DC’s New Attorney General Says Congress Didn’t Stop Marijuana Initiative

Karl Racine, who starting next month will be D.C.’s first elected attorney general, believes the recently approved marijuana legalization initiative can move forward. He told the Washington Post:

“We think Initiative 71 was basically self-enacted, just as the congresswoman does,” Racine said. “And we think there’s good support for that position, and we’re going to support that position.”

At issue is an attempt by congressional Republicans to stop the measure approved overwhelmingly by DC voters. While the 650,000 residents of D.C. have no voting representation in Congress, Congress has the ability to override any local D.C. law.

House Republicans abused this power by adding a rider to the recent omnibus funding law that prevents D.C. from spending any money to “enact” new laws regarding schedule I drugs. However, the exact language they used is very important. The major political leaders in D.C.  are claiming the initiative was technically “enacted” when it was approved by voters in November, so funds would only be spent to “implement” it. This means it can move forward without violating the new federal law.

How exactly to define the term “enact” when it comes to the process of adopting new laws in D.C. is not a simple legal question, but if the D.C. Council, the new D.C. Attorney General, and potentially the Obama administration all adopt this same definition it would be very difficult for House Republicans to get the courts to stop it.

Jon Walker is the author of After Legalization: Understanding the future of marijuana policy, on sale for just $0.99


Sky Stubbornly Refuses to Fall in Colorado

I’ve spent every Christmas for the past decade in Colorado with my grandparents, and this year I noticed it was still the same beautiful state it has always been, even though recreational marijuana has now legally been for sale for a full year. The closest thing to the sky falling was a holiday snow storm, giving us a wonderful white Christmas.

Besides seeing a few adult-use marijuana stores, which were mostly tucked away in basement locations, Colorado seemed basically the same as it has in years past. It hadn’t become a lawless wasteland or a place overrun with drugged out zombies. It was effectively the same great state, except now the small segment of adults who choose to consume marijuana have some regulated stores where they can legally buy it and pay taxes on it.

When I asked my grandparents about legal marijuana, they told me it has had basically zero impact on their lives. This is probably why a recent SurveyUSA poll found that if Amendment 64 was put back on the ballot the residents of Colorado would vote for it again.

Elsewhere in the country our states are still spending billions of dollars arresting hundreds of thousands of people for marijuana to effectively prevent their states from being more like Colorado, yet things are going very well in Colorado. In fact, Americans are voting with their feet for Colorado. It currently is the fourth fastest-growing state in the country.

Photo of mountains in Colorado by Jon Walker

Jon Walker is the author of After Legalization: Understanding the future of marijuana policy, on sale for just $0.99

Anti-Pot Congressmen Indirectly Admit Obama Has a Way to Let DC Legalize Marijuana

Rep. Andy Harris (R-MD) is the anti-pot crusader who has been working diligently to undermine democracy in the District of Columbia to try to stop local marijuana reform, but he may have accidentally validated arguments that President Obama has the power to easily undo his efforts. In the Washington Post he wrote an op-ed with Rep. Joe Pitts (R-PA) defending the rider they had inserted in the omnibus spending bill during backroom negotiations. Note these important lines:

Federal policy on marijuana is neither arbitrary nor set in stone. Proper procedures exist for changing the way that marijuana is regulated in the United States, but a ballot initiative in the federal district is not one of them. If the city were allowed to proceed, it would create legal chaos.

The classification of marijuana as a Schedule I controlled substance was made through a legal and scientific process established by Congress and administered by the Food and Drug Administration and the Drug Enforcement Agency. This classification means that the drug has a high potential for abuse, has no accepted medical use and cannot be used safely even under medical supervision. […]

The FDA and DEA have a process for analyzing such studies and approving controlled substances. We do not let any other substance become approved by ballot initiative. Every drug must be subject to the same strict scrutiny.

This is significant because the actual language of the rider only prohibits funds from being spent on enacting laws to legalize “any schedule I substance under the Controlled Substances Act (21 U.S.C. 801 et seq.) or any tetrahydrocannabinols derivative for recreational purposes.” Notably the rider doesn’t explicitly prohibit D.C. from using funds next year to legalize “marijuana,” which it easily could have done.

Harris seems to claim in his op-ed that his main legal problem with marijuana legalization in D.C. is that it would conflict with the federal government’s classification of marijuana as a schedule I drug. This implies the use of the term “any schedule I substance” instead of “marijuana” wasn’t sloppy drafting, but purposeful.

The Controlled Substance Act explicitly gives the Obama administration the power to unilaterally move marijuana to a lower schedule. So if the Obama administration moves marijuana to schedule II, III, or IV this rider would no longer impede the D.C. Council from moving forward with legalizing, taxing and regulating marijuana.

Even if the basic democratic rights of the 650,000 people living in D.C. weren’t at stake, the Obama administration should still reschedule marijuana now based purely on logic and the current science.

The federal government effectively acknowledged marijuana’s medical value years ago when it moved synthetic THC, the main ingredient of marijuana, to schedule II and later to schedule III. In addition, the way the government treats other plants that contain scheduled drugs is to put the plants in the same schedule as these pure drugs. For example opium poppy is schedule II along with morphine, and coca leaves are also in schedule II, just as cocaine.

If Obama actually opposes Congress interfering with D.C. home rule and trying to overturn local elections, it appears he has the power to fix it this time.

Jon Walker is the author of After Legalization: Understanding the future of marijuana policy, on sale for just $0.99

Omnibus Funding Bill is a Mixed Bag for Marijuana Reform

Late Saturday, the Senate approved an omnibus bill funding the federal government for the next year which contained two big provisions affecting marijuana policy. One very good and one very bad.

On the positive side: Protection for medical marijuana patients.

The funding bill contained a provision preventing the Department of Justice from using funds to arrest or prosecute medical marijuana patients or businesses that are in compliance with state medical marijuana laws. Combined with the Obama administration taking a more hands off approach with regard to local marijuana laws, this new provision should provide added peace of mind and a sense of stability to both patients and providers.

Having Congress not longer actively opposing medical marijuana is a big victory for the reform movement, but not a complete solution. The provision is only a short-term and incomplete fix. Medical marijuana is still technically illegal under federal law which will continue to cause issues with things like taxes for medical marijuana business. The provision also only applies to this one year funding bill.

On the negative side: Assault on the democratic rights of people living in the District of Columbia. 

Another provision buried in the omnibus bill is meant to prevent the District of Columbia from moving forward with marijuana legalization. Even though the 650,000 people living in D.C. are denied any vote in Congress, the federal government still has the ability to override any local laws. House Republican insisted on abusing this unfair and anti-democratic Constitutional power to try to stop marijuana legalization in D.C. despite it being adopted by almost 70 percent of District voters last month.

While President Obama claims to oppose the provision, he decided to effectively sacrifice the basic rights of 650,000 people to prevent government shutdown. If Obama really does oppose this assault on the very principles of democracy, he potentially has the power to give the D.C. government a legal way around this attempt to overturn the will of the voters. For example if Obama used his power to move marijuana to a lower schedule, this provision would technically no longer be an issue.

Jon Walker is the author of After Legalization: Understanding the future of marijuana policy, on sale for just $0.99

D.C. Marijuana Reform Offers a Real Test of Obama’s Principles

President Obama decided to actively lobby for the omnibus spending bill, which included a policy rider intended to block marijuana legalization in D.C. after the people of the District overwhelmingly voted for it. The rider was designed to strip the basic right of democratic self determination from the voters of D.C., effectively disenfranchising the predominately African-American and Hispanic people living in the District. The voting rights and democracy of some 650,000 people were basically sold out by Obama to possibly avoid a government shutdown fight.

Fortunately, the actual legislative language of the rider leaves open several options Obama could use to 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 D.C.’s non-voting Congresswoman, Eleanor Norton Holmes (D), that Initiative 71 was officially “enacted” last month when voters overwhelmingly approved 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 interpretation, it is unlikely to be overturned.

The first option would allow the initiative to go forward, legalizing limited possession and home cultivation, but still preventing 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 its 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 support for 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 he 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 make it happen.

Jon Walker is the author of After Legalization: Understanding the future of marijuana policy, on sale for just $0.99

Congress Plans to Overturn Democracy in D.C.

Last month, people living in the District of Columbia turned out to overwhelmingly vote in favor of marijuana legalization. But now Congress is potentially planning to abuse their power by stripping the district’s roughly 650,000 citizens of their basic democratic rights. In budget negotiations, Congressional Democrats are thinking of giving in to the Republicans’ demand to effectively overturn the recent initiative. From the Washington Post:

Tucked in the massive spending bill needed to prevent a federal government shutdown may be a measure sought by conservative House Republicans to halt marijuana legalization in the nation’s capital, advocates for the measure say.

Seven in 10 D.C. voters backed an initiative last month to follow Colorado and Washington state in legalizing marijuana.

But three people who have been closely tracking the issue say budget negotiators in the Democratic-controlled Senate have agreed to curb the popular measure. Congress has the power to do so by restricting city spending.

While the people of D.C. are denied any representation in Congress, the federal government has the unfair power to overturn any local law in the District. Over the years, Congress has used this power to force unpopular and often damaging policy changes on people living in our nation’s capital.

Overturning the will of the voters would not just be unfair, anti-democratic, and immoral; it would also be bad politics. National polls have found that the public overwhelmingly thinks marijuana’s legal status should be a local matter and not decided by Congress.

Democrats have the ability to stop this abuse of power if they want. The party still controls the Senate until next year and President Obama can veto any bill. In its veto threat against a previous spending bill, the White House stated, “the Administration strongly opposes the language in the bill preventing the District from using its own local funds to carry out locally-passed marijuana policies.”

More details should be known relatively shortly when the omnibus spending bill is actually released.

Update 3:00pm – The National Journal is reporting that the omnibus bill will allow D.C. to legalize personal possession and limited home cultivation of marijuana, but will prevent the District from creating a system of taxed and regulated recreational marijuana businesses. The D.C. Council had been working on a tax and regulate bill that they were planning to approve early next year. Negotiations around the omnibus are ongoing so thing could still change.

Jon Walker is the author of After Legalization: Understanding the future of marijuana policy, on sale for just $0.99

Public Overwhelmingly Wants Marijuana Legalization Left up to the States

While the country remains relatively split on whether they want marijuana to be legal, according a new poll from the Third Way, there is overwhelming consensus that the Congress should leave the issue up to the states.

On the basic question of whether nor not marijuana should be legal, the poll found 50 percent are in support and 47 percent are opposed. There is a strong partisan divide on legalization with roughly two-thirds of Democrats in favor but only a third of Republicans feel the same way.

Support for Legalization

When it comes to how the public wants Congress to deal with marijuana opinions, though, there is clearly bipartisan support for the federal government turning over control. From the Third Way:

  • 67% of voters said Congress should pass a bill giving states that have legalized marijuana a safe haven from federal marijuana laws, so long as they have a strong regulatory system, and;
  • When given an option of state or federal control, a clear majority of the electorate believes states should control and decide whether to legalize marijuana (60% state control compared to 34% federal government enforcement).

This is effectively how the federal government has dealt with alcohol for the last eight decades. The 21st amendment simply gave the states the option to permit alcohol sales or continue prohibition at the state level. Many states actually kept their alcohol prohibition going for several years after the 21st amendment was ratified.

Jon Walker is the author of After Legalization: Understanding the future of marijuana policy, on sale for just $0.99

What to do about Enhanced Marijuana Buds?

I recently came across a California product on Instagram that raises interesting policy questions. Kurupt’s MoonRock is marijuana buds that have been enhanced with hash oil and kief.

The government treats distilled alcohol differently from beer. It is subject to different tax rates and rules on where and when it can be sold.

Similarly, the state governments in Colorado and Washington State treated recreational marijuana flowers different than recreational marijuana concentrates. For example, the limits on how many grams of concentrate you can purchase is lower than it is for flowers.

So how should the government treat marijuana flowers that have been enhanced with concentrates?

Should the governments create new categories for enhanced buds? Should it use some enhancement threshold, like 5 percent by weight, to divide concentrates and flowers? Or should it create a simple rule that any amount of enhancement, no matter how minor, will automatically get any product categorized as a concentrate?

That final option seems the simplest and most likely solution that regulators will coalesce around, but I can think of some theoretical reasons why providing some flexibility might be called for.

Jon Walker is the author of After Legalization: Understanding the future of marijuana policy, on sale for just $0.99

Wyoming Residents Not Ready for Marijuana Legalization

Even though recreational marijuana has been legal for over two years for their neighbors to the south the people of Wyoming continue to oppose legalizing in their own state.

According to a new University of Wyoming poll, 35 percent of Wyoming residents support legalizing the personal use of marijuana for adults and 60 percent oppose. Support for legalization has grown 13 points since 2000 when the University’s previous poll found only 23 percent approved of legalizing marijuana.

The poll result isn’t too surprising given that given that Wyoming is the most conservative state in the country and will probably be one of the last states to embrace legalization.

While the people of Wyoming aren’t ready to support full legalization, they still want significant changes made to their current marijuana laws. According to the poll, 72 percent support allowing medical marijuana in their state. It also found that 62 percent believe that the penalty for simple marijuana shouldn’t include possible jail time.

Jon Walker is the author of After Legalization: Understanding the future of marijuana policy on sale for just $0.99

Legal Marijuana in the States is Undermining Illegal Marijuana in Mexico

marijuanaIn another sign that marijuana legalization in the United States is achieving the goals of the reform movement, there are indications that it is already undermining the illegal marijuana trade in Mexico. From NPR:

“Two or three years ago, a kilogram [2.2 pounds] of marijuana was worth $60 to $90,” says Nabor, a 24-year-old pot grower in the northwestern Mexican state of Sinaloa. “But now they’re paying us $30 to $40 a kilo. It’s a big difference. If the U.S. continues to legalize pot, they’ll run us into the ground.”

Legalization won’t immediately eliminate the black market, but it will steadily shrink it until it is only a shadow of what it used to be. This is what we saw after the end of alcohol prohibition in this country. International alcohol smuggling into the United States used to be a huge business funding significant criminal organizations, but re-legalizing alcohol sales eventually crippled that.

Jon Walker is the author of After Legalization: Understanding the future of marijuana policy on sale for just $0.99

Photo by Alexodus under Creative Commons license