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.

Comments

[Notorious G.K.C.]

"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."

As I understand it, what Congress did in the Home Rule Act is to automatically delay the effective date of any new law passed by the District. Congress can disapprove any District law it wants, as part of its sovereign power over the District. But just because Congress disapproves of a law doesn't mean it never existed. The law was in fact duly enacted by the District.

[Notorious G.K.C.]

Again, Congress can repeal any DC law at any time, all the Home Rule Act does is delay the effective date so we don't have the horrible situation of a DC law being enforced before Congress can repeal it.

Yeah, "disapprove" should probably be called "repeal." The dope law is, I think, in force subject to a delayed effective date, just like lots of laws have such a delayed effective date.

[R C Dean]

That's the best argument in favor of DC's position: that the law is enacted with a delayed effective date.

We're into the metaphysics of how you can disapprove a law without repealing it; how a law that is enacted can be removed from the books without repealing it.

[gaoxiaen]

Well, Presidents have pardoned people who were never convicted.

[R C Dean]

But supporters of Initiative 71 argue, quite plausibly, that it was enacted when voters approved it in November.

There's plenty of room for lawyers to argue both sides. Based on my very quick review of the statute, I tend to think that its not actually enacted until the 30 day period runs. But, political questions around ambiguous statutes are generally resolved, well, politically, so I doubt the "right" answer even matters.

On the pure legal issue, I suspect that the idiot from Maryland actually has a (slightly) stronger argument, such intellectual and legal giants as Eleanor Holmes Norton and Muriel Bowser notwithstanding.

[R C Dean]

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,

The "repeal" word is used, I believe, only when Congress rejects an initiative after the thirty day period has run. Congress rejecting an initiative during the thirty day period is not called a "repeal." Here's the sentence:

. . . such act shall take effect upon the expiration of the 30-calendar-day period . . . beginning on the day such act is transmitted by the Chairman to the Speaker of the House of Representatives and the President of the Senate, or upon the date prescribed by such act, whichever is later, unless during such 30-day period, there has been enacted into law a joint resolution disapproving such act.

Note the repeal language is not used if the initiative is "disapproved" by Congress during the 30 day period. It simply never takes effect.

In any case in which any such joint resolution disapproving such an act has, within such 30-day period, passed both Houses of Congress and has been transmitted to the President, such resolution, upon becoming law, subsequent to the expiration of such 30-day period, shall be deemed to have repealed such act, as of the date such resolution becomes law.

[Notorious G.K.C.]

They can certainly use their own terminology, but I would say that Congressional legislative power over the District is exercised by passing and repealing laws.

If the DC laws were subject to the approval of Congress, they'd simply be recommendations until Congress acted. But under the Home Rule scheme, Congress has to pass an act (oops, joint resolution) *blocking* the law or else it takes effect.

And the effective date is "upon the expiration of the 30-calendar-day period . . . beginning on the day such act is transmitted by the Chairman to the Speaker of the House of Representatives and the President of the Senate, or upon the date prescribed by such act, whichever is later, unless [etc]"

Now, if DC passed a law today, providing that the effective date would be October 1, then the Congressional review period would presumably expire before that date. But we can't say the law isn't *enacted* until October 1.

[Notorious G.K.C.]

So my best guess would be that the enactment of a DC law is when it gets approved by the local legislature or voters. Then we discuss the effective date, but that date doesn't affect the date of enactment.

[Notorious G.K.C.]

In any case, Congress, while acting in an appropriation bill, addresses what is clearly a criminal issue - DC can't spend money 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."

Since this provision deals with criminal law, then the rule of lenity ought to apply - that if a criminal statute has ambiguities, those ambiguities will be resolved in the defendant's favor.

It's at least ambiguous whether Congress has required the prosecution of people whose actions would be legal under the putative DC law - so let's interpret this clause to allow the law to take effect.

[Notorious G.K.C.]

But who knows - maybe the drug warriors won't be able to get standing to promote their theories.

[userve32]

I dont think Sammy Jo Jo is going to like that.

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[Dusty Relic]

Jacob,Harris and his allies lack more than just standing to sue; they also lack a case! The law as written is pretty clear; I am sure by now you've read both section 809(a) and 809(b) and have noticed that section (a) -- which applies only to Federal funds -- contains the magic phrase "may not be used to enact or carry out" while (b) -- which applies to District funds -- only contains "may not be used to enact". And Harris can fume all he wants about Congressional intent but a handful of minor Representatives do not get to set the law nor do they define intent; legislation must by agreed upon by both of Our Houses and the President.

The magic phrase was omitted because leaving it in endangered the bill's ability to pass in both Houses. When the courts look at Congressional intent, they will look at the intent of the entire body and not just the views of a few sore losers who couldn't get what they wanted past the Congressional conference committee process. But as you've previously noted, it is really unlikely that the courts will choose to intervene in the Legislative Branch's business, because Congress has a means at its disposal to stop this initiative in its tracks. Of course, when I say Congress I am referring to the entire body of Congress and not just a few whiny little House bitches.

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[MSimon]

From the WaPo:

D.C. Democrats say they are ready to wager that Republicans will be unwilling to get bogged down in overturning the city's marijuana law, which 7 in 10 voters supported in last month's election. Doing so, Republican strategists acknowledge, risks exposing a divide between Republican conservatives and libertarians that could prove consequential to the 2016 presidential race.

I have a link to that and more to say here:

http://classicalvalues.com/2015/01/dc-pot/