The Impact of Proposed Rescheduling of Marijuana on D.C. Regulatory Authority

The Impact of Proposed Rescheduling of Marijuana on D.C. Regulatory Authority

Legal Sidebari

The Impact of Proposed Rescheduling of
Marijuana on D.C. Regulatory Authority
June 28, 2024
In 2014, voters in the District of Columbia (the “District”) approved Initiative 71, a ballot measure that, as
a matter of local D.C. law, repealed the local prohibition on the recreational use of marijuana in the
District within certain limitations. The initiative did not, however, repeal the prohibition on the sale of
marijuana for recreational use. In response, Congress included in its annual appropriations bill a policy
rider prohibiting the District from expending any funds to legalize or reduce the penalty associated with
any Schedule I controlled substance under the Controlled Substances Act (including marijuana) or any
“tetrahydrocannabinols derivative.” Congress has included this provision in every subsequent
appropriations bill funding the District.
Because this policy rider specifically references Schedule I controlled substances, the proposed
rescheduling of marijuana by the Department of Justice and the Drug Enforcement Administration (DEA)
from Schedule I to Schedule III would affect the legal authority of the District government to regulate
marijuana. If the current appropriations policy rider were to remain, effect unchanged, the proposed
rescheduling of marijuana would permit the District government, as a matter of local law, to authorize the
commercial sale of recreational marijuana, establish market regulations, and levy marijuana taxes, among
other policy options.
A previous CRS Insight outlined policy considerations related to rescheduling marijuana more broadly,
and a prior Legal Sidebar examined the legal consequences of moving marijuana from Schedule I to
Schedule III under federal law. This Legal Sidebar examines the current legal status of marijuana in the
District and analyzes the specific effect that rescheduling marijuana would have on the District’s
regulatory authority over marijuana under the current appropriations rider. It concludes with
considerations for Congress on how it could respond to the proposed rescheduling with respect to the
District in particular, given Congress’s unique role with respect to the District’s governance.
Current Legal Status of Marijuana in the District
In the District, marijuana is regulated by both federal and local law, which define marijuana differently.
Under D.C. law, marijuana “includes the leaves, stems, flowers, and seeds of all species of the plant genus
Cannabis, whether growing or not,” but does not include (1) the plant resin or compounds of the plant
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resin (which are legally defined as hashish and are separately unlawful to possess); (2) fibers from
cannabis plant stalks; (3) oil from cannabis seeds; and (4) certain other specified cannabis derivatives.
Initiative 71 authorizes a person 21 years of age or older to “possess, use, purchase, or transport marijuana
weighing 2 ounces or less,” transfer (but not sell) marijuana weighing one ounce or less, and grow in their
principal residence up to six cannabis plants (with no more than three being mature). Congress passed an
appropriations policy rider in response to Initiative 71 that prohibits the D.C. government from legalizing
schedule I substances, but it did not retroactively repeal Initiative 71. Although the rider was enacted after
Initiative 71 passed but before it went into effect, Initiative 71 was viewed as self-executing and became
law without any further action from the D.C. government.
D.C. law also authorizes and regulates the use of marijuana for medical purposes. A separate
appropriations policy rider prohibits the District from using federal funds to carry out its medical
marijuana program but permits the use of local funds to do so.
Under federal law, it remains illegal to produce, dispense, or possess marijuana throughout the United
States, subject to limited exceptions. The Controlled Substances Act (CSA) classifies the cannabis plant
and its derivatives as marijuana (or the alternative spelling, “marihuana”), subject to two exceptions:
(1) products that meet the legal definition of hemp and (2) the mature stalks of the cannabis plant; the
sterilized seeds of the plant; and fibers, oils, and other products made from the stalks and seeds. Federal
law defines hemp as the cannabis plant or any part of that plant with a delta-9 tetrahydrocannabinol
(THC) concentration of no more than 0.3%. The non-psychoactive compound cannabidiol (CBD) falls
within the legal definition of hemp. Marijuana is a Schedule I controlled substance under the CSA, but
hemp is not a controlled substance. Under the CSA, it is legal to handle Schedule I controlled substances
only in the context of DEA-registered scientific research.
Because Schedule I substances are deemed to have no accepted medical use, medical marijuana is illegal
under federal law. However, another annual appropriations rider, included in each budget cycle since
FY2014, prohibits the Department of Justice from using appropriated funds to prevent states or territories
“from implementing their own laws that authorize the use, distribution, possession, or cultivation of
medical marijuana.” Courts have interpreted this provision to prohibit federal prosecution of state-legal
activities involving medical (but not recreational) marijuana. The rider limits enforcement of the CSA
while it remains in effect, but ultimately it does not amend the CSA or legalize any activity made illegal
under the CSA.
Application of the Appropriations Rider If Marijuana
Were Rescheduled
As currently enacted, a federal appropriations rider prohibits the D.C. government from using any funds,
local or federal, “to enact any law, rule, or regulation to legalize or otherwise reduce penalties associated
with the possession, use, or distribution of any schedule I substance under the Controlled Substances Act
. . . or any tetrahydrocannabinols derivative for recreational purposes.” Although the provision was
enacted in response to Initiative 71, it did not retroactively repeal the initiative, instead leaving it in place
while prohibiting further legalization of Schedule I controlled substances such as marijuana by the D.C.
government in the future.
Because this provision limits the District’s authority with respect to all Schedule I controlled substances
and not to marijuana specifically, rescheduling marijuana to Schedule III would permit the District to
(1) repeal, partially or in full, local prohibitions on possession or use of marijuana for recreational
purposes beyond what is currently permitted by Initiative 71 and (2) repeal, partially or in full, local
prohibitions on the distribution of marijuana, which includes its commercial sale for recreational use. This

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change would also permit the District to regulate the commercial marijuana market more broadly, for
example by establishing regulations and taxes on the commercial sale of marijuana.
Rescheduling marijuana would not change the appropriations rider itself, and it would still remain in
effect in two significant ways. First, it would still prohibit the District from legalizing or reducing
penalties related to other Schedule I controlled substances. Second, the prohibition on the District
expending funds to legalize or reduce penalties for “any tetrahydrocannabinols derivative” would remain
in place even if marijuana were rescheduled.
The continued prohibition on legalization of tetrahydrocannabinols derivatives by the District could lead
to interpretive questions about whether a particular substance is legally marijuana, hemp, a
tetrahydrocannabinols derivative, or something else. “Tetrahydrocannabinols derivative” is not defined in
the CSA or under D.C. law. Certain synthetic tetrahydrocannabinols remain illegal for recreational use
under D.C. law, but it is not clear whether these synthetic substances would constitute derivatives. In
addition, although federal law defines marijuana and hemp to be exclusive of each other, a substance
could conceivably be both a tetrahydrocannabinols derivative and marijuana or hemp as a matter of law.
Courts faced with disputes over the legal classification of a substance are likely to use typical methods of
statutory interpretation to resolve these questions. As an example, one recent opinion from the U.S. Court
of Appeals for the Ninth Circuit determined that products containing only delta-8 THC (a psychoactive
compound naturally occurring in cannabis, albeit at much lower concentrations than the primary
psychoactive component, delta-9 THC) are legally hemp. The court reached this result by analyzing the
textual definition of hemp, which is defined in reference to delta-9 THC concentrations only. The court
acknowledged that this conclusion might be counterintuitive from a policy standpoint, since both delta-8
THC and delta-9 THC are psychoactive, but concluded if “Congress inadvertently created a loophole
legalizing vaping products containing delta-8 THC, then it is for Congress to fix its mistake.” Although
that case did not involve a dispute about a “tetrahydrocannabinols derivative,” the court’s reasoning may
be instructive on similar questions of interpretation.
Considerations for Congress
Regardless of whether the DEA ultimately reschedules marijuana, when considering changes to the legal
status of marijuana, Congress has the authority to legislate both nationwide and also with respect to the
District in particular. Considerations about legislatively changing the status of marijuana nationwide
under the CSA are examined more fully in a previous Legal Sidebar.
With respect to the status of marijuana under D.C. law, Congress retains its constitutional authority to
legislate on matters involving the District. If the DEA reschedules marijuana from Schedule I to Schedule
III and Congress wishes to continue to prohibit the District from making further changes to local
marijuana laws, Congress would need to amend the current appropriations rider to apply specifically to
marijuana. Congress could also achieve this result by passing a permanent law, rather than an annual
appropriations rider, amending the local D.C. Code’s marijuana provisions. (For a more in depth look at
Congress’s authority over the District, see this CRS Report.)
If Congress takes no action beyond maintaining the current appropriations rider, and if the DEA
reschedules marijuana, the District likely will be able to repeal additional local prohibitions and regulate
marijuana further, at least to the extent the regulated substances do not constitute “tetrahydrocannabinols
derivatives.” In that case, Congress could consider clarifying what substances constitute
tetrahydrocannabinols derivatives, as opposed to marijuana or hemp.
Congress could also impose more stringent controls on marijuana in the District, such as repealing
Initiative 71. Alternatively, Congress could lessen or eliminate federal restrictions on marijuana in the
District. For example, the FY2025 appropriations bill approved by the Financial Services and General

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Government Subcommittee of the House Appropriations Committee omits the D.C. marijuana rider. If
this bill were enacted, the current appropriations rider restricting the D.C. government’s authority would
expire at the end of FY2024. The ultimate effect on the legal status of marijuana in the District would
depend on what legislation, if any, the D.C. government subsequently enacted.

Author Information

Matthew D. Trout

Legislative Attorney

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