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Washington, DC on collision course with Congress over marijuana legalization

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Proponents for legal marijuana in the District of Columbia say they will fight on even as Congress on Monday sent a bill to the president’s desk that could neuter the city’s decision to legalize marijuana.

Although nearly 70% of Washington DC voters cast ballots in favor of legalizing marijuana in November, congressional Republicans included a provision in a mammoth and divisive spending bill last week that would seriously impede the city’s ability to do so. When President Obama signs the bill into law, the provision will forbid the city from spending taxpayer dollars to enact the initiative.

Advocates of the legalization campaign, known by its ballot name Initiative 71, argue that Republicans acted too late and too carelessly. Legally, the initiative was enacted when voters approved it, according to Adam Eidinger, chairman of the DC Cannabis Campaign.

Eidinger and others make a case that a technicality of two missing words gives them a chance: instead of saying DC cannot “enact or carry out” laws or regulations pertaining to marijuana, the budget provision only says “enact”. He says the voters enacted Initiative 71 on election day, and that nothing prevents the city from implementing the initiative in ways that do not cost money.

“Our initiative replaces the decriminalization law that’s already on the books,” Eidinger said, “and we don’t really require funds.” If Congress had acted before the November vote, he says, or had more comprehensively worded the provision, then his campaign would be in dire straits. Eidinger said he was confident the initiative, which he described as “self-executing”, would survive even if it went to court.

But the city must present the initiative to Congress, which will have 30 days to either veto the bill or allow it to stand. The city’s elected officials largely support the initiative but have been less outspoken and more cautious about moving forward. The city’s outspoken congressional delegate, Eleanor Holmes Norton, told the House that the rider “does not block DC from carrying out its marijuana legalization intiative”, and the city council chairman, Phil Mendelson, has said he will send Congress a formal bill for review, as he would after any other referendum vote.

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Unfortunately for the city, even the ministerial task of sending the initiative to Congress entails a tiny cost, meaning officials may have to find creative means, like reserve funds or donations, to avoid accusations that they violated the law.

Should 30 days pass without a congressional veto, it’s likely that DC residents could legally possess up two ounces of marijuana and cultivate at home up to three plants. Since these terms require no funding from the government, Eidinger claims, they remain untouched by Congress. If a court were to decide that Congress’s mandate is retroactive, however, then the law would rescind these terms along with the decriminalization in March of possessing small amounts of marijuana.

More comprehensive changes are “frozen”, with the city council and committees unable to spend time or money to write rules that allow or regulate the drug’s sale. Medical marijuana is legal in the capital, but “people cannot get on a plane, show ID and buy pot,” Eidinger admitted. “Their friend who lives in DC? They can totally hook them up” – so long as money doesn’t change hands.

Congress could reject the bill in a resolution of disapproval, though advocates are holding out hope that Republicans will be reluctant to take up an issue that divides its conservative and libertarian factions. Democrats proved reluctant to argue about it as they attempted desperately to mend rifts in their own party last week. The White House spokesman, Josh Earnest, told reporters the president maintains Congress should not “spend a lot of time interfering” in DC’s affairs.

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Republican representative Andy Harris, an opponent of legalization, will probably try to kill the initiative as best he can. His office released a statement saying he was glad Congress had voted “to protect our youth by preventing legalization in Washington DC”. Proponents of the initiative hope that Harris’s party can rein him back to a party line of oversight but smaller government.

The debate over the marijuana referendum is the latest in many new confrontations between the the Capitol and the capital. Washington DC’s residents have no vote in Congress, though it has one delegate and an elected government with some autonomy.

The constitution grants Congress jurisdiction over the city “in all cases whatsoever”, and lawmakers retain the right to revoke elected officials’ powers. Residents, including Barack Obama , have appropriated the revolutionary war refrain “no taxation without representation” to protest against the arrangement.

Despite his hopes, Eidinger foresees a long winter of fighting for the initiative and to rally allies in the city government. “If the DC government doesn’t stand up against the federal government, then I have to sue the DC government.”

guardian.co.uk © Guardian News and Media 2014

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