Did the federal government accidentally legalize marijuana?

Washington, D.C.'s, laws might negate federal statuses

Article 1, Section 8 of the U.S. Constitution gives Congress exclusive jurisdiction over the District of Columbia. In 1973, Congress began delegating municipal powers to elected officials, including a mayor and city council (Home Rule). However, as Washington, D.C.’s legislature, Congress retained the right to overturn, modify, repeal and impose local rules at will.

In 1998, D.C. voters passed a medical marijuana referendum, but Congress didn’t allow it to be enacted until 2013. In 2014, voters approved recreational cannabis. Under the Home Rule, Congress had 30 days to strike down the initiative; when Congress failed to act, the measure took effect.

In just a few years, the U.S. House and Senate let D.C. legalize marijuana twice, in direct conflict with its own Controlled Substances Act, which was still in full force, labeling cannabis as a Schedule I drug with no current medicinal value, a high likelihood for abuse and so dangerous that possessing it constitutes a serious crime. Heroin and LSD are in this same category.

In fairness, Congress did try to undermine the recreational initiative by threatening to jail the D.C. mayor if she used federal funds to carry it out. But this action did not stop legalization. It just blocked the city council from imposing taxes and regulations. Ironically, this made D.C. the only place in America where “pot for fun” was allowed without any government oversight.

Meanwhile, in California, the U.S. attorney general was still prosecuting gravely ill cannabis patients who were acting in compliance with state law. It was the height of hypocrisy.

In the state/federal marijuana conflict, two sovereign governments have opposite regulations (marijuana is legal in California, but illegal under the federal Controlled Substances Act). Each side independently enforces its own rules, until it becomes “physically impossible” for a citizen to comply with both at once. At that point, the federal position supersedes, and the conflicting state law is ruled void. This is a rare occurrence, however, as it can spark an intergovernmental feud. Judges prefer to strain logic to accommodate both sides. The courts currently take the position that the opposite of “No, you can’t use marijuana” is “Yes, you must use marijuana,” rather than “Yes, you can.” Since no state forces its citizens to smoke and grow marijuana, the adverse laws can peacefully coexist. Of course, this begs the real question, which is whether people smoking marijuana can comply with both at once. Since they can’t, the entire premise is a sham.

But this parlor trick doesn’t apply to D.C. because it’s not a state. Nor does it apply to Congress as D.C.’s legislature. For more than 100 years, the U.S. Supreme Court, which is ultimately responsible for interpreting Article 1, Section 8, has ruled that D.C. regulations of this type are an extension of general federal law — which cannot conflict with itself and must apply equally throughout the nation. This seems pretty straightforward. Therefore, the marijuana privileges Congress allowed in D.C. were bestowed on all Americans.

Federal statutes must be consistent and describe criminal behavior with absolute clarity. They cannot confuse people about what’s legal, and then exact punishment if they guess wrong. Read side-by-side, the D.C./Controlled Substances Act codes collectively prohibit and permit the same cannabis-related activities, in the same place, at the same time. Until Congress clarifies its intent, there should be no Controlled Substances Act prosecutions for violations allowed by the D.C. rules anywhere in the country.

President-elect Trump has previously called marijuana a states’ rights issue, but questions remain about whether he intend to keep his word now that he’s elected.

If politicians don’t fix their mess, the U.S. Supreme Court should find there was an “implied repeal.” Under this doctrine, when a new congressional act directly conflicts with an older one, the older one is automatically nullified. This concept, however, is disfavored. The high court doesn’t like to assume what Congress was thinking. So before invoking this tenet, judges will look for every reasonable way to carve out an exception and let the two acts coexist. Such latitude is impossible here; the D.C. rules give local residents federal marijuana rights that are still banned in the states. Implied repeal is the only way to resolve the contradiction.

If neither of these work, the president should just refuse to prosecute — attorney general be damned. The Supreme Court has repeatedly affirmed “whether to prosecute and what charge to file or bring before a grand jury are decisions that generally rest in the prosecutor’s discretion.”

By all accounts, Congress has granted the national right to possess, use and grow marijuana in accordance with D.C. law. Of course, when push comes to shove, it’s likely the politicians will cry foul, the U.S. Supreme Court will let Congress off the hook, and Donald Trump will never even figure out what prosecutorial discretion is. So, while there’s a moral victory here, don’t hold your breath until it becomes official.


Michael Heicklen is an attorney who concentrates on cannabis-related business and family matters. He can be reached at heicklenlaw@gmail.com. The preceding opinions are those of its author and do not constitute legal advice. No court has upheld these arguments, and until one does, they have no force or effect. If you are facing federal marijuana charges, consult with an attorney.



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