Mayor Muriel Bowser: Congress hasn’t blocked DC marijuana legalization

Advocates say marijuana legalization, which passed as a ballot initiative in November, still stands because it was enacted before Congress intervened. The initiative legalized the possession, growing, and gifting of small amounts of marijuana, but not sales.

The congressional spending deal that tried to block legalization says the DC government may not spend local or federal funds to “enact” a law, rule, or regulation that reduces penalties on marijuana. The idea was to prevent DC Council from transmitting the voter-approved initiative to Congress for approval, as required by federal law, since it would take the city council’s time and resources to do so.

Advocates argue DC voters already enacted the legalization initiative back in November. Under this argument, DC Council wouldn’t be spending its time and resources to enact the initiative by sending it to Congress for a mandatory 30-day review period; it would be merely carrying out an initiative already enacted by voters.

DC Mayor Muriel Bowser embraced this stance on Meet the Press on Sunday, when she said DC’s marijuana legalization initiative is “self-enacting.” Previously, DC Attorney General Karl Racine and Congresswoman Eleanor Norton, DC’s nonvoting delegate in the House of Representatives, voiced similar views.

“Now, we think Initiative 71 was self-enacting,” Bowser said. “Our legislators are going to send it up to the Congress in January.”

House Republicans, however, say their intent is very clear. The House Appropriations Committee’s summary of the spending deal clearly states the bill “prohibits both federal and local funds from being used to implement a referendum legalizing recreational marijuana use in the District.”

If DC Council were to implement the legalization initiative, it’s unclear who would or could sue the local government to enforce the spending deal.

Dan Riffle, an attorney and marijuana legalization advocate, said the Department of Justice would have the legal standing to sue. But the Obama administration has opposed congressional attempts to block legalization in DC and asked federal prosecutors to let states experiment with legalization. The Justice Department could also accept the argument that legalization was enacted in November.

If that proves to be the case, Congress could try to sue. But whether Congress has the ability to sue has always been a thorny legal issue. Courts have, for example, severely limited federal lawmakers’ ability to file a lawsuit against the president.

David Rivkin, a constitutional litigator who served at the Department of Justice and the White House Counsel’s Office under Presidents Ronald Reagan and George HW Bush, said Congress may have the ability to sue in this case. But he acknowledged the issue would be complicated by questions about whether Congress is being injured as an institution by DC’s actions or whether there are any private plaintiffs that could show injury and step in.

”The situation here is complicated by the fact that, given DC’s unique status — with Congress having delegated to DC certain authorities under the self-rule act — the action by the DC Council is not a constitutional violation; it is, essentially, a statutory violation, akin to a federal agency or department acting in violation of its statutory authority,” Rivkin wrote in an email. “All in all, the possible congressional lawsuit against the DC Council would be more complicated than congressional challenges against the Obama administration’s re-writes of the Affordable Care Act or Immigration and Naturalization Act.”

Despite the push from advocates, it’s anyone’s guess whether DC Council will attempt to defy the will of Congress and implement marijuana legalization this upcoming January.

But support from the mayor, the head of the city government, and the attorney general, who’s essentially the city’s lawyer, gives DC Council some political and legal cover if they choose to defy Congress.

It’s possible the threat of congressional action outside of litigation, particularly restrictions on DC’s budget, could prove too much for local leaders.

Any potential loophole to the spending deal would only allow DC Council to implement the voter-approved initiative, which legalizes the possession, growing, and gifting of small amounts of pot. There’s no question the spending deal would block any attempt by DC Council to implement the legal sales of marijuana, since that would cost money and Congress can place budgetary restrictions on that.

Read more: 6 questions about Washington, DC, statehood you were too disenfranchised to ask.