Will the Rider Aimed at Stopping Marijuana Legalization in D.C. Actually Do That?

As I
noted earlier today, the omnibus spending bill that Congress
plans to pass this week includes a rider aimed at blocking
marijuana legalization in Washington, D.C. But Eleanor Holmes
Norton, the District’s nonvoting delegate in Congress,
questions whether the rider will actually accomplish that goal.
The spending restriction, introduced by Rep. Andy Harris (R-Md.),

says:

None of the funds contained in this Act may be used to enact any
law, rule, or regulation to legalize or otherwise reduce penalties
associated with the possession, use, or distribution of any
schedule I substance under the Controlled Substances Act (21 U.S.C.
801 et seq.) or any tetrahydrocannabinols derivative for
recreational purposes.

House Appropriations Committee Chairman Hal Rogers (R-Ky.)

claims this rider “prohibits both federal and local funds
from being used to implement a referendum legalizing recreational
marijuana use in the District.” But that is not quite
accurate, since the rider refers to enactment, not
implementation.

By contrast, an earlier version of the Harris rider dealt
with spending to “enact or carry out” legalization of any Schedule
I drug. That difference could prove crucial, Norton says,
because Initiative 71, the
D.C. ballot measure legalizing marijuana possession, sharing, and
home cultivation, “was enacted when it was approved overwhelmingly
by voters in November.” The initiative’s elimination of penalties
for specified marijuana-related actitivies is “self-executing,”
Norton says, requiring no additional legislation by the D.C.
Council or by Congress. In other words, the event Harris seeks to
prevent has already happened.

Harris and his allies might point out that Initiative 71 will
not take effect until it survives congressional review, which does
not begin until D.C. Council Chairman Phil Mendelson officially
submits the measure to Congress. At that point, Congress has 30
legislative days to pass a joint resolution rejecting the
initiative (a resolution that requires the signature of a president
who
opposes interfering with the District’s marijuana policies). If
Congress fails to pass a resolution during the review period, the
initiative takes effect automatically.

Since this process of submission and review entails some use of
public money, wouldn’t it be blocked by Harris’ rider? Maybe not.
There is a difference, after all, between “enact[ing]” a measure
and making it effective. A law passed this year might not take
effect until next year, but that does not mean it was not enacted
this year. The Harris rider only bars enactment of Initiative 71,
Norton says, and it’s too late for that.

That seems like a pretty strong argument to me, since the
District of
Columbia Home Rule Act says a ballot initiative “shall take
effect” at the end of the review period unless a resolution of
disapproval has been enacted by then. If Congress does pass a
resolution and the president signs it, the resolution “shall be
deemed to have repealed” the initiative. You cannot repeal a law
that has not already been enacted.

If Norton is right, the Harris rider will not stop Initiative 71
from taking effect. Congress could still block it with a resolution
of disapproval next year, but that task would be
considerably harder than tacking an amendment onto a must-pass
spending bill at the end of a legislative session.

The Harris rider clearly will prevent the D.C. Council from
creating a system for licensing and regulating marijuana
businesses, since that would require
new legislation. That means homegrown marijuana will be the
only legal source, so cannabis consumers who want to stay within
the law but are not up to cultivating plants will have to cultivate
friends who are.