C. politicians to let courts decide whether D.C. could go forward, arguing it is only “carrying out” the will of voters.
3. “Statehoooood.” Trampling on the autonomy of 650,000 voters in the District of Columbia (more than two states with voting representation in Congress) has bruised some egos and is poised to force the District’s new mayor to make a forceful stand.
Bowser on Wednesday already indicated that the congressional interference would change her approach. Last month, the mayor-elect declared she would not implement the voter initiative (which only legalizes possession and home cultivation) without companion legislation to tax and regulate pot sales. One without the other, Bowser warned, could lead to open-air drug markets and tie the hands of police.
But Bowser backed off that stance Wednesday. She suggested that she may be willing to try to implement Initiative 71 without a system for legal sales, which the spending bill would clearly prohibit. (That approach, some Democrats added, could have the benefit of allowing Bowser to blame any ensuing chaos on Republicans in Congress.)
“My job is to uphold the will of the voters, and the voters overwhelmingly support legalizing marijuana in the District,” she said.
4. It remains unclear how badly Republicans want it: Upending the District’s marijuana measure with two paragraphs tucked in a 1,600-page spending bill that was released in the dark of night is one thing. Republicans holding a floor vote next year to veto the measure (and by extension, states’ rights) could be quite another. The irony would be thick, especially after voters in Alaska last month made it the first red state to legalize pot.
One indication that Republicans aren’t ready to put marijuana policy under the microscope came Wednesday. Despite his apparent success in halting the D.C. measure, the Republican most influential in negotiations on the topic, House Appropriations Committee Chairman Harold Rogers (R-Ky.), deflected a chance to claim victory. Asked about the provision, Rogers said: “Congress oversees the D.C. spending, and that was an item that we felt was appropriate.”
Pressed further, Rogers merely referred to his brief statement.
D.C. Council Chairman Phil Mendelson (D) told The Post he is inclined to transmit the marijuana legalization initiative to Congress in January regardless of whatever prohibition is in the spending bill. That would likely start the clock ticking on a 30- to 60-day congressional review period, and the only way Congress could stop it would be to actively pass a measure rejecting the D.C. marijuana law.
And that wouldn’t be the end of it. Congressional overrides of D.C. laws — of which there have only been three in 40 years — require the signature of the president. President Obama indicated in a policy statement over the summer that he would veto any attempt by Congress to override D.C. autonomy in setting its drug policy.
5. No clear standing for a court challenge: We’re into hypotheticals here, but if the D.C. Council does send legalization to Congress, and Republicans decline to veto, would Congress still have standing after the fact to sue the city to block legalization? And if not congressional Republicans, then who? At least under Obama’s tenure, the Justice Department seems unlikely to sue D.C. based on its policy guidance issued last year to allow experimentation with legalization to proceed in Colorado and Washington state.
If anything, the Justice Department said it expects states that legalize to “establish strict regulatory schemes.”
Mike DeBonis, Ed O’Keefe and Paul Kane contributed to this report.