Why Congress Is Unlikely to Stop Marijuana Legalization in Washington, D.C.

Republicans may decide they love liberty and limited government more than they hate pot.


At a press conference last week, Eleanor Holmes Norton, the District of Columbia's congressional delegate, urged her colleagues to respect the will of the voters who overwhelmingly approved marijuana legalization in the nation's capital on November 4. She was joined by three congressmen, including Dana Rohrabacher (R-Calif.), who said trying to block legalization in D.C. or in Alaska and Oregon, where voters also said no to marijuana prohibition this month, would flout "fundamental principles" that "Republicans have always talked about," including "individual liberties," "limited government," and "states' rights and the 10th Amendment."

Norton noted that "we've had a threat to try to overturn our legalization initiative." She was referring to Rep. Andy Harris (R-Md.), who after the D.C. vote told The Washington Post, "I will consider using all resources available to a member of Congress to stop this action." Although there is no doubting Harris's sincerity, those resources probably will prove inadequate.

Initiative 71, which passed by a margin of more than 2 to 1, allows adults 21 or older to possess two ounces or less of marijuana, grow up to six plants at home, and transfer up to an ounce at a time to other adults "without remuneration." It does not authorize commercial production or distribution, although the District of Columbia Council is considering legislation that would. "I see no reason why we wouldn't follow a regime similar to how we regulate and tax alcohol," incoming Mayor Muriel Bowser said at a press conference after the election.

In theory, there are a couple of ways that Congress could try to stop all this from happening. It could pass a joint resolution disapproving Initiative 71, or it could bar the District from spending money to implement the measure. But neither of these approaches looks very promising.

Initiative 71 cannot take effect until after D.C. Council Chairman Phil Mendelson submits it to Congress for review, which he is expected to do when the new Congress is seated in January. "I will treat Initiative 71 in the same manner as I would any measure passed by the Council and transmit it to Congress without delay," he said last week. Although Mayor-elect Bowser indicated that she would like to wait until the D.C. Council has approved legislation authorizing the licensing of commercial growers and retailers, the timing is up to Mendelson.

Once Mendelson submits the initiative, Congress has 30 legislative days to pass a resolution overriding it. If a resolution is not enacted by the end of that period, the initiative automatically becomes law. Getting a bill through both chambers in that amount of time will be a challenge, even with Republicans taking control of the Senate and expanding their majority in the House. And that's assuming Republicans—who, as Rohrabacher noted, often talk about the virtues of federalism and local control—think nullifying a policy endorsed by 69 percent of D.C. voters should be one of their first acts in the new Congress.

"I think a resolution of disapproval is unlikely," says Bill Piper, director of national affairs at the Drug Policy Alliance. "Overturning a ballot measure passed by 70 percent of the voters doesn't really look good for the incoming Republican Congress. If the council transmits [the initiative] in January, I think that pretty much reduces or eliminates the chance that Congress will overturn it outright. It just doesn't fit with what they're talking about doing, which is rebranding themselves as not being obstructionists."

Nikolas Schiller, communications director at the D.C. Cannabis Campaign, which backed Initiative 71, agrees that Republicans will not be eager to nix it. "We believe that a new Republican Congress will not interfere with something that deals solely with personal liberties," he says.

Even if the House and the Senate both passed a resolution against Initiative 71, it would still need President Obama's signature. "The White House is already on record opposing interference with D.C.'s marijuana law," Piper notes. Last summer, after the House Appropriations Committee approved an amendment introduced by Andy Harris that was intended to stop the D.C. Council from decriminalizing marijuana possession, the White House objected:

The Administration strongly opposes the language in the bill preventing the District from using its own local funds to carry out locally passed marijuana policies, which…undermines the principles of States' rights and of District home rule. Furthermore, the language poses legal challenges to the Metropolitan Police Department's enforcement of all marijuana laws currently in force in the District.

Strictly speaking, "states' rights" do not apply to the District of Columbia, which was created by Congress and is subject to much more extensive federal control than the states are. But as Obama suggests, the arguments for federalism—in particular, the idea that political decisions should be made at the lowest feasible level to facilitate citizen influence, policy experimentation, and competition among jurisdictions—apply to D.C. as well as the states. Given the president's views on the subject, it seems reasonable to assume that he would take a dim view of attempts to nullify Initiative 71.

Harris's anti-decriminalization amendment, which was omitted from the final appropriations bill because of resistance in the Senate, would have prohibited the D.C. Council from spending money "to enact or carry out any law, rule, or regulation to legalize or otherwise reduce penalties associated with the possession, use, or distribution" of marijuana or any other Schedule I drug. For more than a decade, Congress used a similar spending restriction to block implementation of a medical marijuana initiative that D.C. voters approved in 1998. If Harris cannot get a resolution of disapproval overturning Initiative 71, he could try another appropriations rider. Since Republicans will be running the Senate, he should have a better chance of getting an amendment approved.

In practice, however, an appropriations rider would not accomplish much even if it were included in a bill signed into law by the president. Unless Congress is still working on appropriations for the current fiscal year come January, Harris would have to wait until spending is authorized for fiscal year 2016. "They could do an appropriations rider that might take effect in September, October, November, December," Piper says, "but Initiative 71 will already be in effect by then."

Since the District already will have eliminated penalties for marijuana cultivation, possession, and sharing within the limits set by the initiative, telling it not to spend money on doing so will be ineffectual. There would have been a similar problem if Harris's anti-decriminalization amendment had been enacted this year, since the appropriations bill to which he tried to attach it was signed months after possessing up to an ounce of marijuana was changed from a misdemeanor to a citable offense punishable by a $25 fine.

A spending restriction enacted toward the end of next year would be more effective at preventing D.C. from proceeding with plans to license and regulate marijuana businesses. The D.C. Council could pass a marijuana regulation bill by the middle of 2015, and if it survives congressional review it could take effect before Congress passes a new appropriations bill. But legalizing commercial production and distribution of marijuana is a process that could take another year or two, with the first licensed pot shop opening anywhere from the summer of 2016 to the beginning of 2017. There would be plenty of time for Congress to interfere if it decided to do so.

Will it? The signals are mixed. Harris's anti-decriminalization amendment passed the House Appropriations Committee by a mainly party-line vote of 28 to 21. The spending bill including his amendment passed the House by another party-line vote of 228 to 195 (although voting for the spending bill did not necessarily indicate support for Harris's crusade against decriminalization). Next year there will be 12 more Republican representatives.

Then again, this year the House repeatedly voted against federal interference with marijuana reform. On May 30, 219 members, including 49 Republicans, voted for a Rohrabacher amendment telling the Justice Department and the Drug Enforcement Administration not to spend money on efforts to undermine medical marijuana laws. On July 16, 231 members, including 45 Republicans, approved an amendment barring the Treasury Department from punishing banks for serving state-licensed marijuana businesses. On the same day, 236 members, including 46 Republicans, rejected an amendment that would have barred the Justice and Treasury departments from implementing guidelines aimed at increasing cannabusinesses' access to banking services. All of those votes dealt with D.C. as well as the states.

"I think if there were a vote on the House floor, the momentum would be on our side," Piper says. "I don't think it would be a slam dunk for Andy Harris." Piper adds that when a bill aimed at protecting medical marijuana laws was introduced in the Senate this year, there seemed to be at least 50 votes for it. Piper says 60 votes probably would be needed under Senate rules to approve a rider. "Republicans have picked up some seats," he says, "but the seats they picked up weren't mainly held by progressive Democrats. So it's not clear to me they have the votes in the Senate."

One Republican senator is already on record as opposing federal interference with Initiative 71. "I think there should be a certain amount of discretion for both states and territories and the District," Sen. Rand Paul (R-Ky.) told reporters on Election Day. "I'm not for having the federal government get involved. I really haven't taken a stand on…the actual legalization…but I'm against the federal government telling them they can't." Paul's views might be influential, especially since he will be chairing a committee that oversees the District's government.

"If [legalization opponents] went to the Appropriations Committee," Piper says, "they could avoid Paul, except that he probably would speak out against such an amendment on the floor and rally the Republicans." Another Republican senator, Pat Roberts, who was re-elected to represent Kansas last week, has saidstates should be free to legalize marijuana, and he may extend the same leeway to D.C. The question for Republicans who have not taken a public stand on this issue is whether they hate marijuana more than they love liberty, limited government, and local control.

This article originally appeared at Forbes.com.