Marijuana

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

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Comedy Central

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 activities 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. Harris claims his rider "prevents the ultimate enactment of the ballot initiative," but that seems like a stretch.

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.

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  1. 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.

    This is sort of what I was trying to say earlier today. It seems like it might interfere with setting up the regulatory structure for cannabis based businesses, but I don’t see how it stops making cannabis legal, since the initiative already passed.

  2. 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.

    I’d give that a zero percent chance of happening. Republicans have already admitted that this is not a fight they want to take up. It’s a big time loser, just like that fucktard Harris.

  3. “that does not mean i was not enacted this year.”

    I was enacted at night, but I wasn’t enacted last night!

  4. Since this process of submission and review entails some use of public money,

    Does it? Can they point out to me the line item of spending that would be involved in walking some paper over to Congress?

    What if the people who need to do whatever work is needed do it on their time off?

    What if private citizens make donations to fund whatever needs funding for enactment? Would that be prohibited?

    1. Does it? Can they point out to me the line item of spending that would be involved in walking some paper over to Congress?

      What if the people who need to do whatever work is needed do it on their time off?

      This part is easy – if they’re salaried then any work they do is, by definition, not time off.

      If they’re hourly then its *illegal* for them to do any work off the clock – they’ll have to be paid.

      Or, at least that’s the rules for *private* organizations – government employers get a pass on compliance.

  5. It seems that the local government is required to do nothing. Doing nothing is free of cost. Problem solved.

    1. That’s the kicker here – all legalization requires is that the state *do nothing*.

      A licensing regime is not necessary for legalization, all you need is for the cops to stop arresting people for it.

      1. Have the state do nothing ? How would that work. Who would you ask permission from ? And who would give the orders ? I don’t think you understand how freedom works.

    2. But whats their incentive to do nothing if you don’t pay them to do nothing?

  6. It would be great (and kind of ironic) if DC goes full disobedience mode and nullifies the feds. Please show some balls, DC council!

    1. DC *can’t* – unlike states, they are statutorily subordinate to the federal government.

    2. What is there to disobey? This isn’t about doing something, it’s about doing nothing. What could DC do that could be said to nullify what the feds say in this regard? You can’t point to someone with pot & say the failure to fine that person is disobedient, because the police can never catch everybody, and prosecution doesn’t necessarily result in conviction, and a conviction doesn’t necessarily result in a fine.

  7. Harris claims his rider “prevents the ultimate enactment of the ballot initiative…”

    So the conversation would go something like this:

    Norton: [to Harris] Let it go. War’s over, man. The citizens dropped the big one.

    Harris: What? Over? Did you say “over”? Nothing is over until we decide it is! Was it over when the Germans bombed Pearl Harbor? Hell no!

  8. The rider states that ‘None of the funds contained in this Act may be used to enact any law, rule, or regulation… ‘

    That clearly states that no Federal funds may be used. But doesn’t DC have any local taxes (sales, or property, or whatever)? If for some reason it really is necessary for the DC Council to actually spend some money to enact the Initiative, couldn’t they just include some bookkeeping measure that says that only local funds are being used?

    Or does their special status as a Federal Territory mean that all of the District’s funds are part of the Federal Budget?

  9. It is going to prevent legalization. You can’t have legalization without a legal framework for buying and selling. Otherwise you’re just talking about defacto decriminalization.

    I may be underestimating DC local government, but if they can’t find a way to make money off of legal pot, there will be more of an incentive to go back to making money off of prohibition.

    1. I guess in the long run it depends how much political capital other republicans or Prohibitionist democrats see in fighting this each step of the way.

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  11. The rider actually contains two paragraphs which sound so similar they seem redundant. But there are differences:

    1. 809(a) specifies “[n]one of the Federal funds” while 809(b) just says “None of the funds” contained in the Act.

    2. 809(a) says “used to enact or carry out” while 809(b) says “used to enact”.

    3. 809(b) specifies “for recreational purposes” while 809(a) does not.

    Although local funds can be used to enact or carry out cannabis laws that are not for recreational purposes as per 809(a), as per 809(b) no District funds can be used to enact recreational cannabis legislation. However local District funds can still be used to carry out recreational cannabis legislation that is already enacted because (b) unlike (a) does not contain the phrase “or carry out”.

    I believe Homes Norton is correct to say that the law is enacted. One could convincingly argue (and I believe convince a court) that the remaining work to transmit the bill to Congress and to then implement it all part of carrying it out, which can be legally done (but only with the District’s local funds).

    Not only is this interpretation consistent with what some congressional aides were leaking to the press early in the week of Dec 8 but it is the only explanation I can think of for even having these two similarly worded paragraphs in the first place. Congress was trying to give the district a way forward while still letting Certain Congressmen have a nominal victory.

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