The "cromnibus" spending bill that the House of Representatives passed Thursday is supposed to stop the marijuana legalization approved by D.C. voters in November, but Pelosi agrees with the congressional Democrats who say there's a loophole, her spokesman Drew Hammill told The Huffington Post on Friday.
That loophole arises from language that reads differently in two pieces of legislation -- the omnibus spending bill and a rider introduced by Rep. Andy Harris (R-Md.) and passed by the House. The text of the omnibus says that no funds “may be used to enact any law, rule, or regulation to legalize or otherwise reduce penalties" associated with the recreational use of drugs illegal under federal law. But where the omnibus says "enact," the Harris rider uses the phrase "carry out."
The question, then, is whether Initiative 71 -- which legalizes the possession of small amounts of marijuana in the District -- should be considered "enacted" as of last month's midterm elections, or whether "enacting" refers to the District Council transmitting the initiative to Congress for review, which has not yet happened.
The District's nonvoting representative in the House, Del. Eleanor Holmes Norton (D), has been a leading voice for the pot-friendly reading of the cromnibus.
"Based on a plain reading of the bill and principles of statutory interpretation, it is arguable that the rider does not block D.C. from carrying out its marijuana legalization initiative," Norton said on the House floor Thursday, one day after Rep. Jose Serrano (D-N.Y.), the top Democrat on the subcommittee that oversees the District, advanced the same view.
"Since it can be argued that D.C.’s Initiative 71 is self-executing and that it was enacted when an overwhelming majority of voters supported it in the November elections, this means that Section 809 [of the omnibus] should not apply to the ballot initiative," Serrano said Wednesday. “Based on this premise, the government of the District of Columbia should be able to move forward with the legalization of marijuana despite the rider included in the omnibus bill."
Harris, however, has said the anti-pot intentions of the cromnibus are clear.
Over Pelosi's strong objections, the House narrowly approved the spending bill Thursday evening, hours before the government would have shut down. Pelosi said negotiators should not have included a provision to undo part of the 2010 Wall Street reform legislation.
Last month, nearly 70 percent of voters in the nation’s capital approved of Initiative 71, which provides for the legalization of small amounts of marijuana for personal use while still banning sales. Dr. Malik Burnett, policy manager at the Drug Policy Alliance and vice chairman of the D.C. Cannabis Campaign, said that the will of the voters should be followed and legalization should go into effect. However, he acknowledged that if legalization does happen, Congress could then sue the District to block implementation of the new law, given Harris' anti-pot interpretation of the budget bill. But Burnett was skeptical that such a legal showdown would actually take place.
“Who will litigate this case on behalf of Congress?” Burnett said to HuffPost on Friday. “I don't know if they will find allies at the Justice Department for this effort."
"They also could try to pass a resolution of disapproval, but that seems politically difficult, especially in light of statements by the White House yesterday," he continued. "The President would ultimately need to sign the resolution, if it were even able to pass both the House and the Senate.”
Burnett was referring to remarks by White House press secretary Josh Earnest, who on Thursday said that the administration “does not believe that Congress should spend a lot of time interfering with the ability of citizens in the District of Columbia to make decisions related to how they should govern their community.”
Speaking to HuffPost on Friday, Marijuana Majority’s Tom Angell agreed with Burnett.
“I actually don't think [Congress would] take that dare,” Angell said. "Given that marijuana legalization is much, much more popular with voters than Congress is ... they're probably smart enough to realize that starting a national partisan fight about an issue with such widespread voter support could easily derail larger, unrelated parts of their agenda that they care much more about."
Although multiple states, as well as D.C., have legalized marijuana in some form, the plant remains banned by federal law.