WASHINGTON, D.C. – There’s a high chance that DC will legalize pot this fall, almost 2 to 1 according to the most recent polls. If the legalization ballot measure passes, the outcome could create a remarkable juxtaposition—one where marijuana remains outlawed in the majority of the country but can be openly smoked right in Congress’s backyard.
But it’s the aftermath following the vote that is poised to be the most interesting because it could shed light on the federal government’s real views on legalization.
Congress and President Obama have so far taken a backseat to the 23 states, like Colorado and Washington, that legalized marijuana use, either medically or recreationally. Because the nation’s capital is a district of the U.S., both branches are uniquely positioned to interfere with any law that is passed. And their reactions could be pretty telling.
“So far Congress has largely remained hands off with legalization, but how they react to this potential approval will be a true test to their tolerance regarding local marijuana legalization,” said Erik Altieri, Communications Director at the National Organization for the Reform of Marijuana Laws (NORML).
A majority of D.C. residents favor passing the pro-legalization measure and the local city council, which has recently voted to decriminalize the drug and could benefit from any tax revenues on marijuana sales, seems unlikely to bar the measure if it were passed.
But Congress remains the wildcard.
“I think Congress is the biggest hurdle,” said Janene Jackson, former director of the Office of Policy & Legislative Affairs for DC Mayor Vincent Gray and an employee at law firm Holland & Knight. “I’d never say anything about legislation with a certainty—but it does not bode well.”
Even if voters pass the measure in November, there are numerous responses the local and federal government can take to prevent marijuana legalization in D.C.
While unlikely, the city council could pass a new bill to re-criminalize the drug—effectively stopping the law in its tracks. If the council chooses not to act, it’s Congress’s turn.
Members could vote to prohibit the law from taking effect. Congress also has authority over the city’s budget and could impede the legislation by cutting off all funding to the law’s implementation. If Congress made that move, the final fate of the city’s marijuana law would rest with President Obama, who could veto it.
Such a measure wouldn’t be the first time Congress used its power of the purse to block district legislation from moving forward.
In 1998 members of Congress stymied a DC law legalizing medical marijuana by passing an amendment that banned the city from spending any funds on the program. It wasn’t overturned until 2002. In 2011Congress prevented a needle exchange program from going into effect in the city through a similar move. The program aimed to help cut down on the spread of AIDs—the district has the highest rate of the disease countrywide.
“I fully expect certain members of Congress to try to intervene and put this thing on ice,” Robert Capecchi, deputy director of state policies at the Marijuana Policy Project, said. “I think you will see some members of Congress making statements.”
There’s already one congressman who’s been actively fighting the measure. Maryland Republican Rep. Andy Harris unsuccessfully challenged DC’s decision to decriminalize marijuana this summer by attempting to bar the district from using funds to enforce any laws with lessened marijuana penalties.
Although his efforts failed, Harris plans to fight the new legalization measure if its passes this fall.
“The federal government should enforce federal law regardless of whether local citizens try to legalize marijuana,” he told DecodeDC. “If legalization passes, I will consider using all resources available to a member of Congress to stop this action, so that drug use among teens does not increase.”
Local legislative experts think he won’t be the only one.
“I would say [legalization] is not a shoo-in. You have Congress, where Senators and Congressman can do here in the District of Columbia what they can’t do in their home states. They can intervene,” said Jackson at Holland & Knight. “I think there are individuals who believe the District of Columbia is an extremely progressive jurisdiction—and they would certainly want to take a stance—there is not a cost to a congressional leader to put forth their ideology here because there’s no voting consequence.”
Nevertheless, pro-legalization groups remain positive that the DC measure will succeed.
“It would certainly embolden other states if Congress was to stay out of it. It would be a massive symbolic victory if it were passed in D.C., right in Congress’s backyard, said Altieri at NORML. “If there’s Congressional action against D.C. I don’t think it will necessarily deter other states from pushing ahead either.”