Blog Post #22: Regulatory Uncertainty Surrounding Legalization of Marijuana

By Jed H. D’Abravanel

The District of Columbia’s (D.C.) peculiar legal status as the seat of the nation’s government has long acted to restrict the ability of its residents to express their popular sovereignty, and constitutional rights to both representation and legislative self determination.[1] Thus, the wishes of D.C.’s residents have long differed from the expressed realities of the laws enforced here.[2] D.C. is familiar with Congressional interference in nationally controversial local issues, such as D.C.’s assault weapon ban.[3] While the D.C. Home Rule Act of 1973 granted the area the ability to govern itself, Congress retained strong oversight functions for D.C. in the Act.[4] Congress retained the ability to directly legislate for D.C., control the approval of its budget, and retain a mechanism through which to approve or veto all actions of the D.C. Council.[5]

Today, D.C. is confronted with a Congress that does not accept the wishes of its residents regarding the status of marijuana. In February 2014, the D.C. Council voted to decriminalize marijuana up to one ounce, and lowered possession of marijuana to a civil offense punishable by a $25 fine.[6] In November 2014, 64% of the population voted to legalize the possession and consumption of marijuana in D.C. under Initiative 71.[7]Congress then failed to veto Initiative 71 within the 30-day statutory review period provided for by the D.C. Home Rule Act when the D.C. Council presented it to Congress.[8] Congress instead acted pursuant to its budgetary powers to prevent D.C. from using any funding to establish a regulatory framework.[9] It did so by passing a rider to the 2015 Appropriations Bill to prevent D.C. from “enact[ing] any law, rule, or regulation to legalize or otherwise reduce penalties” for marijuana possession or consumption.[10] D.C. interpreted the rider to be effective only prospectively, thus allowing for the legalization of marijuana under Initiative 71.[11] However, this congressional act prevented the D.C. Council from considering further legislation to provide a regulatory framework for marijuana.[12] Thus, D.C. is left in legal and regulatory limbo instead of enjoying the benefits from the legalization of marijuana envisioned by those who supported the legalization of marijuana here in the first place.[13]

This legal limbo presents serious public policy issues for D.C. As Initiative 71 succeeded in legalizing marijuana, all criminal and civil penalties for small-scale marijuana possession, transfer, and cultivation of up to 6 plants for personal use by those 21 years of age and older have been eliminated.[14] The decriminalization and legalization of marijuana production and consumption are a far cry from creating a regulatory framework to allow the laws to be followed in the District, and provide economic opportunities for area businesses.[15] This lack of regulatory framework is being cited by the D.C. Council to provide the Council with the necessary authority to address public safety or health needs by using contingency funds from the previous year’s budget.[16] By citing the uncertainty and possible public health risks created by the unregulated use, and possible sale of marijuana within D.C., the Council is claiming to be able to authorize the use of emergency funding to create regulatory structures.[17] While the D.C. Council’s budgetary loophole may work to create a temporary framework, so long as Congress and the D.C. Council have opposing views regarding the legalization of marijuana, residents, and area businesses will be left in legal and regulatory limbo precisely because a regulatory framework has not been approved by Congress, the final arbiter in D.C. legislation.

[1] See Jamin B. Raskin, Is this America? The District of Columbia and the Right to Vote, 34 Harv. C.R.-C.L. L. Rev. 39, 40-43, 45-47 (1999) (discussing the longstanding belief that the District of Columbia’s unique constitutional status eliminates the expression of popular sovereignty in the District through lack of both state and federal level legislative representation).

[2] See Jamin B. Raskin, Lawful Disenfranchisement – America’s Structural Democracy Deficit, 32 Human Rights 12, 13 (2005) (“Despite granting residents home rule in 1973, Congress has never hesitated to overturn and replace the local government on hot button issues . . . .”).

[3] H. Amdt. 1084, HR 5016, 113th Cong. (2014) (un-enacted amendment proposing to prevent the use of D.C. funds to prohibit any firearms legislation exceeding federal law); see also Raskin supra note 2 (discussing congressional legislative vetoes on controversial District Laws).

[4] D.C. Code § 1-206.01 (2014).

[5] Id.

[6] D.C. Code § 48-1201 (2014). See generally Aaron C. Davis, D.C. Council Weakens Bill to Decriminalize Marijuana, Keeps Smoking in Public a Crime, Wash. Post, (Feb. 4, 2014),http://www.washingtonpost.com/local/dc-politics/dc-council-weakens-bill-to-decriminalize-marijuana/2014/02/04/508eaabe-8d27-11e3-95dd-36ff657a4dae_story.html.

[7] See D.C. Board of Elections November 2014 General Elections Results,https://www.dcboee.org/election_info/election_results/2014/November-4-General-Election (last visited Mar. 22, 2015).

[8] Perry Stein, Everything you Need to Know to Stay Out of Jail Now that Pot is Legal in D.C., Wash. Post, (Feb. 25, 2014),http://www.washingtonpost.com/news/local/wp/2015/02/24/everything-you-need-to-know-to-stay-out-of-jail-when-pot-is-legal-in-d-c/. See generally D.C. Code § 1-206.02 (2014) (discussing the statutory requirements for approval or denial of an action in the District of Columbia).

[9] D.C. Code § 1-206.03(a) (2014).

[10] Stein, supra note 8.

[11] See District of Colombia Office of the Attorney General, Frequently Asked Questions on Initiative 71 (Marijuana Legalization), the Marijuana Decriminalization Act, And Marijuana Possession in the District of Colombia (2015),http://oag.dc.gov/sites/default/files/dc/sites/oag/page_content/attachments/Initiative_71_FAQs_Document_FINAL_REVISED3.pdf (last visited Mar. 22, 2015) (“The rider did not overrule Initiative 71, because the initiative was enacted prior to the rider . . . And the rider is not retroactive.”).

[12] Stein, supra note 8.

[13] See Drug Policy Alliance, Status Report: Marijuana Legalization in Colorado After One Year of Retail Sales and Two Years of Decriminalization (2015),http://www.drugpolicy.org/sites/default/files/Colorado_Marijuana_Legalization_One_Year_Status_Report.pdf (last visited Mar. 22, 2015) (discussing the benefits of marijuana decriminalization and legalization to Colorado).

[14] See Washington D.C. Metropolitan Police Department, What’s New in the Metropolitan Police Department, (Feb. 27, 2015), http://mpdc.dc.gov/sites/default/files/dc/sites/mpdc/release_content/attachments/wn_150227.pdf (last visited Mar. 22, 2015).

[15] See Perry Stein, Washington’s Pot Legalization Draws Interest of Complementary Businesses, Wash. Post, (Mar. 15, 2015) (highlighting the uncertainty businesses feel in taking advantage of the opportunities offered by the legalization of marijuana in the District due to regulatory limbo).

[16] D.C. Code § 1-204.50(a) (2014).

[17] Id.