Fortunately, the actual legislative language of the rider leaves open several options Obama could use undo the terrible damage he helped inflict. The rider reads:
“None of the funds contained in this Act may be used 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 under the Controlled Substances Act (21 U.S.C. 801 et seq.) or any tetrahydrocannabinols derivative for recreational purposes.“
1) How do we define “enacted?”
It is the position of the D.C.’s non-voting Congresswoman, Eleanor Norton Holmes (D), that Initiative 71 was officially “enacted” last month when the voters overwhelmingly approve it, so no funds will actually need to be spent next year to “enact” it. This means the initiative can be sent to Congressional review in January and implemented after it clears that hurdle. If Congress wanted to prevent D.C. from spending money to implement legalization they should have used the word “implement.”
This could result in a legal change, but if both the D.C. Council and Obama administration endorse this interruption it is unlikely to be overturned.
The first option would allow the initiative to go forward legalizing limited possession and home cultivation, but still prevent the D.C. Council from adopting a bill to tax and regulate recreational marijuana. There are also ways around that though.
2) Obama can simply reschedule marijuana any time.
Notice the rider does not actually refer to marijuana. Instead it refers to “any schedule I substance under the Controlled Substances Act (21 U.S.C. 801 et seq.) or any tetrahydrocannabinols derivative.”
While marijuana is currently listed as schedule I, this scheduling is completely inappropriate and can be corrected any time by the Obama administration on their own. The Controlled Substance Act explicitly gives the Attorney General the power and responsibility to reschedule any drug based on the latest science. Even though the Obama administration frequently reschedules drugs without Congressional input, Eric Holder has so far refused to reschedule marijuana for purely political reasons.
If the Obama administration uses its power to move marijuana to schedule II or III, this legal impediment on D.C. taxing and regulating marijuana would theoretically be removed. Potentially there might still be a legal fight over whether raw marijuana would count as a tetrahydrocannabinols derivative, but one can argue that legal term is meant to apply only to newly discovered and potentially dangerous synthetic tetrahydrocannabinols derivatives which are often being sold as “incense.” Once again if both the D.C. Council and the Obama administration share this interpretation of the law any legal challenge is unlikely to succeed.
It is time for Obama to put his money where his mouth is. Obama has often publicly claimed to care about the principles like democracy, minority voting rights, and D.C. Statehood; but has failed to fight for them when it matters. Now he faces a clear and simple test to prove if his word means anything. If he actually believes in the importance of voting rights and the “principle of District home rule,” he should use his power to to make it happen.
Jon Walker is the author of After Legalization: Understanding the future of marijuana policy, on sale for just $0.99