By: Randolph Critzer

The nation watched last November as the District of Columbia passed an ordinance legalizing marijuana for private use. The ordinance, passed by referendum, was voted into effect on November 4th, 2014, and went into effect this past February. This creates a bit of a confusing situation for D.C., which, unlike the other 4 jurisdictions that have legalized the drug, still sits at the end of Congress’s leash.

Voters in the District are well aware of the fact that they lack a viable voice in Congress (Hence the popular “No Taxation Without Representation” D.C. license plate), yet Congress is still ultimately in control of the city’s infrastructure, government, and budget. The battle over marijuana legalization presents yet another area where the District and Congress’s interests collide. Marijuana is still a schedule 1 controlled substance under federal law, yet here, in the seat of government for the federal system, it has been legalized by ballot initiative. There is seldom a clearer example of the voices of the people being pitted against the voices of the establishment than this.

Needless to say, this has created its fair share of enforcement peculiarities. For example, the District allows for marijuana to be grown, consumed, and shared, but not sold or distributed. In many circumstances, “what constitutes an exchange?” can be a hard question to answer. Congress has also disallowed the District to create a taxation scheme that might allow for the government to make a profit from marijuana use.

This draws into the discussion another, related issue: that of Legislative Tampering. It is a common enough occurrence in states where ballot initiatives exist for legislatures to attempt to override the initiative with reverse or controlling legislation. Common enough that in most of these states there are safeguards in place to protect legislation considered to have come “directly from the people.” In D.C., however, the situation is clearly more complicated.

Citizens in D.C. run the risk of their initiatives being tampered by not one, but two governmental bodies: the D.C. City Council, and the United States Congress. While the Council has been relatively supportive of the new referendum, and seeks to create a system to regulate and administer the new marijuana regime, the U.S. Congress has been decidedly less enthusiastic. Congress has empowered, through legislation, D.C. to administer its own laws, and in that respect, should theoretically be prevented from directly tampering with the initiative, but in D.C., initiatives don’t go into effect unless Congress fails to override them. Additionally, in D.C., as in Washington, Colorado, Oregon, and Alaska, the drug remains federally illegal and Congress still retains the right to tamper in other ways. It is this powerful Congressional oversight that prevented the original D.C. medical marijuana initiative from going into full effect for over a decade.

Whether Congress will ultimately respect the D.C. initiative or continue to block its implementation through budgetary and other constraints remains to be seen. No further related ballot initiatives have been proposed for the 2016 election. This referendum exemplifies D.C.’s continuing struggle to fight for the sovereignty that comes to other jurisdictions naturally. While the voice of the D.C. electorate is not always heard, in this instance it may end up being one of the key swaying points in the national debate over marijuana legalization. However, Congress’s authority to tamper so heavily with D.C. ballot initiatives is one more stitch in D.C.’s vast tapestry of Congressional misrepresentation.

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