“That’s the way the Constitution was written,” Rep. Andy Harris of Maryland said in an interview Wednesday. “If they don’t like that oversight, move outside of the federal district to one of the 50 states that is not covered by the jurisdiction of Congress as a whole.”
Harris, 57, is the leader of a small band of anti-marijuana hardliners in Congress who worked behind the scenes to insert language in a must-pass spending bill that attempts to nullify a pro-pot referendum approved by 70 percent of D.C. voters in last month’s elections.
The situation leaves Republicans in an awkward position — not only contradicting their long-standing philosophical views that the federal government shouldn’t meddle in local affairs but also out of step with a clear majority of voters who back more liberal marijuana laws.
Just as the party scrambled to catch up on rapidly changing public opinion on social issues like the rights of gays to serve openly in the military or to marry, the marijuana measure is forcing the party to find its footing on an issue when all Republicans don’t agree.
In interviews on Capitol Hill on Wednesday, GOP views were decidedly mixed on the issue — and some believed Republicans should focus on other battles instead.
“I believe in more local autonomy on that,” said Sen. Rand Paul, a libertarian-minded Kentucky Republican who will likely run for president in 2016. “I think Colorado, the District, most localities should be able to make that decision for themselves.”
Added Sen. Jeff Flake (R-Ariz.): “It’s not something I would have put in.”
Though D.C. boasts a population of 640,000 residents and a city council and mayor’s office that govern local affairs, the Constitution gives Congress jurisdiction over the federal capital, an authority conservatives have long exploited to push a range of social policies from abortion to guns — and even marijuana.
“They may have a say, but not the complete say,” argued Sen. John Hoeven (R-N.D.), who sits on the Senate Appropriations Committee, referring to voters in D.C.
Conservative Louisiana Rep. Steve Scalise, the House majority whip, said this when asked about reining in D.C. pot laws: “It’s a constitutional responsibility.”
“Washington, D.C., has a lot to offer,” said Rep. Jason Chaffetz (R-Utah). “Recreational marijuana shouldn’t be one of them.”
The measure was included in a $1.01 trillion spending package that Congress must pass by Thursday or risk a government shutdown. Along with Harris, Louisiana Rep. John Fleming and the powerful House Appropriations Chairman, Hal Rogers of Kentucky, the lead negotiator for House Republicans, pushed hard for the measure behind the scenes.
During the private talks with Maryland Democratic Sen. Barbara Mikulski, Republicans sought to add a number of riders to pare back social policies in the District of Columbia, including to rein in its strict gun control laws and abortion rights while pushing for more aggressive anti-marijuana policies, including banning future sales and targeting laws decriminalizing small amounts of pot possession and authorizing medical marijuana.
Mikulski was able to beat back several of those riders and include language sought by D.C. to protect the city in case of a federal government shutdown. But as one major concession, the Democrat ultimately agreed to include in the final package a Republican plan targeting the recently approved ballot initiative, allowing for the legal possession of up to 2 ounces of pot, cultivation of as many as three marijuana plants and transfer of up to an ounce to people over 21 years old. Some believe it could put the decriminalization measure in jeopardy, too.
On Wednesday, Rogers had little to publicly say about the matter.
“Congress oversees the D.C. spending, and that was an item that we felt was appropriate,” said Rogers, whose Eastern Kentucky district has had its own problems with prescription drug abuse over the years.
Asked about interfering on a matter enacted by a huge majority of voters, Rogers said: “I’ll refer to my previous answer.”
The final provision in the spending package mirrors an amendment that Harris successfully pushed through the House earlier this year, but there’s one key difference. Harris’ initial amendment would deny funding “to enact or carry out” a law that would legalize the possession, use or distribution of marijuana. But the latest spending bill removed the “carry out” language — the rider says that no funding can be used to “to enact” a legalization law. Pro-legalization advocates argue that the marijuana legalization initiative became enacted after its Election Day approval, and, therefore, the district can implement it without violating the rider.
Eleanor Holmes Norton, the district’s nonvoting House delegate, said that “based on a plain reading of the bill and principles of statutory interpretation, it is arguable that the rider does not block D.C. from carrying out its marijuana legalization initiative.”
The outstanding legal question, then, is whether the law was enacted on Election Day or whether it will only be enacted after the 30-day legislative review period following the transmission of the bill in January.
“If the question is whether I’d be open to legal action, the answer is yes,” said Phil Mendelson, chairman of the D.C. City Council.
Foreshadowing a potential court fight, Harris said: “I think legislative intent is clear. I think enactment has a clear legal meaning. And D.C. legalization clearly has not been enacted.”
Harris, the lone Republican in a deep-blue Maryland delegation, was elected to Congress in the 2010 Republican wave, defeating centrist Democrat Frank Kratovil in a rematch of their close 2008 election. He represents Maryland’s First District, a solidly Republican region in the eastern part of the state that has gone for Mitt Romney and John McCain by more than 20 points in the past two presidential elections.
A member of the conservative Republican Study Committee, Harris voted against legislation to reopen the government last year following the shutdown and the 2011 bill to avert the breach of the debt ceiling. He has called Obamacare a “disaster” and likened pornography to “poison.” His late wife, Sylvia “Cookie” Harris, was herself a major figure in the Maryland anti-abortion movement before she passed away in August.
A former state legislator and an anesthesiologist at Johns Hopkins University for more than 30 years, Harris often invokes his medical background and experience when speaking about the perils of drug addiction.
“Marijuana is a gateway drug of addiction to other drugs,” said Harris, a son of Eastern European immigrants. “We have to think carefully as a society before we extend legalization to something that pretty demonstrably will have a negative effect of addiction. … The brain is changed by chronic use of marijuana.”
Asked if he’s ever smoked pot, Harris said Wednesday: “No, I haven’t. It’s against the law.”
But when asked whether he would push to nullify the laws in other states that have legalized marijuana, such as Colorado and Washington state, Harris said the executive branch needs to enforce existing drug laws — not Congress.
District officials believe such talk is pure hypocrisy.
“I believe that my office tried to reach out to Andy Harris in the summer,” Mendelson said, “but he’s not really interested in talking to local officials, which also speaks to hypocrisy, which is, ‘Fine, I will legislate for you, but I won’t talk to you.’”
Legalization advocates say that marijuana is safer than alcohol and other prescription drugs, arguing that while alcohol overdose results in hundreds of deaths per year, there have been no recorded marijuana overdose deaths. They also cite statistics that pot is far less addictive, and has a lower capability for abuse, than substances like tobacco and alcohol.
A number in the GOP are sympathetic to that argument, but Fleming says they shouldn’t be.
“Some Republicans seem to support marijuana legalization because there is a certain amount of populism in that, but it’s based on poor science,” Fleming said.
Moreover, a majority of voters — 51 percent in a recent Gallup Poll — support legalization, something that is even more popular with younger people that Republicans have been eager to court.
Perhaps for that reason, it’s clear the issue isn’t a huge priority for some Republicans.
The incoming Senate majority leader, Mitch McConnell of Kentucky, said at a POLITICO event Wednesday he wasn’t even aware of the pot rider, though he reiterated his opposition to legalizing marijuana. Michael Steel, a spokesman for House Speaker John Boehner, said the Ohio Republican backs the position the House took earlier this year to block the D.C. initiative. That measure never became law.
Sen. Ron Johnson, a Wisconsin Republican who will chair the Senate Homeland Security and Governmental Affairs Committee, which has oversight over D.C. matters, said he would hold hearings next Congress examining state marijuana laws.
But Johnson, who will be vulnerable in 2016, added: “We’ve got all kinds of priorities. That would not be at the top of my list.”
Some Republicans have demanded that the federal government enforce nationwide drug laws, using the issue to call out President Barack Obama for executive overreach. The so-called Enforce the Law Act that passed the House this year — sponsored by GOP Reps. Trey Gowdy of South Carolina, Bob Goodlatte of Virginia, Darrell Issa of California and Jim Gerlach of Pennsylvania — included a committee report criticizing the Obama administration for not enforcing the Controlled Substances Act in Colorado and Washington state. Similarly, earlier this year, Texas Sen. Ted Cruz called the administration’s stance “fundamentally dangerous to the liberty of the people.”
But many Republicans feel more conflicted, particularly given the party’s longstanding emphasis on states’ rights. Republican Reps. Dana Rohrabacher of California and Paul Broun of Georgia have introduced similar pieces of legislation to prevent federal prosecution of people acting in accordance with state marijuana laws. (Broun’s only applied to medical marijuana.) Broun warned against an “overreaching federal government,” but he said his legislation would “return powers back to the states.”
Outgoing Texas Gov. Rick Perry, potentially maneuvering for a 2016 presidential run, has positioned himself strongly in the states’ rights camp, invoking the 10th Amendment in his call for states to set their own marijuana policies without federal interference.
For his part, Rohrabacher has also taken a more baldly political stance, warning his Republican colleagues that the American public is moving in favor of legalization.
“My message to my fellow Republicans is, ‘Wake up and see where the American people are, but also see what the fundamental principles are in this debate,’” he said last month, emphasizing both polling data that a majority of Americans are in favor of legalization and that the policy is in keeping with personal freedom.
“Come on over for just raw politics,” the congressman told his GOP colleagues.