Steve Duckett is a criminal defense attorney in Northern Virginia who represents clients charged with drug offenses as well as other criminal matters.
In the epic tug-of-war between federal and state comity, there is a third party: D.C.
While the District is the seat of the federal government, it is not a federal entity. However, it is also not a state and having to answer to federal oversight — like a child sibling watched by a big brother – can lead to conflict between federal and city-state powers.
The latest controversy between federal government and city surrounds Washington’s 2015 ballot initiative on marijuana legalization. The initiative passed with a resounding 64 percent majority, but the city faces backlash from the federal government over the autonomous law.
The problem facing the District dates back as far as the U.S. Constitution itself. In 1788, James Madison, writing for Federalist No. 43, argued against an autonomous capital city. Madison wrote of the “indispensable necessity of complete authority” over the District, and ever since the city’s charter has always been an ambiguous mix of city-state and federal authorities.
In the past two centuries, efforts have been made to grant the residents of the District wider latitude and independence from Congressional oversight and supervision. Article 1, Section 8 of the U.S. Constitution placed the unincorporated District under Congressional authority. Almost one hundred years later, legislation created a single municipal government.
When it was passed in 1973, the District of Columbia Home Rule Act again began chipping away at the power that Congress held over the city. Home rule advanced only slightly, with the passage of the act, but it did allow the city council to pass autonomous legislation with Congressional review. Ironically, the federal government forbids the city from passing an unbalanced local budget. Additionally, Congress continues to control Washington, D.C.’s fiscal independence.
In terms of rights, District residents were unable to vote in presidential elections until 1963. We were unable to elect a governing council until the 1970s. And for decades, the city has been fighting to have representation in the House of Representatives and its own constitution. These attempts have both failed, but last year, District residents did win the battle over marijuana use.
Under the 2015 marijuana law, D.C. residents are permitted to keep up to two ounces of marijuana in their home for private use. It is a law endorsed by the city and its population. None-the-less, because of the convoluted limitations on home rule, the federal government — namely the Republican led House of Representatives — bars the city from taxing or regulating the drug.
In other words, the city passed a popular autonomous law, but cannot exercise that law because of a Congressional stranglehold on the city’s budget. Now, in an attempt to wrest authority from Congress, city officials are defining taxation and regulation as a public health and safety issue. The D.C. Department of Health published a report in July citing the need for regulatory measures to avoid a crisis.
According to the department, educating the public about safe use is a necessary adjunct to the legalization effort. Additionally, without taxation and regulation, there is no way to curb black market sales of marijuana. By removing the legalization question from one of fiscal issues, the city hopes to exercise a bit of autonomy that — if successful — could tap into much needed revenue from marijuana taxes.
Last year, Colorado saw over $1 billion in revenue from the legalization and sale of marijuana. Neighboring states like Maryland have already taken advantage of the growing marijuana industry. There, even former DEA agents are vying for one of 15 cultivation licenses the state will issue this summer.
It has been nearly 45 years since Washington, D.C. gained expanded home rule, yet Congress still imposes its rule where autonomous laws are enacted, legally, and by and for the residents of the District.
In 1907, the United States Supreme Court elaborated on municipal authority in Hunter v. Pittsburgh. Therein, the Court wrote that “Municipal corporations owe their origins to, and derive their powers and rights wholly from, the legislature.”
Congress gave the District the right to enact autonomous legislation in 1973. The House of Representatives reviewed the 2015 marijuana law, the city council approved the measure, and the people of the city ratified the law. The next progressive step is that the law be enforced by appropriate means — including those that protect public health and safety.
It is time for home rule to operate without partisan bias. Elected officials from other jurisdictions should not govern how majority-enacted District laws are enforced under the auspices of Washington, D.C. as a federal agency.
Besides, when the same men and women who dictate what the District can do fiscally are in need of help, their calls are answered by fire, police, and EMS services paid for and provided by the city. Imagine how quickly Congress would change its position if the next time the phone rang, no one answered.
Borderstan contributor and law firm sponsor Price Benowitz LLP. The views and opinions expressed in the column are those of the author — our contributor and law firm sponsor Price Benowitz LLP — and do not necessarily reflect the views of Borderstan.