February 27, 2015
The battle between Congress and the District of Columbia over its new voter approved marijuana legalization initiative may seem esoteric at first blush. That is because the current debate centers on when the District law was deemed enacted in order to determine whether it has violated a Congressional restriction on use of funds to “enact any law, rule, or regulation to legalize or otherwise reduce penalties associated with” controlled substances.
Should the debate move beyond semantics, this confrontation could result in a very significant, consequential and long overdue debate both about marijuana policy in the United States and about Washington’s continued status as the nation’s last colony.
The Battle of Dates
To understand this debate you have appreciate the importance of a few key dates. The first is November 4, 2014 when seventy percent (70%) of District of Columbia voters approved Initiative 71 legalizing possession of up to two ounces of marijuana (and this results was duly certified on December 3, 2014).
The second date is December 9, 2014 which is when President Obama signed an appropriation bill containing a provision from Rep. Andy Harris (R-MD) prohibiting the use of federal or local funds to “enact any law . . . reducing penalties associated with” any controlled substances.
Now comes the third date – February 28, 1801. That is the date that President John Adams signed the Organic Act placing the District of Columbia under the exclusive control of Congress. In 1973, Congress passed the Home Rule Act allowing the District the ability to elect a Mayor and City Council but providing that all laws enacted were subject to review and rejection by Congress during a review period of thirty (30) legislative days.
The final date is February 26, 2015. That was the last day of the review period and hence the law’s effective date since Congress took no action to override it.
The District contends it did not violate the Harris amendment since the law was already enacted when the President signed it into law. The House Committee on Government Oversight contends a District law is enacted only once the review period has ended and therefore even the transmittal of the law to Congress was unlawful. They have even suggested that the Mayor could be arrested for violating the Deficiency Act.
The Real Debate Part 1
While Congress and Washington Mayor Bowser debate the intricacies of when a District law is “enacted”, the prospect of legalized marijuana in the nation’s capitol should spur great interest and hopefully debate.
The debate over what our policy on marijuana should be is long overdue. Marijuana was criminalized and made a controlled substance in 1937. President Nixon’s National Commission on Marijuana and Drug Abuse recommended the decriminalizing of private possession of marijuana in 1972, but both Nixon and Congress rejected their recommendations.
Jump forward forty plus years and marijuana prosecutions now clog our courts and fill our prisons with estimates that the U.S. would save nearly $8 billion per year in costs by legalizing marijuana combined with revenue projections for the taxation of marijuana ranging from $6 to $100 billion per year.
The War of Drugs, like any other war, has created real societal costs that should be evaluated. This is especially true in Washington that has one of the highest marijuana arrest rates in the nation.
The Real Debate Part 2
Frequently in such a debate, there is the notion that the states are laboratories of democracy that should be able to experiment or test what solutions work best for their communities. Not so in the colonial city of Washington where Congress has over the years intervened to prevent the District from, among other things, extending health benefits to registered domestic partners, funding abortions, establishing medical marijuana dispensaries, experimenting with needle exchanges or lobbying for representation in Congress.
All this from a body in which it has no voting representation. Unlike Puerto Rico and other territories who also have no voting representation but whose residents pay no federal income tax, the District pays more in federal taxes than 19 states and the most of any state on a per capita basis.
The U.N. Human Rights Commission and the Organization of American States’ Commission on Human Rights each have found that the denial of voting rights to Washingtonians is a violation of the United States’ human rights obligations under international law. Nonetheless, recent efforts to grant the District voting representation in Congress or even budgetary autonomy as to non-federal funds have gone nowhere.
So today Washingtonians play the familiar role of the pawn, this time in the resistance to updating our marijuana laws. Hopefully activists who engage to protect Washingtonian’s right of self determination will see the bigger picture and recognize that it is not just our marijuana laws that are seriously antiquated.
While the Boston Tea Party was a spark that ended taxation without representation for most Americans, maybe it will be a different leaf that finally brings it to an end in Washington.
Bennet Kelley is a former Washington resident who has studied and written extensively on the history of Washington, D.C. home rule.
Washington’s Truly Offensive Name (July 4, 2014)
Let’s Bring the American Revolution to Washington (July 4, 2013)
Two Centuries of Disenfranchisement in DC (March 1, 2013)
My interview with DC Delegate Eleanor Holmes Norton (February 26, 2013)