President Obama has again endorsed the rights of individual states — and, in the case of Washington, D.C., a federal territory — to self-determine whether marijuana should be legal within their state boundaries. President Obama’s 2016 federal budget plan, released this week, moves D.C. marijuana legalization forward with one word.
Specifically, President Obama’s proposed 2016 budget mirrors Congress’s enacted 2015 budget with the exception of one added word: Federal. Below is Section 809 of Congress’s 2015 budget with President’s Obama’s proposed inclusion of the word “Federal” for the 2016 budget, underlined and in bold font:
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 Federal 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.
To understand the importance of the addition of the word “Federal” in President Obama’s draft budget as it relates to D.C. marijuana legalization efforts, we should first briefly review the D.C. voter initiative on marijuana legalization.
Voters said “Yes.” As we’ve previously wrote, in November, District residents passed Initiative 71 with almost 65% of the vote. I-71 allows individuals 21 and older to legally possess, use, purchase, or transport up to two ounces of marijuana within the District. I-71 also permits individuals to legally possess, grow, and harvest up to six marijuana plants in their principal residence, with no more than three flowering plants at one time.
Congress said “No.” The U.S. Congress, which has budgetary oversight over the District, chilled I-71’s implementation in December. Certain Republican U.S. Congressional members included a rider in the U.S. federal spending bill that these members claim defunds any efforts to implement I-71.
D.C. Asserts “Yes.” Unmoved by U.S. Congressman Andy Harris’s assertions that the D.C. Council would be in violation of Congress if it transmitted I-71, I-71 was transmitted to Congress on January 13th. The D.C. Council’s transmission of I-71 is important because the transmission of D.C. legislation to Congress starts a 30-day Congressional review period which requires an affirmative Congressional vote on the measure to deny its implementation. If Congress doesn’t vote, the measure becomes law.
Whether the District was authorized to submit I-71 to Congress, and whether Congress must vote on the proposed legislation, are some of the issues currently subject to debate and which may ultimately be subject to lawsuits. Congressional members have stated that I-71 was suspended as a result of the rider that was included in December’s federal budget deal. The District views I-71 as outside Congress’s federal budget rider because I-71 was fully implemented on December 3, 2014, before the U.S. budget spending bill was approved. Consequently, D.C. leaders argue that the U.S. budget provisions do not apply to I-71 which was already an enacted law. In his transmittal letter to Congress, D.C. Council Chairman Mendelson emphasized this position by stating that I-71 was “initiated by the voters of the District of Columbia … and adopted on November 4, 2014. The measure was enacted upon certification by the District of Columbia Board of Elections on December 3, 2014.”
The President Echoes the Voters and the District – “Yes!” In revising his 2016 budget to include only one additional word from Congress’s 2015 budget, President Obama has taken a significant step in advocating full marijuana legalization in the District. If President Obama’s 2016 budgetary provision concerning D.C. marijuana legislation survives Congressional committee review and an ultimate Congressional vote (and these are big “ifs”), the District would be allowed to use non-federal funds to enact laws and regulations “to legalize . . . the possession, use, or distribution” of marijuana. In short, the District could develop a legal marijuana distribution market and regulatory scheme similar to Colorado or Washington State.
The District, Congress, and the President have all now entered the fray over I-71 implementation and the future of legalized marijuana in Washington, D.C. Each appears to be posturing and determining whether and how this issue could play out in the courts, the press, and the public. We can anticipate that each will engage in further strategically timed statements and press releases as we await Congress’s 30-day deadline for responding to I-71’s transmittal. The President’s budget provides an important lesson for all sides in this matter: every word matters.