A Way Forward on D.C. Marijuana Regulation

You may have heard that the D.C. Council held a roundtable today on how to regulate and tax legal marijuana in the city. The hearing was designed to help implement D.C. voters’ overwhelming approval of Initiative 71 last November. That initiative legalizes possession of small amounts of marijuana under District law

However, you also probably know that due to a rider in the appropriations act Congress recently passed, the District is prohibited from using any fiscal year 2015 funds from enacting any law that would reduce penalties regarding marijuana. In letters to the Council over the past week, the District’s Attorney General and the Council’s General Counsel agreed that this rider prohibits the Council from adopting any further legislation regulating legal marijuana.

It’s unjust that Congress might preclude the District’s locally-elected leaders from taking action to implement the will of District voters on this local issue.

Fortunately, there’s a way that the District can implement the Council’s and the people’s preferences on this matter, and there’s ample precedent for that implementation.

As we pointed out last December, the District can simply use already-appropriated reserve funds to pay for any further steps related to marijuana legalization, including enacting a system for taxation and regulation. This is because the recent congressional appropriation rider applies only to the use of the District’s FY15 funds. But since reserve funds have already been appropriated in prior years, the District can use them now take any steps necessary to fully enact a regime governing legal marijuana.

This is exactly what we urged the District to do during the October 2013 federal government shutdown. Then-Attorney General Irv Nathan confirmed the appropriateness of that approach in a legal opinion, and the District was able to stay open using its reserves. As his opinion points out, the Mayor and the CFO have the authority to use those reserves to pay for activities not authorized in a given fiscal year, provided that the activities were unexpected at the time the budget was drawn up, or are nonrecurring. That requirement is met with regard to the marijuana legislation introduced earlier this year, just as it was with regard to the shutdown.

We do not think Congress should attempt to dictate how the District spends its own locally-raised tax dollars. But when Congress does so, we think District leaders should use all tools at their disposal to protect the will of District voters. Here, the District’s reserves are an available tool to do that, and we hope the Mayor and CFO will use it.


Leave a Reply