Can Congress stop D.C.'s marijuana legalization?

Congress wants to shut down marijuana legalization in the District of Columbia before it starts, but the city might move ahead anyway.

The federal spending package being considered in the House of Representatives this week includes language meant to block D.C.’s new cannabis law, which passed with nearly 70 percent of the vote in November.

There’s a catch, though.

Some believe the law doesn’t require funding from Congress. The measure doesn’t permit sales or create a regulatory framework for marijuana — it simply allows for possession of small amounts of cannabis and plants.

According to Eleanor Holmes Norton, the District’s congressional delegate, the law is “self-executing,” meaning it doesn’t need help from Congress to go into effect. D.C. Mayor-elect Muriel Bowser appears to agree — she said yesterday the city could move ahead with legalization without a regulatory framework if Congress interfered.

The language in the spending bill says that D.C. can’t use federal money to “enact any law, rule, or regulation” that would legalize or reduce penalties around non-medical marijuana. But it’s possible the law could go forward without any federal funds, and that marijuana could simply be legal but not available for sale.

Jonathan Siegel, a professor at the George Washington University Law School, believes it’s the duty of the mayor-elect and city officials to fight for marijuana legalization, if that’s what residents want. However, he says, “If they ultimately conclude after trying their best, that they’ve run into this superior power that says, ‘Don’t do it,’ they have to obey the law.”

There’s another risk that comes with opposing Congress. Legislators might come back next year — when Republicans control the House and Senate — and pass an anti-marijuana bill with even more explicit language, according to Jerry Mayer, an associate professor in the School of Policy, Government and International Affairs at George Mason University.

“If they stand up to Congress on this point, I think it’s possible that Congress will write new legislation that makes it absolutely clear that marijuana is not legal, and I don’t see a great deal of enthusiasm among Democrats in Congress to resist Republicans on this point,” he said. “I would guess that’s the danger. If you stand up to them now, in the long run, you will lose once legislation gets through Congress.”

The decision wouldn’t be easy for the city’s elected officials, who need to weigh their relationship with Congress against the concerns of their constituents. “It’s a very tough choice for leadership in D.C. and it illustrates the natural paradox of D.C.’s quote unquote home role,” Mayer said. “It’s home rule with an asterisk.”

Ted Hesson was formerly the immigration editor at Fusion, covering the issue from Washington, D.C. He also writes about drug laws and (occasionally) baseball. On the side: guitars, urban biking, and fiction.