Rep. Jason Chaffetz (R-Utah) has ordered the District to stop its efforts to legalize marijuana. With marijuana now legal, he and fellow House Republicans have scarce options to bring the city to heel. (AP Photo/J. Scott Applewhite, File)
Marijuana possession has now been legal in the District of Columbia for more than 12 hours, and the business of the city appears to be proceeding much as usual.
That certainly seemed to be the case on Capitol Hill around midday Thursday, where eyes did not appear to be appreciably redder and snack food inventories hardly seemed depleted.
[Everything you need to know to stay out of jail when pot is legal in D.C.]
But it's looking increasingly likely that the District's voter-approved experiment with legal pot will continue at least through September, despite the determination of some Republican members of Congress to block the measure.
Late Tuesday, Reps. Jason Chaffetz (R-Utah) and Mark Meadows (R-N.C.) sent a letter to D.C. Mayor Muriel E. Bowser (D) warning of dire consequences should she proceed with implementing marijuana legalization despite language in a December congressional funding bill that they say prohibits it. The federal Anti-Deficiency Act, they noted, includes criminal penalties for government officials who willfully spend public funds outside of their appropriated budgets.
But while Congress has the power to point out the provisions of federal law to the city -- particularly Chaffetz and Meadows, as chairmen of the House Oversight and Government Reform Committee and subcommittee, respectively, handling D.C. affairs -- it has virtually no ability to enforce those laws.
That is why the chief opponent of legal marijuana in the District, Rep. Andy Harris (R-Md.), could only call on Attorney General Eric H. Holder to enforce the anti-deficiency law against D.C. officials: "Our intention [to ban legal marijuana in D.C.] was clear; it’s up to the attorney general to actually enforce the law."
A Justice Department spokesman declined to comment Wednesday, but it is impossible to fathom Holder investigating city officials, let alone bringing charges against them. Setting aside the improbability of a Democratic attorney general prosecuting a Democratic mayor over Republican appropriations language, there are simply no known criminal prosecutions in the 130-year history of the Anti-Deficiency Act.
Even if a future Republican attorney general were to bring charges, as Harris suggested Thursday -- "It's a five-year statute of limitations; all I can say is that we'll gather all the information" -- it would be a stretch to think that a District of Columbia jury would find that Bowser or her deputies would have shown criminal intent in carrying out the will of 71 percent of voters according to a legal interpretation shared by her lawyers, those of the independent D.C. attorney general and by numerous key Democratic members of Congress, from the House minority leader to Appropriations Committee leaders on down.
So what options do Harris, Chaffetz & Co. have left? Increasingly few -- at least until the 2016 District budget comes through Capitol Hill later this year.
Some have suggested that the House itself might sue the city, asking a judge to declare the city's actions to implement legalization to be illegal. But congressional observers who requested anonymity to speak frankly about the options said that would be considered only a last resort, if for no other reason than the possibility that a lawsuit could backfire and validate the city's actions. Any suit would have to have the backing of House Speaker John A. Boehner, and a spokesman said Wednesday he was not aware of any request to have Boehner intervene in that manner.
Chaffetz or Meadows might also decide to act by using their bully pulpit to call Bowser and other city officials to a congressional hearing in order to question them on their actions regarding legalizing marijuana. They have already asked her to provide information about those actions to the committee. But rather than give the Republicans the opportunity to beat the city into submission, it would also give District leaders the opportunity to highlight the overwhelming public vote in favor of legalization and the efforts of representative from Maryland and Utah to thwart that.
"I think they need to be very careful, because this is one of those situations where a moment could turn into a serious movement," said Rep. Elijah Cummings (D-Md.), Chaffetz's Democratic counterpart atop the Oversight and Government Reform Committee. "It may cause the Republicans to say, 'Is it worth the battle?'... Anyone who's asked me, I've said, 'Let this alone. It's not worth it.'"
While the city's seeming defiance might prod Chaffetz into taking a more aggressive stance toward the District on other matters, Bowser has taken steps to prevent that. On Wednesday, before holding a news conference announcing her intention to move forward with legalization, she called Chaffetz to explain what she was doing and why she was doing it, according to Del. Eleanor Holmes Norton (D) and a Bowser spokesman.
"I think she had a good conversation with him, so this is why it would be very difficult to see this as a defiance issue," Norton said Thursday.
Where the rubber will more firmly hit the road will be later this year, when the District's new budget comes to Capitol Hill for approval. Then Harris, an appropriations committee member, will have the opportunity to tighten up the marijuana language without having to worry about a Democratic Senate.
But by the time the new language might take effect -- no earlier than Oct. 1, perhaps long after that -- legal marijuana will have been the law of the District of Columbia for months, and the city and Congress are both likely to be in a far different place.
"There's very little basis for this to heat up," Norton said of Republicans. "I don't see who has anything to gain by escalation on their side."
Mike DeBonis covers Congress and national politics for The Washington Post. He previously covered D.C. politics and government from 2007 to 2015.
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