D.C. Marijuana Initiative Goes to Congress for Review

Legalization takes effect automatically unless Congress enacts a resolution of disapproval.


Office of Phil Mendelson

Today District of Columbia Council Chairman Phil Mendelson officially transmitted Initiative 71, the ballot measure that legalizes marijuana possession, sharing, and home cultivation in the nation's capital, to Congress for review. Under the District of Columbia Home Rule Act, Congress now has 30 legislative days to pass a joint resolution of disapproval and get it signed by the president (who opposes such interference with the District's drug policies). If that does not happen, Initaitive 71 takes effect automatically "as early as March," per The Washington Post.

According to Post reporter Aaron Davis, "the District of Columbia defied its new Republican overseers in Congress" by submitting the initiative for review. Davis is referring to a rider in the omnibus spending bill approved by Congress last month that bars the District from spending "funds contained in this Act" to "enact" marijuana legalization. But supporters of Initiative 71 argue, quite plausibly, that it was enacted when voters approved it in November. In transmittal letters to House Speaker John Boehner (R-Ohio) and Vice President Joe Biden (who officially presides over the Senate), Mendelson noted that the initiative vote was certified on December 3, a week before Congress passed the spending bill.

Mendelson sees transmitting the initiative not as an act of defiance but as his legal duty, as he explained to Roll Call last month:

I'm not trying to defy anybody. I'm responsible for transmitting the initiative. I have a very clear requirement in the Home Rule Act to transmit the legislation. Congress has the ability to step in when that legislation is transmitted, so I don't see anything that's provocative here, and I certainly don't intend any provocation.  

Mendelson's understanding of the law is shared by D.C. congressional delegate Eleanor Holmes Norton, D.C. Mayor Muriel Bowser, D.C. Attorney General Karl Racine, and Democrats who were involved in the negotiations over the spending bill. The author of the anti-drug rider, Rep. Andy Harris (R-Md.), disagrees, arguing that surviving congressional review amounts to "the ultimate enactment of the ballot initiative," which means transmitting it is part of the enactment process. That position seems inconsistent with the Home Rule Act, which says a successful resolution of disapproval "shall be deemed to have repealed" the law it rejects, implying that the law at that point already has been enacted. In any case, as I explained in my column last week, Harris and his allies probably do not have legal standing to challenge the District's interpretation of the rider, although they can try to pass new legislation clarifying what they meant to do.