D.C. should determine the future of local marijuana legalization, not Congress

While marijuana enthusiasts across the country come down from the high of their annual holiday of April 20, buying and selling marijuana for recreational use remains illegal in the District. As some states move ahead with legalizing the sale of non-medical cannabis, the future of marijuana in D.C. is in a legal tug of war between local and federal authorities. Congressional oversight of the District’s pot policies has done more harm than good, and it’s time for D.C. to control this budding industry as it sees fit.

After a ballot initiative to legalize marijuana passed in 2014, Congress placed a provision known as the “Harris Rider” on budget legislation to prevent D.C. from using federal funds to “enact” any law, rule or regulation to further legalize or decriminalize recreational marijuana. This federal oversight hinges on the language of the rider, and its lack of clarity has complicated the status of legal medical marijuana and fueled a vast gray market of so-called “gifting” stores. As D.C. continues to push for its sovereignty, removing a single amendment from congressional budget legislation can break this impasse to an open, legal marijuana market and allow the District to enact and enforce its own popularly-mandated laws.

Nearly 70 percent of D.C. voters supported Initiative 71, the 2014 measure to allow residents older than 21 to possess up to two ounces of marijuana, smoke on private property, cultivate their own cannabis plants and possess pot-related paraphernalia. But that victory was short-lived when House Republicans amended a $1.1 trillion spending bill in December that year to prohibit the District from using its federal funding to effectively decriminalize or legalize marijuana. Because the text of the amendment stops D.C. from “enacting” new legislation and executing existing legislation, the city’s already “enacted” medical marijuana program and Initiative 71 became law in February 2015. Yet the possibility of any future legislation looks grim. 

Activists and organizers who rallied support for the ballot initiative noted that the proposed amendment’s timing soon after the city’s opposing vote was suspicious. “They’re allowing the overturning of an election,” Adam Eidinger, a chair of a pro-marijuana group supporting Initiative 71 at the time, told WAMU. The anti-legalization crowd weren’t just sore losers. They exposed the District’s democratic process as a sham in a paternalistic power grab by the federal government.

The situation the District now finds itself in mirrors prohibition a century ago – since personal possession and consumption remain legal, an array of companies have risen to fill that demand. The ability of medical cannabis patients to self certify their need and the expansion of the city’s application system for medical marijuana mean that medical marijuana dispensaries de facto sell cannabis for recreational use. While such dispensaries retain an air of legality, marijuana “gifting” stores, which sell customers products like T-shirts and drug paraphernalia with one ounce “gifts” of marijuana, skirt the edge of the law. 

The line between medical and recreational marijuana in the District is increasingly blurry. And as more and more private companies enter this highly profitable, unregulated industry, these clever, albeit illicit, operators are undercutting the city’s legal, tightly regulated medical marijuana dispensaries. But addressing the District’s gray market also means confronting the legacy of the war on drugs and its racist outcomes – many of the gifting stores that could form the future backbone of D.C.’s recreational cannabis industry are Black- or locally owned. 

Foreclosing on the possibility of legal, recreational marijuana has only furthered the development and increased the profits of such gifting stores. A D.C. Council meeting last month underscores just how difficult regulating the District’s gray market has become. The Council narrowly rejected an emergency bill meant to crack down on these “gifting” shops. The bill would have allowed the District to close these stores for 96 hours and impose $30,000 fines on vendors and their landlords. Despite a creative reading of Initiative 71 that allows them to operate, these businesses clearly have a commercial component to them.

At present, the District is in an unworkable regulatory scheme where possessing recreational marijuana is perfectly legal but buying it is ethically dubious if not an actual crime. Mayor Muriel Bowser’s repeated attempts to legalize recreational marijuana require removing the Harris Rider from this year’s congressional budget, but that’s unlikely. President Joe Biden included the rider in his $5.3 trillion budget proposal for 2023, and it’s doubtful the narrowly Democratic-controlled Congress will remove it without his support. And if the nominally pro-D.C. Democratic Party can’t deliver for the District, it’s even less likely that Republicans will remove the rider should they sweep the House and Senate this November.

Legalizing recreational cannabis will come with difficulties of its own. For all its benefits, critics are understandably concerned about increased rates of driving under the influence and the potential for children to readily access an adult-oriented product. That’s why regulating D.C.’s marijuana is so important – the Harris Rider is a noxious abuse of power, and one that reeks of contempt for the District’s voters and their decisions. Congress has dropped a problem into D.C.’s lap, and the city can’t solve it while the Harris Rider remains in the budget.

It’s high time that Congress lifts its heavy hand off the internal affairs of the District. Initiative 71 determined what D.C. – not Congress – wanted, and the result was a resounding yes in favor of legalization. Members of Congress don’t need to personally support marijuana legalization, but they ought to let the city decide for itself.

Ethan Benn, a sophomore majoring in journalism and mass communication, is an opinions columnist.

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