Pubdate: Sat, 10 Jan 2015
Source: Honolulu Star-Advertiser (HI)
Copyright: 2015 Star Advertiser
Contact: 
http://www.staradvertiser.com/info/Star-Advertiser_Letter_to_the_Editor.html
Website: http://www.staradvertiser.com/
Details: http://www.mapinc.org/media/5154
Author: Jacob Sullum, is a senior editor at Reason magazine.

3 MISSING WORDS TRIP UP EFFORT TO SCUTTLE POT IN D.C.

Harold Rogers, the Kentucky Republican who chairs the House 
Appropriations Committee, says a rider in the omnibus spending bill 
that Congress enacted last month stops the District of Columbia from 
legalizing marijuana.

Eleanor Holmes Norton, the District's congressional delegate, disagrees.

So do D.C. Mayor Muriel Bowser, D.C. Council Chairman Phil Mendelson 
and D.C. Attorney General Karl Racine.

Surprisingly, given the sway that Congress has over D.C., it looks 
like Rogers will lose this argument, and marijuana will soon be legal 
in the nation's capital.

Rogers' disadvantage reflects the shifting politics of marijuana 
legalization, which have left pot prohibitionists in a weaker 
position than ever before.

The legal dispute between Rogers and D.C. officials comes down to 
three missing words.

The appropriations bill bars the District from using "funds contained 
in this act" 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."

Originally, the rider, introduced by Rep. Andy Harris, R-Md., said 
"enact or carry out," but the latter three words were stricken during 
negotiations with Democrats.

Norton et al. say that change means the rider does not override 
Initiative 71, the marijuana legalization measure that D.C. voters 
overwhelmingly approved in November, because the initiative has 
already been enacted.

D.C. officials seem to have a pretty solid argument, since Initiative 
71, which eliminates penalties for marijuana possession, sharing and 
home cultivation, does not require any additional legislation to take effect.

Under the District of Columbia Home Rule Act, the initiative takes 
effect automatically unless Congress approves a joint resolution 
rejecting it no later than 30 legislative days after Mendelson 
submits it for review, which he plans to do this month.

If a resolution of approval is passed and signed by the president 
before the review period ends, the resolution "shall be deemed to 
have repealed" the initiative.

A law cannot be repealed unless it has already been enacted.

Harris claims his rider "prevents the ultimate enactment of the 
ballot initiative." But according to Walter Smith, executive director 
of the D.C. Appleseed Center for Law and Justice, it is "highly 
unlikely" that Harris will get a chance to make that argument in court.

"I think no one's going to have standing to bring a lawsuit here," 
says Smith, who notes that the courts tend to look askance at 
requests by members of Congress to resolve disputes like this one, 
partly because legislators can always clarify things with new legislation.

"The courts would, I think, be very reluctant to step in and litigate 
something that could be fixed legislatively," he says.

Such a legislative fix may be hard to manage, however. The most 
straightforward approach - a resolution of disapproval - is unlikely 
to get through the House and Senate within 30 legislative days, let 
alone be signed by a president who opposes congressional meddling 
with the District's marijuana policies.

The prospects for any other bill that requires a separate vote look 
pretty dim, as well. Harris managed to get his rider enacted only by 
slipping it into a mustpass spending bill at the end of a legislative session.

By contrast, an amendment in the same spending bill aimed at 
preventing federal interference with medical marijuana laws - 
including the District's - passed the House last May with support 
from 219 members, including 49 Republicans. That suggests Harris 
could not count on support from his fellow Republicans if he tries to 
reverse Initiative 71 with new legislation.

James Jones, communications director at D.C. Vote, a group that 
supports greater autonomy for the District, notes that Harris must 
contend with Republicans' avowed preference for federalism and local control.

"There's a strong element of their own party that thinks the states 
should determine this policy," he says.

Furthermore, Republicans are aware of polls indicating that most 
Americans support marijuana legalization.

"This issue is moving quickly nationwide," Jones says. "The 
Republicans don't want to get on the wrong side of it."
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MAP posted-by: Jay Bergstrom