Legal Pot Slips Through a Loophole

Why an anti-drug rider failed to keep cannabis criminal in the capital


Harold Rogers, the Kentucky Republican who chairs the House Appropriations Committee, says a rider in the omnibus spending bill that Congress enacted last month stops the District of Columbia from legalizing marijuana. Eleanor Holmes Norton, the District's congressional delegate, disagrees. So do D.C. Mayor Muriel Bowser, D.C. Council Chairman Phil Mendelson, and D.C. Attorney General Karl Racine.

Surprisingly, given the sway that Congress has over D.C., it looks like Rogers will lose this argument, and marijuana will soon be legal in the nation's capital. Rogers' disadvantage reflects the shifting politics of marijuana legalization, which have left pot prohibitionists in a weaker position than ever before.

The legal dispute between Rogers and D.C. officials comes down to three missing words. The appropriations bill bars the District from using "funds contained in this Act" 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."

Originally the rider, introduced by Rep. Andy Harris (R-Md.), said "enact or carry out," but the latter three words were stricken during negotiations with Democrats. Norton et al. say that change means the rider does not override Initiative 71, the marijuana legalization measure that D.C. voters overwhelmingly approved in November, because the initiative has already been enacted.

D.C. officials seem to have a pretty solid argument, since Initiative 71, which eliminates penalties for marijuana possession, sharing, and home cultivation, does not require any additional legislation to take effect. Under the District of Columbia Home Rule Act, the initiative takes effect automatically unless Congress approves a joint resolution rejecting it no later than 30 legislative days after Mendelson submits it for review, which he plans to do this month.

If a resolution of disapproval is passed and signed by the president before the review period ends, the resolution "shall be deemed to have repealed" the initiative. A law cannot be repealed unless it has already been enacted.

Harris claims his rider "prevents the ultimate enactment of the ballot initiative." But according to Walter Smith, executive director of the D.C. Appleseed Center for Law & Justice, it is "highly unlikely" that Harris will get a chance to make that argument in court.

"I think no one's going to have standing to bring a lawsuit here," says Smith, who notes that the courts tend to look askance at requests by members of Congress to resolve disputes like this one, partly because legislators can always clarify things with new legislation. "The courts would, I think, be very reluctant to step in and litigate something that could be fixed legislatively," he says.

Such a legislative fix may be hard to manage, however. The most straightforward approach—a resolution of disapproval—is unlikely to get through the House and Senate within 30 legislative days, let alone be signed by a president who opposes congressional meddling with the District's marijuana policies.

The prospects for any other bill that requires a separate vote look pretty dim as well. Harris managed to get his rider enacted only by slipping it into a must-pass spending bill at the end of a legislative session.

By contrast, an amendment in the same spending bill aimed at preventing federal interference with medical marijuana laws—including the District's—passed the House last May with support from 219 members, including 49 Republicans. That suggests Harris could not count on support from his fellow Republicans if he tries to reverse Initiative 71 with new legislation.

James Jones, communications director at D.C. Vote, a group that supports greater autonomy for the District, notes that Harris must contend with Republicans' avowed preference for federalism and local control. "There's a strong element of their own party that thinks the states should determine this policy," he says.

Furthermore, Republicans are aware of polls indicating that most Americans support marijuana legalization. "This issue is moving quickly nationwide," Jones says. "The Republicans don't want to get on the wrong side of it."

© Copyright 2015 by Creators Syndicate Inc.

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  1. Simplest solution to the problem is to render the amendment a nullity with regards to pot by rescheduling it so it’s no longer Schedule I.

    1. Trouble is, all the parties involved with rescheduling are playing musical chairs with its authority.

      “The President can do it!” “No, only Congress can do it.” “No, the AG can do it.” “No, that decision rests with the DEA.”

      They’re acting like it’s still a third rail, even though A MAJORITY OF AMERICANS want it legalized.

      1. None of them want to lead, but they’re all signaling they might be willing to follow if someone else does.

        1. Get the ball rolling on a bill requiring every congresscreature and administration weenie to publicly state under oath every instance of their ingestion of any psychoactive substance. Someone will lead, then.

          1. Do you seriously believe stating something under oath means jackshit to these habitual liars?

          2. Nope. Mandatory piss testing of all elected and appointed officials and all federal employees.

            Sure, it’ll cost a fortune, but If It Saves Just One Life, amirite?

      2. Yeah, they are bobbing and weaving.

        But, there’s no question the President (via, perhaps, agencies that report to him, which means, well, the President) can move it from Schedule I to Schedule IV, although he can’t take it off the schedules entirely.

        1. Huh? There’s executive authority to remove it entirely.

          1. Not if you asked Obama. He’s the one passing the hot potato to the AG.

        2. As far as I can tell, weed is properly scheduled as is.

          If I remember correctly, S1 means “No legitimate medical use, high potential for abuse.” Note this is not “no medical *effectiveness*” and “high potential for (physical) addiction.” Those would be inherent pharmacological properties, whereas the actual standard is highly relative to social circumstance.

          Weed per se is a completely unacceptable candidate for a modern pharmaceutical product. Note that THC itself is S4–as is Sativex, an inhaled product made from actual weed but precisely titrated like every other legitimate medication. Give state bureaucrats a good decade to regulate rec weed into something as boring as that. For now, put it this way–if beer were banned but they found some medical benefit to its ingredients, you would not be seeing craft brews at your local pharmacy.

          As for abuse? Weed is fun and popular, and plenty of people smoke too damn much. (In fact, it’s the very availiability of this S1 drug that has kept the pharm products in S4. When was the last time you saw anyone pop a Marinol at a party?) How serious are the consequences of this “abuse”? That’s not in the criteria.

          …And there’s the real lesson of all this: DEA schedules are *stupid*. People who bitch about the “outrage” of weed being S1 are actually those who have not fully liberated themselves from the underlying assumption that any part of this drug war makes some sort of sense.

          1. I actually should amend this a bit. Since we are talking pharmaceuticals, “abuse” actually has a very straightforward meaning: It means **any** recreational use. I am abusing Sucrets if I take them just to see my tongue turn red. So weed’s fun and popularity is enough to keep it S1; we don’t need the judgment about whether people are smoking responsibly or not.

  2. Why would this Rep. in Kentucky give a rats behind about whether some city on the East Coast is legalizing pot? Is this really a burning issue for his district?

    1. He’s afraid he’ll smell it on the way to work and become a crazed psychopath…

    2. DC is under control of the US Congress, none of whom originate from DC.

    3. Because he takes an oath to serve the interests of the country in general, not just his district. Because it’s not “some city on the East Coast”; it’s (not to mention the city he works and partially lives in) the capital of said country–and that gives Congress a special interest in it that is not fully captured by “percent of land owned by the Federal government,” etc. And because he wants to use everything in his power to stop a legislative trend that he thinks will be harmful to his district and country (not to mention the fact that, by virtue of the Constitution he swore to, there is freedom of movement across borders and DC weed does not stay in DC)–and here, unlike interfering with the affairs of another state, he can do it with clear federalist conscience.

      Were you so quick to question why congressmen would give a rat’s behind whether “some city on the East Coast” had adopted an asinine gun policy or not? Let’s be fair here.

  3. Hal Rodgers, repeatedly reelected by lily-white hillbilly heroin addicts, makes bold stand against uppity nigras smoking reefers!

    1. Don’t you watch “Justified”? Them KY hillbillies apparently like cooking their meth more than they like their heroin.

    2. Mostly from dry counties, which have more meth than the wet ones, too.

  4. Originally the rider … said “enact or carry out,” but the latter three words were stricken during negotiations with Democrats. Norton et al. say that change means the rider does not override …the marijuana legalization measure

    “Obviously a ‘reasonable mistake of law’. You know what we intended.”

    1. A little bit of irony in the Democrats insisting that the direct meaning of the words regardless of intent, yes. But them’s the breaks.

  5. “The Republicans don’t want to get on the wrong side of it.”

    Have the Repubes been on the right side of ANYTHING in the last decade or two?

    1. They were against Obamacare, sort of. So yes.


      1. Only publicly. In private they were salivating at the thought of new federal powers they could use to force citizens to do whatever they think ‘the right thing’ is. Republicans are just democrats with bibles, they just give lip service to idiotic notions like constitution and freedom so their voting base won’t notice.

      2. Sort of is right. I highly doubt most Republicans in power would have given a rat’s ass if Obama had an R after his name. Look how enthusiastically the party pushed Medicare Part D through, only a few years before the ACA.

        Not to mention the fact that all of these federalism arguments R’s are using now to fight the ACA will be forgotten once an R is in office, especially when it comes to marijuana (just look at the lawsuit by NE and OK against CO pending before SCOTUS).

    2. And the “Bush” (now Obama) tax “cuts”.

  6. I posted the actual governing language awhile back.

    Its quite un-dispositive of this issue.

    As I thought about it, I think, unfortunately, that the Rep may have a slightly stronger argument on the technicalities.

    Of course, these are the sort of technicalities that don’t stop someone who is sufficiently determined. But they are handy cover for people who really don’t want it to happen.

    We’ll see.

    1. Technicality or no, how’s this Rep supposed to enforce his interpretation of the language? He doesn’t have standing and it’s doubtful anybody does especially since this is a classic “political question” courts punt from their dockets.

      1. That’s it, precisely, bassjoe.

        If enough People Who Matter are perfectly happy for legalization to die on the vine, this gives them cover. In the DC government, they can take the position that its not enacted until its submitted to Congress and the thirty days runs, and they’re not allowed to submit it to Congress. So sorry.

        In Congress, they can take the same position, and say that the resolution was illegally submitted (if it is submitted at all), and so the thirty days never started to run and it never takes effect.

        See? Cover.

        If enough People Who Matter are wanting to see legalization happen, well, its an ambiguous technicality, and we can let the Will of the People be respected.

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  9. We’d all be better off if the police focused on crimes that have actual victims!

    Does anyone ( other than that idiot, Harris) honestly believe that wasting $20 Billion and arresting 3/4 Million Americans annually for choosing a substance scientifically proven to be safer than what the govt allows, is a sound policy?

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