Flanked by members of the D.C. Council and the city’s top lawyer, Mayor Muriel E. Bowser announced on live television Wednesday that marijuana possession will become legal in the District at 12:01 a.m. Thursday.
“We believe that we’re acting lawfully,” Bowser said, offering a direct retort to House Republicans who late Tuesday urged the mayor — and even threatened prison time — to reconsider moving forward with legalization.
“I have a lot of things to do in the District of Columbia,” Bowser said. “Me being in jail wouldn’t be a good thing.”
It also doesn’t appear likely to happen soon. House Republicans said Wednesday that they are not preparing to take legal action against the city should it proceed in defiance of a congressional funding rider. Instead, one congressman said, it would fall to the Justice Department to intervene — a much less likely scenario under the Obama administration.
“I think the attorney general should prosecute people in the District who participate in this under the Anti-Deficiency Act,” said Rep. Andy Harris (R-Md.), who introduced the appropriations amendment intended to block the city from moving forward with the marijuana legalization measure passed by voters in November.
The federal Anti-Deficiency Act imposes criminal penalties on government employees who knowingly spend public funds in excess of their appropriated budgets.
Earlier Wednesday, several city leaders publicly urged Bowser to defy the congressional warning, proceed with legalization and let the federal courts decide the matter if Congress chooses to push it that far.
“We have had solid legal ground this whole time on how to follow this initiative,” said D.C. Council member Charles Allen (D-Ward 6). “This has nothing to do with marijuana. This is about the autonomy of the District and the will of the District voters. Quite frankly, I think it’s a perversion of democracy, what they are trying to do.”
Said council member Vincent Orange (D-At Large): “At this point, it is too late for the mayor to do an about-face. This is an important moment for the city . . . and she is out there, and the legislative branch and attorney general are with her. This is not the time to blink. We are on sound legal footing and should go forward with legalization and let the courts decide.”
Council Chairman Phil Mendelson (D) also spoke at the press conference and said that the council had no choice but to allow Initiative 71 to take effect.
“The initiative was enacted at the point that the voters voted and the board certified the results,” Mendelson said.
“I sent the initiative to Congress for the required congressional review as required by law. This is not a matter that I had a choice about. The legal opinions are consistent.”
Among several key House Republicans, none would say that the House itself is considering going to court to block the city from proceeding with the marijuana legalization law.
Asked Tuesday night whether a lawsuit was on the table, Rep. Jason Chaffetz (R-Utah) shrugged and declined to say. “It’s in the law; it’s crystal clear,” said the chairman of the House Oversight and Government Reform Committee, which has jurisdiction over District legislative matters.
Chaffetz sent a letter to Bowser warning her of dire consequences should the District proceed.
“If you decide to move forward tomorrow with the legalization of marijuana in the District, you will be doing so in knowing and willful violation of the law,” read the letter, which was signed by Chaffetz and Rep. Mark Meadows (R-N.C.), chairman of the subcommittee that handles D.C. affairs.
Meadows said Tuesday evening that the funding language “creates unbelievable barriers in terms of having the city successfully implement what they believe to be law.”
“I think Chairman Chaffetz and I agree that what we passed is clear,” Meadows said. “We’ll continue to support the will of Congress in this particular endeavor. I think tomorrow will be step 1 of many more conversations that may have to happen in order for this issue to be resolved.”
But that resolution, Meadows added, is not likely to involve the courts: “There’s no talk of litigation. . . . I think it plays out on the funding side of it. There’s a lot of funding questions, whether it’s specifically about this or other related topics that become very difficult for D.C. to be able to address without the help and will of Congress.”
Harris also played down the notion that the House itself would go to court, saying that the matter instead lies in the hands of Attorney General Eric H. Holder Jr.
“I believe the attorney general is the one who would bring action under the Anti-Deficiency Act, and I would hope that we would call on the attorney general to do just that,” he said. “This is a gross violation of the intention of Congress . . . Our intention was clear; it’s up to the attorney general to actually enforce the law.”
The top Democrats on the Appropriations, Judiciary and Oversight and Government Reform committees urged the city not to heel to the warnings from Chaffetz, Harris and other House Republicans.
The marijuana language included in the December spending bill “do not appear to apply to the marijuana measure adopted overwhelmingly by District voters,” they wrote.
“Rather than threatening elected District officials with prison time for implementing the will of the voters, Republicans should focus on more pressing matters, such as the dysfunctional division within their own party that is now threatening to shut down the Department of Homeland Security in a matter of days,” the joint statement continued.
William Miller, a spokesman for the U.S. attorney’s office in the District, on Wednesday referred questions about the matter to the main Justice Department. Patrick Rodenbush, a Justice Department spokesman, declined to comment on whether it would entertain charges against city officials for Anti-Deficiency Act violations.
Criminal prosecutions under the Anti-Deficiency Act are exceedingly rare, and the prospect that Holder, the appointee of a Democratic president, would arrest a Democratic mayor and her subordinates is even more scant.
House Speaker John A. Boehner appears to be steering clear of the D.C. marijuana fight, too. Spokesman Michael Steel said Boehner “deferred to the committee” on its actions and said he was not aware that he had taken any of the prerequisite steps to have the House pursue litigation against the city.
The letter from Chaffetz and Meadows came on the same day that Bowser declared that a voter-approved measure to legalize pot would become law in the city at 12:01 a.m. on Thursday, setting the stage for a dramatic showdown before that deadline.
In an interview with The Washington Post, Chaffetz went further. He said that if Bowser and city officials are “under any illusion that this would be legal, they are wrong. And there are very severe consequences for violating this provision. You can go to prison for this. We’re not playing a little game here.”
A spokesman for Bowser did not immediately return an e-mail and phone call seeking comment late Tuesday. But earlier in the day, Bowser had vowed to defend the will of seven in 10 voters who cast ballots in favor of following Colorado and Washington state in legalizing pot. Voters in Oregon and Alaska also passed measures to do so on the same day as those in D.C.
Unlike those states, however, D.C.’s own tax money remains subject to federal oversight, and its often liberal social policies routinely become pawns in federal budget battles.
At issue for the city’s marijuana law is a restriction that House Republicans tucked in a $1 trillion spending package in December. That provision precluded D.C. from enacting any new laws to loosen penalties for marijuana. Chaffetz and other Republicans critical of marijuana legalization applauded the restriction at the time, saying it had effectively suspended the voter-backed measure.
Del. Eleanor Holmes Norton, the city’s nonvoting member of the House, and Bowser said they viewed the restriction as not applying to the marijuana measure, known as Initiative 71, because it had already been passed by voters a month earlier.
Initiative 71 legalized possession of up to two ounces for D.C. residents and visitors over the age of 21. It also allowed for home cultivation of six plants, possession of marijuana paraphernalia and sharing of the drug. The congressional interference did halt the city from enacting any future rules to tax and sale marijuana as Colorado and Washington state have done.
The crux of the warning issued Tuesday by Chaffetz and Meadows, however, gets to even more obscure parts of the District’s tortured relationship with Congress.
All new local D.C. laws must pass a 30-day congressional review period. In the case of Initiative 71, that meant printing the measure and carrying it to Congress in January. Bowser, her police chief and other city officials have also worked behind the scenes in recent weeks to settle on rules for how marijuana legalization would take effect without legal sales.
The letter warned that Chaffetz’s committee had begun an investigation into Bowser’s assertion that marijuana legalization would take effect on Thursday. The letter asked Bowser’s administration to produce all documents related to enactment of the marijuana measure, expenses incurred to do so and even lists of all D.C. employes “who participated in any way in any action related to enactment of Initiative 71.”
In a tweet posted early Wednesday morning, Adam Eidinger, head of the D.C. Cannabis Campaign who organized the petition drive to get Initiative 71 on the ballot, said he hoped the city would dare move forward:
“I hope D.C. ignores this request, as it’s a plainly offensive intimidation of our leaders.”