Let freedom ring in Washington DC!

Today Vox reports that DC’s Attorney General, Karl Racine, has stated that his reading of the spending bill agrees with Congresswoman Eleanor Norton, DC’s nonvoting delegate to the House of Representatives, that the new spending bill will not stop the District from implementing the voter-approved Initiative 71, which legalizes possession of cannabis as well as “grow and give” distribution but not sales. House Republicans, meanwhile, say the intent of Congress is very clear; the House Appropriations Committee’s summary of the spending deal clearly states that the bill “prohibits both federal and local funds from being used to implement a referendum legalizing recreational marijuana use in the District.”

So whom shall we believe? Well my view is that we should turn to the actual text of the bill, and see what that says. The pertinent part of the bill reads as follows:

SEC. 809. (a) None of the Federal funds contained in this Act may be used to enact or carry out any law, rule, or regulation to legalize or otherwise reduce penalties associated with the possession, use, or distribution of any schedule I substance under the Controlled Substances Act (21 U.S.C. 801 et seq.) or any tetrahydrocannabinols derivative.

(b) None of the funds contained in this Act may be used 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 under the Controlled Substances Act (21 U.S.C. 801 et seq.) or any tetrahydrocannabinols derivative for recreational purposes.

At first glance, the two paragraphs sound so similar that they seem redundant. But there are important differences, and a careful re-reading of the bill will tease them out. To whit:

  1. §809(a) specifies “[n]one of the Federal funds” while §809(b) just says “None of the funds” contained in the Act. So only §809(b) pertains to “local” funds.
  2. §809(a) says “used to enact or carry out” while 809(b) says “used to enact”, which strongly implies that local funds can be used to “carry out” a legalization bill that has already been enacted (such as Initiative 71, to pick an example at random). Any judge will find the fact that §809(a) contains the words “or carry out” while §809(b) does not to be extremely significant in interpreting the bill.
  3. §809(b) specifies “for recreational purposes” while 809(a) does not specify which purposes are in scope (so §809(a) would prevent the district from using federal funds to ease up on cannabis restrictions for any reason, be they recreational, medical, or religious).

Although local funds can be used to enact or carry out cannabis laws that are not for recreational purposes as per (a), as per (b) no District funds can be used to enact recreational cannabis legislation. However local District funds can still be used to carry out recreational cannabis legislation that is already enacted. This would apparently include carrying out last summer’s decriminalization bill as well as carrying out Initiative 71. However the District council can not enact additional legislation to establish a tax and regulatory framework for legal sales until the bill expires in September. This may mean new laws will be blocked indefinitely as by then there will be a Republican majority in both of our Houses and they might continue kicking the rider forward year after year.

Since Initiative 71 was approved by voters I believe Homes Norton is correct to say that the law is enacted. The law must now be submitted to Congress for their review and if they pass a resolution rejecting the law (and if Obama signs it) then according to the US Constitution Initiative 71 will be deemed repealed. So one could convincingly argue (and I believe convince a court) that the remaining work to transmit the bill to Congress and to then implement it should Congress fail to stop it are all part of carrying it out, which can be legally done (but only with the District’s local funds).

Not only is this interpretation consistent with what some congressional aides were leaking to the press while the House/Senate compromise was being hammered out but it is the only explanation I can think of for even having these two similarly worded paragraphs in the first place.

Interestingly, Racine’s interpretation may never be tested in court. The only party with clear standing to intervene is the Justice Department, which falls under the President’s purview. The President has already announced that he supports the District’s right to self-rule. Meanwhile, the Congress appears to lack standing to sue. They would have to find an injured party on whose behalf they can file suit. The problem with that approach of course is that nobody is injured by Initiative 71. Except maybe the Representative from Maryland, Andrew Harris, who has come out of this looking like a complete idiot.

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