Washington, D.C. Defending Marijuana Ballot Initiative

When Washington D.C. passed Ballot Initiative 71 legalizing marijuana use and possession in the District, it was poised to legalize recreational marijuana use. However, because the District is not a U.S. state, Congress must approve the ballot initiative before it can be implemented. In December, before the District even had an opportunity to submit the ballot initiative to Congress, Republican Congressional members included a rider provision in the December federal spending bill that may defund District efforts to implement Initiative 71.

Congress set the scene for a confrontation; the District has accepted the challenge. D.C. officials have publicly and aggressively stated that they will fight Congress’s attempts to interfere in District affairs by seeking to deny the District the funds it needs for Initiative 71, even though that initiative garnered around 65 percent of the vote.

Congress’s federal spending bill passed in December provides 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. (emphasis added)

Arguably, Section 809(b) above prohibits the District from using any funds to enact laws – specifically, Ballot Initiative 71 – that legalize recreational use or possession of recreational marijuana. This prohibition could include the minimal amount of funds necessary to pay for the enacted legislation’s transferal to Congress, a necessary step in the law’s enactment.

D.C. Government officials are considering different arguments and strategies to address the legal uncertainty created by the federal spending bill’s provisions. Democratic Mayor Muriel Bowser has stated that the District will explore every option for enforcing Initiative 71.

The District may have several such arguments. First, the District can argue that Ballot Initiative 71 was self-effecting when approved by voters on November 4, 2014 and that submission to the U.S. Congress for approval is a required formality that cannot be nullified by U.S. federal spending bill provisions.  Second, the District may argue that alternative funds, such as reserves and not funds under this year’s Congressional budget, may be used to fund the implementation of Initiative 71.

Such efforts by the District will likely involve lengthy legal challenges. Given the significance that I-71 implementation could have on disparate issues such as marijuana policy, the District’s continued fight for fiscal self-governance, and the continued call for D.C. statehood, District leaders are likely to see I-71 as a worthy battle.