Ask the Scholar

Document scope · 1 page
doc
Scholar
Ask about this object, its catalog metadata, its source description, or the page inventory. For page-specific OCR and visual context, open one of the page chats.

Scholar Source Context

Document identity
localId
118567762
label
[JGR/Chadha re: District of Columbia] (9 of 12)
core
doc
dtoType
document
pageCount
1
Source metadata
id
118567762
contentType
document
title
[JGR/Chadha re: District of Columbia] (9 of 12)
identifierLocal
485
collections
Records of the Office of Counsel to the President (Reagan Administration)
John Roberts' Subject Files
imageCount
1
hasImages
yes
source
import
hasTranscription
no
Source extras
naId
118567762
coverageEndDate
logicalDate
1986-12-31
year
1986
coverageStartDate
logicalDate
1982-01-01
year
1982
levelOfDescription
fileUnit
recordType
description
ocrSource
nara-archive
Single page context
seq
1
pageIndex
0
type
document
mediaId
ee0799c81eeb8323
ocrText
Ronald Reagan Presidential Library Digital Library Collections This is a PDF of a folder from our textual collections. Collection: Roberts, John G.: Files Folder Title: [JGR/Chadha re: District of Columbia] (9) Box: 9 To see more digitized collections visit: https://reaganlibrary.gov/archives/digital-library To see all Ronald Reagan Presidential Library inventories visit: https://reaganlibrary.gov/document-collection Contact a reference archivist at: [email protected] Citation Guidelines: https://reaganlibrary.gov/citing National Archives Catalogue: https://catalog.archives.gov/ 45 Box 9 - [JGR/Chadha re: District of Columbia] (9) - Roberts, John G.: Files SERIES I: Subject File THE WHITE HOUSE WASHINGTON January 17, 1984 MEMORANDUM FOR FRED F. FIELDING Nice as John FROM: JOHN G. ROBERTS SUBJECT: Ward Room Meeting on D.C. Chadha Bill (1/17/84; 5:30 p.m.) You asked that I attend the above-referenced meeting in your 1/17 stead. The meeting was chaired by Lee Verstandig and attended by C.A. Howlett and Mary Battaile of Intergovern- mental Affairs, Constance Horner and Mike Horowitz of OMB, Bob McConnell and Ted Olson of Justice, and Joe di Genova. The impetus for the meeting was a request by Mayor Barry to Mr. Deaver for a meeting to discuss the D.C. Chadha matter. A meeting has been arranged for Friday afternoon with the Mayor, his counsel, and his intergovernmental affairs person and as yet undetermined White House staff members. Those present at the meeting discussed the status of progress on the D.C. Chadha bill, with di Genova coming out strongly in favor of the recent compromise proposal. You will recall that the compromise would require an objection from the President to activate procedures requiring affirmative approval by Congress of D.C. Council proposals in the criminal law area. I noted that our office objected to that compromise as putting the President in too sensitive a position on what would be, in most cases, local criminal justice matters. After Horowitz mapped a grand strategy for White House involvement on the issue, I noted that our posture had been to keep the matter at the Department of Justice to the extent possible. Verstandig agreed with our position, and suggested that the White House should not even participate in the planned meeting with the Mayor. After discussion, it was agreed that the meeting should be handled by Justice, as most recognized that the Mayor only raised the matter with Deaver in an attempt to circumvent the Justice Department officials handling the matter. Verstandig asked that I review this conclusion with you to make certain you had no objections. Verstandig also indicated he may try to raise this with you at the morning staff meeting. As I expressed at the meeting, I think it best to keep this issue away from the President and the White House and at the - 2 - Department of Justice to the extent possible. The federal interest in this matter is a law enforcement interest, properly represented by the Department of Justice. There is no need further to involve the President or the White House in sensitive "home rule" matters by taking an active role in meetings with the Mayor on this issue. The Bashington Times DATE: 2-7-84 PAGE: 1A Judge refuses to hear sex cases until law is resolved Before calling the case, Judge Smith asked Assistant U.S. Attor- By David Sellers Chadha, a Kenyan with an British ney Michael Rankin to call his su- WASHINGTON TIMES STAFF visa who sought to renew his appli- pervisor, Steven Gordon, the chief A senior D.C. Superior Court cation for permanent resident sta- of the office's felony section, to the courtroom. tus. judge - uncertain whether defen- dants are being prosecuted under When immigration agents found Judge Smith was scheduled to out his student visa had expired, begin the trial of Michael Price, 24, valid laws - yesterday said he no longer will handle sex-offense they tried to deport him. of Southeast Washington, who was Mr. Chadha appealed the order charged with rape, carnal cases until there is some up to the Justice Department, but knowledge, indecent acts and entic- clarification of a recent Supreme Congress vetoed the ruling and he ing a minor. Court ruling barring congressional went to the federal courts. Instead of calling for a jury panel vetoes of some laws. The majority opinion, written by to begin jury selection, Judge Chief Justice Warren E. Burger,- Smith told Mr. Gordon he would The Supreme Court held last summer that the legislative veto said the legislative veto, which Con- constitutes an unwarranted intru- gress used to overturn the Justice postpone this case and others like Department ruling, improperly it until there was a determination sion into the powers of the execu- tive branch. Some legal scholars left out the president. Both houses on the full implication of the Su- said the ruling also applies to vetoes of Congress should have approved preme Court ruling. the bill and submitted it to the pres- Yesterday afternoon Judge over District laws. ident for his signature, Mr. Burger Smith declined to discuss his de- Yesterday, Judge Donald S. Smith ruled. cision, but said through his law joined those unwilling to act - The ruling invalidated or seri- clerk that "people seem to be over- caught between the ruling of the Supreme Court and the actions of ously jeopardized legislative veto reacting." Congress. He announced he will not provisions in at least 200 laws, said Judge Smith adopted this policy, Justice Byron R. White in the dis- his clerk said, because he is waiting senting opinion, and "strikes down for the government's reply to a mo- handle any more sex-related cases until the issue is resolved. in one fell swoop provisions in more tion to overturn a conviction in a laws enacted by Congress than the similar case. It is possible that, de- The focus of the new controversy is The Sexual Assault Reform Act, court has cumulatively invalidated pending on how he rules in the case, in its history." the sexual statutes could be found approved by the City Council in 1981. Under the Home Rule Act, all unconsititutional, the clerk said. The legislation was highly District legislation is reviewed by The other case before Judge criticized for its apparent liberal- Congress. Smith is the subject of a challenge Legislation to resolve the legal by the Public Defender Service, ized approach to sex between con- senting teenagers, and the House status of D.C. laws potentially af- which hopes to use the Supreme Court ruling to reverse the convic- vetoed the act. fected by the Supreme Court ruling tion of Sylvester Cole, who was con- The question now is, given the was introduced last year by Dele- victed of having sex with a minor. gate Walter Fauntroy, D-D.C., and Judge Smith considers the Cole Supreme Court ruling, was the law was approved by the House in Sep- case and the Price case very simi- illegally overturned? tember. lar, his clerk said. The U.S. Attor- Some authorities question The bill has been stalled in the ney's Office expects to file its reply whether defendants should be pros- Senate since then, in the Govern- brief in the Cole case this week and ecuted under the liberalized law or mental Efficiency and District of a ruling is expected from Judge under the current, more stringent Columbia Committee headed by Smith this month. law. Sen. Charles Mathias, R-Maryland. A 12-year veteran of the court, The Supreme Court's ruling Since the court's ruling, the sta- Judge Smith is one of only three came as a result of a deportation tus of several D.C. laws has been in judges to hear the most severe case brought by Jagdish Rai limbo, and local authorities have criminal cases, usually rapes or expressed uncertainty over exactly murders. His law clerk said yester- what the Chadha decision means to day that the judge did not think his the city. decision will cause a significant Judge Smith, the only judge of backlog in the court's docket. the 44 on the local trial court to adopt such a policy, made his an- nouncement yesterday from the bench after the prosecutor and de- fense attorney had said their wit- nesses were present and they were ready for trial. THE WHITE HOUSE WASHINGTON January 17, 1984 MEMORANDUM FOR FRED F. FIELDING FROM: JOHN G. ROBERTS &2R SUBJECT: Ward Room Meeting on D.C. Chadha Bill (1/17/84; 5:30 p.m.) You asked that I attend the above-referenced meeting in your stead. The meeting was chaired by Lee Verstandig and attended by C.A. Howlett and Mary Battaile of Intergovern- mental Affairs, Constance Horner and Mike Horowitz of OMB, Bob McConnell and Ted Olson of Justice, and Joe di Genova. The impetus for the meeting was a request by Mayor Barry to Mr. Deaver for a meeting to discuss the D.C. Chadha matter. A meeting has been arranged for Friday afternoon with the Mayor, his counsel, and his intergovernmental affairs person and as yet undetermined White House staff members. Those present at the meeting discussed the status of progress on the D.C. Chadha bill, with di Genova coming out strongly in favor of the recent compromise proposal. You will recall that the compromise would require an objection from the President to activate procedures requiring affirmative approval by Congress of D.C. Council proposals in the criminal law area. I noted that our office objected to that compromise as putting the President in too sensitive a position on what would be, in most cases, local criminal justice matters. After Horowitz mapped a grand strategy for White House involvement on the issue, I noted that our posture had been to keep the matter at the Department of Justice to the extent possible. Verstandig agreed with our position, and suggested that the White House should not even participate in the planned meeting with the Mayor. After discussion, it was agreed that the meeting should be handled by Justice, as most recognized that the Mayor only raised the matter with Deaver in an attempt to circumvent the Justice Department officials handling the matter. Verstandig asked that I review this conclusion with you to make certain you had no objections. Verstandig also indicated he may try to raise this with you at the morning staff meeting. As I expressed at the meeting, I think it best to keep this issue away from the President and the White House and at the - 2 - Department of Justice to the extent possible. The federal interest in this matter is a law enforcement interest, properly represented by the Department of Justice. There is no need further to involve the President or the White House in sensitive "home rule" matters by taking an active role in meetings with the Mayor on this issue. ID # 191065 CU WHITE HOUSE FG114 CORRESPONDENCE TRACKING WORKSHEET o OUTGOING H INTERNAL I INCOMING Date Correspondence Received (YY/MM/DD) / / Name of Correspondent: Joe Wright MI Mail Report User Codes: (A) (B) (C) Subject: D.C. Government and the Legislative Cholance Process on HR 3932 amending D.C. home rule law to conform with the Chadha decision ROUTE TO: ACTION DISPOSITION Tracking Type Completion Action Date of Date Office/Agency (Staff Name) Code: DD YY/MM/DD Response Code YY/MM/DD WHOLL ORIGINATOR 83,12,09 / Referral Note: CUAT 18 AS 83,12,09 / / Referral Note: / / / / - Referral Note: / / / / - Referral Note: / / / / I Referral Note: ACTION CODES: DISPOSITION CODES: A Appropriate Action I Info Copy Only/No Action Necessary A Answered C Completed C Comment/Recommendation R Direct Reply w/Copy B Non-Special Referral S Suspended D - Draft Response S For Signature F - Furnish Fact Sheet X Interim Reply to be used as Enclosure FOR OUTGOING CORRESPONDENCE: Type of Response = Initials of Signer Code = "A" Completion Date = Date of Outgoing Comments: Keep this worksheet attached to the original incoming letter. Send all routing updates to Central Reference (Room 75, OEOB). Always return completed correspondence record to Central Files. Refer questions about the correspondence tracking system to Central Reference, ext. 2590. 5/81 of The PRESIDENT EXECUTIVE OFFICE OF THE PRESIDENT OFFICE UNITED OFFICE OF MANAGEMENT AND BUDGET DECUME STATES WASHINGTON, D.C. 20503 December 3, 1983 191065 Cu MEMORANDUM FOR: ATTORNEY GENERAL SMITH FRED FIELDING FROM: Clearance Jr JOE WRIGHT SUBJECT: D.C. Government and the Legislative There was recently a great deal of concern expressed over OMB's handling of the legislative clearance process on H.R. 3932 which amended the D.C. home rule law to conform with the Chadha decision -- you objected to our asking the D.C. Government for their reaction prior to submitting the Administration's position to the Congress. This memo describes the background, the recent action and our proposed future process. I. Background When the District of Columbia was governed by three Presidentially-appointed Commissioners, it was treated under the legislative clearance process the same as any Federal agency. When D.C. acquired its first modified form of home rule in the 1960's -- i.e. a single appointed commissioner ("mayor") and a council, the new D.C. Government questioned whether or not traditional treatment was proper. At that time, OMB and the D.C: Government agreed that on any legislative matter affecting the District and the Federal interest, the clearance process would apply as usual. On local matters, it would not. Because of uncertainties, this informal understanding was not codified until after the D.C. Government took its present form. Circular No. A-19 was revised in 1979 and the following sentence was added: "The municipal government of the District of Columbia is covered to the extent that legislation involves the relationship between it and the Federal Government." This meant that the Federal Government and the D.C government didn't take each other by surprise in their legislative proposals or expressions of views -- that is, we communicated with each other in advance of communications with Congress. It also meant that we have cleared D.C. draft legislation dealing with their finances and other matters where the interest of the District and the Federal Governments have been intermingled historically (e.g. personnel benefits like retirement). Our legislative clearance staff believe that this process has worked to the net benefit of the Executive branch in terms of information received and influence exerted. II. The Case in Point - H.R. 3932 The Senate Governmental Affairs Committee was considering H.R. 3932, which amended the D.C. home rule law to make it conform to the Supreme Court's Chadha decision on the legislative veto, and OMB sought a decision on the position the Administration should take. The following occurred: -- October 28 - We received a response to our memorandum, representing a decision concurred in by Justice, Fred Fielding, and OMB (Horowitz - Horner). : November 3 - We discussed with Mike Dolan, Deputy Assistant Attorney General, Office of Legislative Affairs, the need to inform the D.C. Government of the decision well in advance of any committee markup, so D.C. would not feel it had been blindsided. Since a draft Justice report had not yet been prepared, Dolan agreed it would be proper for us to inform D.C. of the decision by phone. : November 3 - We informed D.C.'s LR liaison of the decision by phone, but did not try to explain the rationale, lacking a draft Justice report. November 4 - The Mayor called Jim Murr seeking clarification and to express disappointment that he had not been consulted before the decision was made. Murr said he was not the person to answer the Mayor's questions but offered to get the name of someone who was. (Later, with Dolan's agreement, Murr gave Dolan's name to the Mayor's office.) Murr also advised Horowitz and Horner of the Mayor's call. : November 14 - LRD received the proposed Justice report for clearance and gave it to the D.C. Government for comment. (The response took the form of formal communications from the D.C. Council to Fred Fielding and from the Mayor to the President. In addition, the Mayor talked by phone to Executive branch officials (Dolan, Horowitz, Horner)) November 15 - After discussions between OMB (GC and LRD), White House Counsel's office, and Justice on the report, it was cleared. Now -- after all that, the Mayor is disappointed about not being consulted before the decision was made and being informed of the decision at what he considers was the last minute. Moreover, he is angry about the decision because he views it as a direct attack on home rule, as well as having a negative effect on the District's ability to issue debt obligations. III. In the Future OMB suggests that we continue to bring the D.C. Government into the clearance process only when legislation involves the unique relationship between D.C. and the Federal Government -- for example, (a) authorization of the Federal payment to the District, (b) authority for the District to borrow from the Treasury until it is able to borrow into the market, (c) transfer of ownership of RFK Stadium from the Federal Government to the District, and (d) determination of the financial responsibilities of the two governments for the unfunded liability of the pension system for D.C. Government employees. Legislative issues stemming from that unique relationship do not occur often. When they do occur, however, our people feel that getting the D.C. Government involved early in their consideration is helpful. That is true whether the issue is presented in a draft bill undergoing Executive branch review or in a proposed report on a bill pending in a congressional committee. They can give us useful facts and analysis; its views can lead to constructive changes in position; and discussing disagreements, even if they aren't resolved, can soften D.C.'s public comments later. (The disadvantage is that sometimes we read about the disagreements in the morning paper sooner than we'd like.) Our handling of this recent matter did differ from our usual practice of bringing the D.C. Government into the process before the Administration has made a final decision. In this case, we informed D.C. of our position after it was decided, only later giving D.C. an opportunity to review Justice's proposed report setting forth the reasons for the position. All in all, we think we end up better off dealing with D.C. as we do, even with occasional moments of discomfort, than we would if we cut them out of the process. If this does not seem to be an appropriate process, let me know. CC: Ed Meese Dave Stockman Don Moran Jim Frey Mike Horowitz THE WHITE HOUSE WASHINGTON March 12, 1984 MEMORANDUM FOR FRED F. FIELDING RICHARD A. HAUSER FROM: JOHN G. ROBERTS SUBJECT: D.C. Chadha Overview The Department of Justice concluded that the Supreme Court's decision in INS V. Chadha applies to the legislative vetoes in the D.C. Self-Government and Governmental Reorganization Act (popularly known as the Home Rule Act). An argument can be made -- and has been made by D.C. officials -- that Chadha does not apply to the Home Rule Act, because of Congress's plenary powers with respect to District affairs. Justice considered and rejected this argument. The Home Rule Act has two types of legislative vetoes: a two-house veto for most matters and a one-house veto for criminal matters. Congress has, therefore, always retained more control over District criminal matters. In the wake of Chadha the District proposed amending the Home Rule Act to delete the legislative vetoes and replace them with "report and wait" provisions. To block District actions Congress would have to pass a law before the actions took effect. This proposal passed the House after OMB erroneously advised the House that the Administration had no objection. Justice and our office found out about it in time to stop Senate passage; the matter is currently pending before Senator Mathias's committee. The Administration formally proposed that the Home Rule Act be amended so that a "report and wait" provision would apply to most District actions, with the exception of criminal laws. District proposals affecting criminal laws would only become effective if affirmatively approved by Congress. All other proposals would become effective unless Congress passed a law disapproving them during the specified "wait" period. District officials objected that we were turning back the clock on Home Rule. We responded that we were simply carrying forward the distinction in the original Home Rule Act giving Congress greater control over criminal - 2 - laws. We also stressed the Federal interest in the criminal area: Federal prosecutors bring the cases, judges appointed by the President hear them, and U.S. Marshals are responsible for the convicts. The District next proposed the so-called "short form" D.C. Chadha bill, which would ratify all past D.C. Council acts and provide that any unconstitutional provision in the Home Rule act was severable. The Administration refused to accept this. The effect of the "short form" bill would be the same as the original District proposal: the unconstitutional legislative vetoes would be severed, requiring Congress to pass a law if it wanted to block D.C. Council proposals. A crisis loomed because of the District's inability to enter the bond market with the Chadha "cloud" over the government's authority. This crisis was defused when OMB and the District were able to agree on short-term borrowing for the District. Another crisis developed in the area of criminal prosecutions. In United States V. Cole, the defendant, charged with various sexual assault crimes, contended that he was improperly charged. He argued that he should have been charged under the more liberal sexual assault bill proposed by the D.C. Council but vetoed by Congress, pursuant to the unconstitutional legislative veto provision. Judge Smith, hearing the case, asked for the views of the United States. The U.S. Attorneys office originally tried to dodge the issue, but the judge demanded a response. The government has now filed a response arguing that Chadha does apply to the Home Rule Act, but that no convictions need be overturned. According to Justice, the vetoed sexual assault bill never became a law on which the defendant can be said to have relied. Negotiations continue between Justice and Mayor Barry. Lowell Jensen met with the Mayor last week, although they made little progress. The Mayor called Mike Horowitz yesterday, generally raising several possibilities, including different treatment for different types of criminal laws (felonies/misdemeanors), and removing fast-track provisions, which make it easier for Congress to disapprove acts in the civil area, in exchange for accepting the requirement of approval in the criminal area. - 3 - The proposal to trigger the requirement of Congressional approval in the criminal area by Attorney General objection has been raised in meetings between Justice and the Mayor. The Mayor, who originally suggested this compromise, is now backing away from it and, according to Horowitz, will deny having proposed it. Important Points to Make: -- Negotiations with District officials are being handled by the Justice Department, not the White House directly. -- The Administration position does not turn back the clock on Home Rule. Under the Administration's proposal, the District will have a freer hand than ever before. The narrow exception for criminal law matters is consistent with the distinction in the original Home Rule Act. -- No criminal convictions need be overturned because of the Administration's position. Chc Washington Post DATE: 2/22/84 PAGE: C-2 Judge Orders U.S. Attorney To Explain Home-Rule Effect By Ed Bruske he was charged under is void because Washington Post Staff Writer of the high court ruling. A D.C. Superior Court judge, in a Under the ruling, defense lawyers highly unusual move, has ordered contend that the convictions of de- the U.S. Attorney's office to spell out fendants such as Cole should be how a U.S. Supreme Court ruling overturned because the House had barring legislative vetoes may affect no right to veto reform legislation the District's home rule charter. the city passed in 1981 to replace Judge Donald S. Smith has given the sexual assault statute under prosecutors until March 5 to answer a which Cole was charged. City attor- series of questions central to claims neys argue the Supreme Court de- that criminal convictions under the cision doesn't apply to the District. city's sexual assault statute should be Prosecutors have been placed in the overturned because of the ruling. position of, on the one hand, support- Until now, prosecutors have ing the Justice view that the Supreme avoided addressing in court the issue Court ruling applies to the District of whether the Supreme Court deci- and, on the other, trying to uphold sion applies to the District, apparent- hundreds of criminal convictions. ly hoping Congress would resolve it. They have told Smith in court The Supreme Court ruled last briefs that the judge need not ad- year that Congress cannot veto ac- dress the question of whether the tions of the executive branch of gov- ruling applies here because the Su- ernment. The U.S. Justice Depart- preme Court previously has held ment has taken the position that the that its decision should not be ap- ruling applies to the District, where plied retroactively if doing 80 would criminal laws passed by the city gov- upset the criminal justice system. ernment are subject to veto by either City officials have accused Justice house of Congress. of avoiding the issue as part of a Smith's order was made in the case broader scheme to increase federal of Sylvester Cole, who was convicted controls over city lawmaking. of having sex with a minor. Cole's at- A source in the U.S. Attorney's of- torneys from the D.C. Public Defender fice said yesterday that Justice officials Service argue that the criminal code would comply with Smith's order. DOJ-1983-04 19 DATE: 2-7-84 The Washington Post PAGE: A1 Home Rule Issue Puts Sex Assault Cases on Hold challes By Ed Bruske Washington Post Staff Writer A D.C. Superior Court judge yes- DiGenova declined to state Jus- Lice's position on the matter, but he the end of the week. Smith sum- terday suspended all action on sex- ual assault cases in his court until said his office would continue to in- moned Steven Gordon. chief of the the U.S. Attorney's office responds dict and prosecute sexual assault felony division of the U.S. attorney's cases despite Smith's ruling. "The office, into court and explained his to challenges lodged against the Dis- decision. trict's home rule charter. law is on the books. It is to be en- Smith said that in recent weeks Judge Donald S. Smith said he forced until it is struck down," he will not hold any trials, accept any said. he had repeatedly asked Gordon for guilty pleas or hand out any sen- : The Justice Department has a response, and until yesterday had held off acting because Gordon had tences in cases involving the city's taken the position that the Supreme assured him the defense arguments sexual assault codes until prosecu- Court ruling applies to the D.C. "were just fluff." fors respond to defense arguments home rule charter. That stance has that the criminal statutes are uncon- "I" know it's a very important put officials in the U.S. attorney's of- stitutional. problem, but I'd like to get their fice in the awkward position of, on [federal prosecutors'] answer." Smith "If there's a substantial legal prob- lem, we may have to dismiss all the the one hand, contending that home said. "As soon as we get some idea of indictments" in sexual assault cases, rule is affected by the high court's what the government's position is. it Smith said yesterday. "To keep try- decision, and, on the other, trying to shouldn't be any problem. We can protect thousands of local criminal rule one way or the other." ing them could prove to be a real convictions that could be jeopardized One other appeal has been filed in problem. That's a waste of my time." by the ruling. A Supreme Court ruling last year Superior Court since the Supreme barring legislative vetoes-the mech- Smith's action yesterday is not Court ruling. In that case. Judge Paul anism by which Congress can overturn binding on any of the court's other F. McArdle is considering a challenge laws passed by the city-prompted de- judges and there was no indication to one of the city's theft statutes. fense attorneys to challenge both the that any other judges would take Larry P. Polansky, D.C. Court Sys- District's home rule charter and the similar steps. tem executive officer, said Smith's are city's sexual assault laws. In two cases pending before Smith, tion was not without precedent and The lawyers argue that under the the D.C. Public Defender Service has that he knew of no action the court Supreme Court ruling, the city's cur- appealed the convictions of two men might take against Smith to force the rent sexual assault statutes are void charged with sexual assault, arguing judge to hear cases. because the House exercised its veto that the Supreme Court ruling voids the criminal statutes. Following the Supreme Court de- authority when it rescinded the city's 1981 Sexual Assault Reform Act. Attorneys for the city have filed a cision last year, Justice told congres- The highly unusual action yester- request to intervene in at least one sional leaders that all criminal laws case, arguing that the Supreme passed by the city should be ap- day by Smith, one of three judges on the court who hear the most serious Court never intended for its decision proved by both houses of Congress felony cases, came amid fears that to apply to District laws, and that and sent to the president. thousands of criminal convictions the issue of legislative vetoes should City officials maintain this would ! could he overturned as a result of be viewed separately. The Public be a step backward from home rule the high court ruling. Defender Service filed its appeal in and have been pressing Congress to one of the cases Dec. 19. U.S. Attorney Joseph E. diGenova pass legislation clarifying the city's yesterday said he has met with Dep- Smith yesterday postponed one lawmaking authority. uty Attorney General Edward C. trial after the defendant's lawyers Schmults and Solicitor General Rex E. said he would file a similar appeal by Lee to formulate a response to the de- fense claims. It will be filed with the court in the next few days, he said. "We understand the court's con- cerns and that's exactly why we've spent a little more time filing our ul- timate position," diGenova said. "We're just trying to be profession- al." DOJ-1983-04 DATE: 11-22-83 The Washington Post PAGE: A20 So Much for Democracy in D.C. G IVE THE White House and Congress "credit" existence of this D.C. government is in question. for underscoring two unpleasant facts of life in Previous Republican administrations had a fine the District of Columbia. 1) Local democracy-self- record in helping to bring local democracy to the capi- government like that enjoyed in every other Amer- tal city-the D.C. home rule bill was enacted during ican city-is fragile enough to be undermined by co- the Nixon administration. So you might think the lonial thinking in the Reagan administration. Reagan White House would care just a bit about pull- 2) The functioning of an elected city government is ing the rug out from under self-government. Far from easily obstructed by negligence on Capitol Hill. So it it: "We are taking the position that the present [home is that the standing and authority of its elected local rule] law is unconstitutional," says an administration government are in legal jeopardy in the District official who asked not to be named. today. No matter-the federal fathers will take care of First the Reagan administration launched a sur- the District. Just look at how well Congress took prise attack on local self-determination, proposing care of things already: that Congress reclaim tight control over all criminal It failed to pass legislation adding seven des- laws in the District. To make matters worse, the ad- perately needed judgeships to the D.C. Superior ministration went to work on certain senators to Court. Talk about criminal laws-what about jus- hold out for this regressive move. The result was tice? The backlog of cases is huge and growing. Senate opposition to a bill that would clarify the It failed to pass legislation to permit a more ef- District's home rule authority in the wake of a Su- ficient, local ownership of the Robert F. Kennedy preme Court ruling on legislative vetoes. Stadium. Right there, sad to report, is just where Congress It failed even to enact a proposal for establish- left everything as it bolted, not to return until Jan. ing a formula for the annual federal payment to the 23. From now until some indefinite moment of reso- District. lution-either in Congress or the courts-the very What a grand example for the free world. DOJ-1983-04 37 istice Letter The Washington Post, Wednesday, November 16, 1983, Page Al aps Laws $ Safety Threat By Ed Bruske Washington Post Staff Writer The U.S. Justice Department, m attempt to get support for its posal for tighter congressional trol of the District's criminal e, is suggesting that actions taken city officials threaten public este here. in a draft letter obtained by The Justice Letter Is Called Slap at D.C. Home Rule shington Rost, Robert A. Me 1, assistant attorney general for CODE, From AI Charles Mathias (R-Md.), a key member of the don't think there's any bad faith here or islative affairs cited several pieces. of Tape; murder and armed offenses, Another Senate's Committee pn: Governmental Affairs, sire to go back on home rule." the official sa city legislation as examples that would give the mayor emergency powers to release which will consider the proposal. "We don't want There have been some strong differences of op sed "substantial concern for the some prisoners when prisons become overcrowded, that provision in there. We are totally opposed." ion [between the U.S. Attorney's office and t ety of congressmen, government and à third would give judges more time to recon- "It's 80 home rule," said Pauline Schneider, city] but nothing widespread The office enjo cutives, foreign officials, visiting sider sentences they have meted out. D.C. director of intergovernmental relations. what I think fundamentally is a good relationsl rists, government property and McConnell also cited a 1981 city measure to "They don't think the District of Columbia can with everybody. general public in Washington manage in terms of criminal affairs. In the draft, Connell wrote that "the sizal form sexual assault laws in the city, the only A top White House official said City Council Chairman David Clarke, while de diplomatic community underscores the federal minal legislation, city officials said, ever vetoed letter is expected to be approved clining to comment on the letter directly, said Jus- terest in the enactment, enforcement and int By Congress. the federal Office of Management tice's position ignores years of cooperation be pretation of the criminal laws governing the D [We] believe that Congress, through the d Budget today and will become tween the city and federal officials. trict. slative process, should retain the opportunity rt of the Reagan administration's A high-ranking official with the U.S. Attorney's The recommendations were made by the a to review the wisdom of such proposals," Mc Con ficial policy on the matter. The office downplayed the letter and its examples, say- tice Department as part of discussions over a b nell wrote. "We believe that the primary respon ter is intended for a Senate subs ing it only reflects normal procedure for lobbying already passed by the House and pending in HibHity of the Congress and the President should mittee on Governmental Affairst the Hill and that the office continues to have a Senate, to change the way Congress can veto ci Specifically, McConnell named be maintained in this area. good relationship" with the city. approved legislation. ree bills pending before the City The letter immediately caused concern among "I think they're doing what anybody would do Justice has proposed that any changes in runcil's judiciary committee that Home Rule proponents in Congress and ignited when they go! before the legislative body. They city's criminal code must be approved by bi ncern Justice officials One bill tempers in the District Building. One District of want to pick examples to support their position,' houses of Congress and then sent to the preside ould reduce minimum prison sent ficial called It a slap in the face at home rule govt said the official in the U.S. Attorney's office. "Us. instead of the present procedure in which chan nces for some offenders convicted erament" and mark of distrust ing examples is a normal way of going about ad become law automatically unless vetoed by See CODE, A6, Col. 1 the destroys home ruler said an aide to Sen. vising the committees House or Senate, The Bashington Times DATE: 3-15-84 PAGE: 2C COMMENTARY and so Chadha simply doesn't ap- ply. Perhaps more important, the Su- preme Court can be determinedly tive laws. The Supreme Court has IAN GILBERT practical when asked to apply ret- better things to do with its time than roactively its most hair-raising de- pull congressional chestnuts from cisions. A famous example is the the fire. 1966 Miranda decision requiring Lower courts shouldn't have to the police to inform suspects of waste their time on convicts who Chadha, their rights before asking any ques- are unlikely to be set free by the tions. The court expressly said that high court no matter what view it the new rule didn't apply to anyone takes of Chadha's impact on the home rule - except Ernesto Miranda - District of Columbia. And the city's whose trial began before the de- citizens and politicians are being cision was published. kept in unnecessary suspense. Con- Another practical device the gress should turn its attention to the "The Congress shall have court might use if it finds a consti- issue and get it out of the way. power To exercise exclusive tutional flaw in the home rule law legislation in all cases whatsoever. was recently applied in the 1982 de- Ian Gilbert, an editorial writer for over such district (not exceeding 10 cision invalidating the 1978 bank- The Washington Times, is a lawyer miles square) as may, by cession of ruptcy statute. The court there said particular states, and the accep- its decision would not take effect for tance of Congress, become the seat two months (later extended). hop- of the government of the United ing that Congress would meantime States " change the law. - Constitution, article I. That Congress hasn't yet acted on section 8, clause 17. the bankruptcy problem isn't the ast year the Supreme Court court's fault. The point to remem- L found unconstitutional the ber is that the court's decisions legislative veto, the buck- have no immediate effect unless the passing device by which justices want them to. Whether Congress tells executive de- D.C.'s home rule charter is constitu- partments and independent agen- tional is arguable, but there's no cies, "Do whatever you want: if we reason to expect anarchy when the don't like it, we'll let you know." Supreme Court finally rules. Chadha vs. Immigration and There is, of course, another solu- Naturalization Service threw more tion. It's so simple, though, that it's than 150 federal statutes into ques- unlikely to happen. Both houses of tion. It also threw the D.C. govern- Congress should pass, and the pres- ment into a tizzy. ident should sign, legislation ratify- The present District government ing everything the D.C. Council and was created by federal statute in mayor have enacted so far. The 1973, approved by local voters in home rule law should be amended 1974. While granting sweeping leg- - this can all be done in one bill, 30 islative powers to City Council and or 40 lines long - to provide that no the mayor, Congress retained a congressional veto of city action is "one-house veto," permitting either effective unless both houses concur house acting alone to kill any D.C. and the president approves. law within 30 legislative days of en- That would give the city more actment. home rule power than Congress in- If the court's ruling applies to tended to bestow, since opponents Congress's power over the District, of city actions will obviously have then as some D.C. convicts are more difficulty convincing both now contending criminal stat- houses they should veto than they utes, tax laws, and everything else now have persuading only one. City Council has done over the past If, however, Congress decided to 10 years is in doubt. strip the city of its limited indepen- Whether Chadha applies to Dis- dence, the charter amendment trict home rule is far from clear. would state that no city action For one thing, the court wasn't look- would become law until both houses ing at article I, section 8, clause 17, ratified it and the chief executive and judges often rely on finely split signed off. City Council would be- hairs when they don't want to apply come little more than an advisory a seemingly relevant rule to a new commission elected by D.C. citi- case. zens, to be sure, but impotent none- Thus, a court may look at an ear- theless. The mayor would become lier opinion about four-legged dogs city manager, retaining executive and then refuse to follow it because authority but losing much of his po- it failed to mention whether the litical impact. dogs had tails. The justices could If Congress does nothing, the is- simply say that Congress's relation- sue will eventually reach the Su- ship with the District is unique - preme Court, thanks to the convicts sui generis, if you want your friends who are claiming they were pun- to think you went to law school - ished under constitutionally defec- 45 DATE: The Washington Post 3/16/84 PAGE: C.3 Fauntroy Vows to Fight Home Rule Compromise By Sandra Evans Teeley legislation to correct the problem- and Ed Bruske which the city supports and Faun- Washington Post Staff Writers troy vows to fight to retain-would D.C. Del. Walter E. Fauntroy said make it more difficult for Congress yesterday he will "resist with every to overturn city laws by requiring resource at my disposal" efforts to that both houses and the president compromise on legislation approved act to disapprove city-passed mea- by the House last year to deal with sures. problems with the District home rule The Reagan administration sup- charter. ports Justice Department efforts to Last fall, after the Reagan admin- make it easier to overturn city istration objected to the legislation, changes in the D.C. criminal code. which had been endorsed by the Dis- Under the latest administration trict and key members of Congress, offer, if the attorney general ob- action on it stopped in the Senate jected to a criminal code change, and the city and the Justice Depart- both houses of Congress and the ment began negotiating compromise president would have to act to ap- approaches. prove the measure or it could not But Fauntroy said yesterday that take effect. he will fight to maintain the original U.S. Attorney Joseph E. di- plan, despite the administration ob- Genova, who used to be a top aide jections and the city's efforts to find to Mathias, has said that the Jus- an acceptable alternative. If the Sen- tice Department's latest proposal is ate passes a different version, he will its "final position." But District "hold firm in conference," Fauntroy Mayor Marion Barry is opposed to said. the idea. "I am resolute, and puzzled as to DiGenova told a group of Dis- why at this time on this issue these trict businessmen that city resi- questions have been raised," Faun- dents should be pleased with the troy said. record of federal involvement in Meanwhile, Sen. Charles McC. the city. Mathias (R-Md.), chairman of the "People have been served well by Senate Governmental Affairs sub- having the power and the might of committee on the District, set hear- the Justice Department as their ings on the home rule problem for prosecutor," he said, adding, "If it isn't broken, don't fix it." April 25 in hopes of spurring some Meanwhile, Fred Abramson, for- movement on the issues. The hearings will seek ways to mer chairman of the city's judicial nominations commission, said yes- deal with Congress' historical con- terday he was "incensed" by a White cern about the criminal law area House official's published comments "without weakening home rule," a Wednesday that the local commis- Mathias aide said. sion is to blame for not nominating The problem stems from a Su- more qualified blacks and minorities preme Court decision prohibiting for judgeships. legislative vetoes, the method by "I don't think they're being honest which Congress can disapprove city about this," Abramson said. "That's legislation. just an absolute insult to the candi- The House-approved version of dates the commission has chosen." DOJ-1983-04 DATE: 3-17-84 The Washington Post PAGE: 3-1 Judge Suggests City Can't Make Criminal Laws Some of prosecutors worst fears about possible fallout from legal problems with the city's charter are beginning to come true in the city's By Ed Bruske courts, where appeals questioning Washington Post Staff Writer the validity of D.C. criminal codes A D.C. Superior Court judge yes- are streaming in. Court ruling last year barring legis- terday suggested that Congress lative vetoes, the mechanism by Between 50 and 70 such appeals never would have granted the city which Congress has maintained au- have been filed, and one prosecutor authority to make criminal laws thority to overturn changes the city said these are "only the beginning." under home rule without retaining makes in local criminal laws. Concerns are mounting among attor- the ability of either house of Con- neys for the federal government and The one time that Congress ex- gress to overturn measures passed by the city that the situation will turn ercised this authority in the area of to chaos. the District. criminal law was when the House ve- "This is a very viable argument toed the 1981 Sexual Assault Re- U.S. Attorney Michael W. Farrell, that Congress never would have sent arguing that the Supreme Court rul- form Act, which city lawmakers had the city authority to make criminal passed in an attempt to streamline ing applies to home rule, yesterday laws" without retaining a veto mech- the city's sexual code. conceded in court that the congres- sional veto of the sexual assault re- anism, Judge Donald S. Smith told The D.C. Public Defender's office form act was improper, but told attorneys at a court hearing yester- contends that the House had no Smith that the Supreme Court's rul- day. "There was a lot of reluctance" right to veto the law and that the re- ing should not be applied retroac- in Congress to delegate that author- form act legally is on the books. tively and that the convictions ity, he said. "You read it there in the Prosecutors' continued use of the old should stand. legislative history. They were very sexual assault statute, defense law- John H. Suda, principal deputy reluctant." yers contend, was improper, and D.C. Corporation Counsel, argued If Smith incorporates those views convictions obtained since the veto that the Supreme Court ruling does in a formal court ruling, it would should be overturned. not apply to D.C. home rule because represent a major setback for the The significant difference for Cole Congress has exclusive jurisdiction city government and the U.S. Justice is that under the reform act he could Department, both of which have be punished by a maximum of 20 over the District and can delegate its lawmaking authority to city officials been trying to limit the impact of years in prison, while he currently as it chooses. legal problems surrounding the city's faces a life term. Officials have expressed hope that home rule charter. One official in the U.S. Attorney's Such a ruling by Smith would in- office said he "would be shocked" if Congress will legislate a remedy to the city's charter, but even if that is dicate that the city has no authority Smith did not rule along the lines he done, they say, hundreds of appeals to make criminal laws. And although suggested yesterday, raising the will likely be brought-and several it would not bind other judges on specter of the city's theft and sexual thorny legal issues will remain-be- the court-and it likely would be ap- assault statutes-both passed by the fore a definitive ruling on home rule pealed-it would set a precedent District government since home rule can be reached by the courts. that other judges might follow. was granted in 1973-falling by the Attorneys for the city and the wayside. "Until we see some judicial guid- ance, we're at as much of a loss as Smith could, however, be pre- anyone to know what to do that isn't U.S. Attorney's office have been empted by another Superior Court judicially offensive," said one Justice closely watching Smith's actions in judge, Robert A. Shuker, who is ex- pected to rule on a similar appeal Department official. "We're just the case for an indication of where waiting for one judge to rule 80 that judicial sentiment lies on the home before March 28, when the case over rule issues. which he is presiding is scheduled to we can take it up to the court of ap- peals as quickly as possible." Smith's remarks came during 8 go to trial. At a hearing earlier this hearing on the appeal of Sylvester week, Shuker voiced similar concerns about Congress' intent when it Cole, convicted of aiding and abet- granted the city authority over crim- ting a codefendant in having sex inal code changes. with a minor. Attorneys for Cole 32 maintain that the conviction should be overturned because of a Supreme DOJ-1983-04 DATE: The Washington Post 3/14/84 PAGE: / White House backs Justice No Help for D.C. Home Rule By Ed Bruske "We're not against home rule," he Fauntroy recently criticized the and Sandra Evans Teeley said. "We're not trying to turn back White House for not appointing Washington Post Staff Writers the clock." more blacks and other minorities to The White House will stand be- The administration's push for leg- D.C. judgeships. hind efforts to tighten executive islation tightening controls on The Reagan administration will branch controls over District of Co- changes in the city's criminal code resist any effort to impose "racial lumbia lawmaking and, as long as corresponds with Congress' original quotas" on the city's courts, the President Reagan remains in office, intent when it granted local author- White House official said yesterday, will oppose the city's push for au- ities home rule more than a decade and he blamed the city's judicial thority to appoint judges and pros- ago, the official said. nominations commission for failing ecute local crimes, a senior White City and Justice Department of- to nominate more qualified minority House official said yesterday. ficials were at an impasse again yes- candidates for judgeships. He crit- "We just want to make sure the terday in their attempt to resolve icized the commission for rejecting Justice Department is comfortable home rule problems that arose be- judicial candidates sought out and with the criminal provisions that are cause of a Supreme Court ruling bar- supported by the White House, in- passed" by the city government, said ring legislative vetoes, the mecha- cluding blacks, he said. the official, who agreed to be inter- nism by which Congress has retained "The court should have the very viewed with the understanding that authority to overturn laws passed by best that we can find," he said. "The he would not be named. the city government. first requirement is competence and In the decade since home rule was The administration's preferred ability, and it has nothing to do with enacted, the Justice Department and approach would have Congress and the demographics of a community." the executive branch have had no the president act affirmatively on Schneider and the White House official involvement in such local every legislative change in the D.C. official said that the stalemate over criminal code. The city wants all leg- home rule not only has created un- legislation, though Congress has had islation to go into effect automatic- certainty in the city's courts, where the opportunity to review and over- ally unless both houses of Congress defense attorneys have challenged turn D.C. laws. and the president disapprove it. The the validity of some criminal laws The administration also would two sides have been trying since last under the Supreme Court's findings, like to have increased White House fall to reach a compromise approach but could lead to direct financial authority to find and choose candi- to present to Congress. losses for the District. dates for city judgeships and favors On Friday, Justice rejected the Unless the legal issues clouding lifting requirements that judicial city's most recent proposal to lengthen home rule are resolved by June 1, candidates live in the District, the the review period during which Con- the city will forfeit upward of official said. gress can overturn D.C. legislation. $385,000 it already has spent on the Currently, a judicial nominations A proposal approved earlier by planned issuance of moderate-hous- commission picks three candidates Justice and the White House to es- ing revenue bonds. About $30 mil- for each vacancy, and the president tablish a "trigger" mechanism-re- lion to purchase the bonds is being nominates one of them. Former pres- quiring Congress and the president held in escrow pending a resolution ident Jimmy Carter supported shift- to affirm any criminal code change of the legal issues. According to doc- ing appointment authority to the determined to involve a federal in- uments recently obtained by The District's mayor, and the idea has terest-is "not something [Mayor Washington Post, those funds would been endorsed by a number of con- Barry] wants to buy into," said Paul- revert to the purchaser on June 1 gressmen, including some key Re- ine Schneider, D.C. director of inter- and no bonds would be issued. publicans. governmental relations. "The administration has not been If the Justice Department and the convinced that the federal presence city ever do come to an agreement, the proposal then is likely to run [in the District] is not unique and into trouble in the House, which last shouldn't be preserved," the White year approved the city's preferred House official said yesterday. "I version. guess that rankles people who want House District Committee Chair- D.C. to be a state, but there is a dif- man Ronald V. Dellums (D-Calif.) ference in this community." and D.C. Del. Walter E. Fauntroy The official acknowledged that "will never agree to any diminution administration policy on home rule of home rule authority," said com- would not advance local autonomy, mittee majority staff director Ed- but denied that it represents a re- ward C. Sylvester. versal. DOJ-1985-04 DATE: 3-15-84 The Washington Post PAGE: C-1 Since then, the two sides have been trying Mathias Seeks to fashion a compromise to present to Ma- as a fallback position in case a final thias' subcommittee, but this week were as compromise could not be reached far apart as ever, with each rejecting the lat- before the current Congress adjourns Home Rule est proposals of the other. later this year. That proposal, orig- "He wants to get all of the material on the inally presented to Congress last fall, record 80 people can see where they dis- was intended as a stop-gap measure agree," Mathias' aide said. to enable the city to issue bonds. Settlement But diGenova said, "I not sure the hear- It would have verified all previ- ings will be of any benefit I would not ously enacted laws and stated that if expect the department to go any further a court ruled the legislative veto pro- Reagan Administration, than [it's latest proposal], and I don't think vision of the Home Rule Act invalid they should." the entire act would not be over- District at Loggerheads The home rule problem arose last summer turned. because of a Supreme Court ruling barring Robert A. McConnell, assistant By Sandra Evans Teeley legislative vetoes, the mechanism by which attorney general for legislative af- and Ed Bruske Congress has retained authority to overturn fairs, wrote to Senate Governmental Washington Post Staff Writers laws passed by the city government. Affairs Chairman William Roth (R- Sen. Charles McC. Mathias (R-Md.), fed The Justice Department wants Congress Del.) on Monday stating the admin- up with a stalemate in negotiations between and the president to act affirmative- the Reagan administration and the District ly on certain changes in the D.C. istration's opposition to that propos- government over needed changes in the criminal code. al. Using such a procedure could re- Home Rule Act, has decided to step into the The District wants all legislation sult in D.C. Council actions becom- fray and try to force action on the issue, a to go into effect automatically unless ing law without any congressional Mathias aide said yesterday. Meanwhile, U.S. Attorney Joseph di- both houses of Congress and the review, he said. Genova said that the Justice Department president disapprove it, a procedure City officials hope that Mathias' involvement will help produce a has gone as far as it will go in compromising that would make it much more dif- on home rule matters and has given the city ficult for legislation to be over- more conciliatory attitude on the turned. part of the administration. its "final position," one that city officials say Mayor Marion Barry already has found to- Last week, the Justice Depart- House members, who last year ment rejected a city proposal incor- won approval of the legislation pre- tally unacceptable. Mathias, chairman of the Senate Govern- porating an extended congressional ferred by the city, have been urging mental Affairs subcommittee on the District, review period into its approach and the District not to back down and will call the different parties to Capitol Hill making it easier to bring resolutions not give up any home rule authority. of disapproval to a vote in each Ironically, this means that city of- for public hearings on the issue "to really house. ficials might end up having to sell a make these people settle down and discuss it," an aide to the senator said yesterday. Instead, the department advanced compromise they find unsavory to "That's terrific," said Pauline Schneider, a plan by which criminal code their friends in the House. D.C. director of intergovernmental relations. changes opposed by the attorney Schneider said that, while Mathias had made general could be enacted only by an no commitment, his staff had indicated ear- affirmative vote of Congress and the lier he would be favorably disposed to acting signature of the president. on the city's latest proposal, which was just Schneider said that proposal-giv- rejected by the Justice Department. ing the executive branch almost un- District officials had hoped Mathias, who limited veto power over D.C. crim- until now has stayed on the sidelines, would inal legislation-was one the mayor act on their behalf if the administration "categorically would not accept." maintained its hardline approach. The city On Tuesday, a senior White stands to lose financially from the impasse House official told The Washington and has few bargaining chips to take to the Post that the White House is fully negotiating table. behind efforts to make sure the Jus- Mathias suspended subcommittee work tice Department "is comfortable with last fall on legislation to resolve the home the criminal provisions" the D.C. rule problems when the Justice Department government passes in the future. objected to a plan backed by the city and In addition, on Monday the ad- key congressmen and senators. ministration officially knocked down an idea that the city had counted on 24 DOJ-1983-04 DATE: 3-15-84 The Washington Post PAGE: A-20 An Assault on Home Rule F OR NATIONAL consumption, the White no worse here than in most other cities in the coun- House story is that the administration is some- try. The local police department matches any other how protecting the country by taking over responsi- in effectiveness, technological sophistication and bilities for fighting crime in the District and moving leadership over the decade since the District was al- for new yes-or-no authority over changes in local lowed to elect its mayor and council. criminal laws. In fact, President Reagan is making a The intent of Republicans and Democrats in high-powered assault on local democracy. He seeks both houses of Congress who worked on a home tighter controls over the city's enactment of crimi- rule charter for the District was to allow locally nal laws and new power to choose candidates for elected people to perform local lawmaking func- local judgeships. He even wants to do away with a tions. The charter reserved general oversight au- requirement that exists here and in every state for thority to Congress. judges to live in the jurisdiction in which they sit. The White House official insists that "we're not A senior White House official says, "We just want trying to turn back the clock," that while all of this to make sure the Justice Department is comfortable apparently "rankles people who want D.C. to be a with the criminal provisions that are passed" by the state," there is "a difference in this community." city government. Comfortable? Does not the administration realize But you don't have to support statehood to recog- that its latest local initiative leaves to the unin- nize an attempt to return to the old plantation gov- ernment. It is an insult to D.C. residents who live, formed imagination a picture of black people and pay taxes and serve their country without represen- mindless liberals wallowing in crime they can't tation in any votes on the floors of the House or begin to control? The stereotype thus perpetuated Senate. It is an invasion of Congress' authority as is not only disgraceful but also dead wrong. Crime is stated in the city's charter. Congress should resist. 48 DOJ-1983-04 Philip A. Lacovara Dear_ - Congrobulations on the recent arrival ! Hoge everything is going P. well ATTACHMENT 1 BACKGROUND INFORMATION ON A-76 COST SAVINGS Through OMB's management review process, we identified 19,201 FTE reductions and $451.9 million in A-76 savings that could be achieved by 1988 in non-Defense agencies. The savings estimates were extremely conservative and several agencies received no projected reductions. However, all savings were premised on imple- mentation of the Circular and inclusion in the budget - a task many are still avoiding. In the course of our most recent analysis of the Grace Commission's recommendations, we made our own estimate of FTE savings available if the A-76 program were accelerated within reason. Savings through 1987 Dollars Civilian Agencies FTEs Studied FTEs Saved (millions) 1985-87 Budget projection 33,000 15,235 $272.0 Program accelerated beginning in 1985 and GSA savings reflected in charges to agencies 39,000 15,945 154.7* Total 72,000 31,180 $426.7 Department of Defense 1985-87 Budget projection 30,000 reprgm reprgm Program accelerated with no reprogramming 15,000 18,585 296.3 Total 45,000 18,585 $296.3 Grand Total 117,000 49,765 $723.0 This still represents only 5% of the Federal civilian work force. In the outyears, these savings will grow, as the program can be accelerated further (we estimate approximately 500,000 FTEs in commercial activities; under the current rate of review, cost studies would be completed over a 20-25 year cycle, rather than the 4 years required by A-76). Sizeable room for improvement exists, but our first step must be to increase agency support and compliance. Presidential and Cabinet assistance for A-76 is vital for its implementation and for the attainment of its cost savings. * Savings are spread out over 2-year periods after year A-76 study initiated. Hence, 1985-87 dollar savings from accelerated program are smaller than those available from current efforts. In outyears, the accelerated program should generate substantial additional cuts. Hughes Hubbard of Reed CALVIN J. COLLIER PHILIP A. LACOVARA 1201 Pennsylvunia Avenue, N.W. JOHN WESTBROOK FAGER PETER D. EHRENHAFT RONALD A. STERN ALLEN S. HUBBARD, JR. GERALD GOLDMAN JAY KELLY WRIGHT Wushington, D.C. 20004 EDWARD S. REDINGTON PETER M. KREINDLER OF THE DISTRICT OF COLUMBIA BAR ROWLAND STEBBINS, JR. L. HOMER SURBECK GARETT J. ALBERT MARTIN E. LOWY TELEPHONE: 202-626-6200 JOHN S. ALLEE ALAN H. McLEAN COUNSEL, TELEX: 892674 LAURA H. ALLEN JOHN C. NOVOGROD NEW YORK BAR CANDACE KRUGMAN BEINECKE KALMAN A. ORAVETZ WILLIAM L. BURKE OTIS PRATT PEARSALL PHILIP H. CURTIS POWELL PIERPOINT GEORGE A. DAVIDSON HENRY PILDNER, JR. EDWARD S. DAVIS ONE WALL STREET JEROME 1. ROSENBERG ROBERT S. ENRIGHT ROBERT SCHEFF NEW YORK, NEW YORK 10005 JOHN C. FONTAINE ORVILLE H. SCHELL 212-709-7000 JAMES W. GIDDENS CHARLES H. SCHERER THOMAS GILROY MERRIKAY S. HALL THOMAS G. SCHUELLER March 27, 1984 555 SOUTH FLOWER STREET ED KAUFMANN JEROME G. SHAPIRO LOS ANGELES, CALIFORNIA 90071 RICHARD A. KIMBALL, JR. ROBERT J. SISK 213-489-5140 NORMAN C. KLEINBERG SUSAN L. THORNER JAMES B. KOBAK, JR. DAVID R. TILLINGHAST III EAST WISCONSIN AVENUE RALPH J. KREITZMAN JOHN M. TOWNSEND OF THE NEW YORK BAR MILWAUKEE, WISCONSIN 53202 414-271-8827 WILLIAM T. BISSET HOWARD F. HART CHARLES R. COLLINS RONALD C. REDCAY JOHN A. DONOVAN NORBERT A. SCHLEI 47, AVENUE GEORGES MANDEL GEORGE G. GREGORY MALCOLM E. WHEELER 75016 PARIS, FRANCE SPENCER L. HARRISON 553-9901 OF THE CALIFORNIA BAR JAMES L. CRANE AXEL H. BAUM OF THE WISCONSIN BAR CONSEIL JURIDIQUE, PARIS WRITER'S DIRECT DIAL NUMBER: The Honorable Richard A. Hauser Deputy Counsel to the President The White House Washington, D.C. 20500 Dear Dick: Because of your interest in the District of Columbia affairs, I thought you might like to see a copy of the brief that a division of the District of Columbia Bar is asking the Board of Governors for permission to file with the Dis- trict Court here, supporting the validity of the Home Rule Act, despite the presence of the legislative veto provisions. With best regards. Sincerely, Glil Philip A. Lacovara Enclosures David B. Isbell OF President DISTRICT COLUMBIA Katherine A. Mazzaferri Executive Director THE BAR Marna S. Tucker David B. Dorsey President-Elect Assistant Executive * Director Elizabeth Medaglia 1972 Secretary Alice L. Bodley Director, Public Service Activities James E. Coleman Jr. The District of Columbia Bar Treasurer 1426 H STREET, N.W., EIGHTH FLOOR WASHINGTON, D.C. 20005 (202) 638-1500 Lawyer Referral and Information Service 638-1509 MEMORANDUM TO: Members of the Board of Governors FROM: Lynne M. Lester LML Administrative Assistant, Divisions Office DATE: March 26, 1984 SUBJECT: Proposed Amicus Curiae Brief Relating to Challenges to the District of Columbia Self-Government and Governmental Reorganization Act Pursuant to the Division Guidelines No. 13, Section a, the enclosed proposed public statement is being sent to you by Division 6 -- District of Columbia Affairs a (iii): "No later than seven (7) days before the state- ment is to be submitted to the legislative or governmental body, the Division will forward (by mail or otherwise) a one-page summary of the comments, the full text of the comments, and the full text of the legis- lative or governmental proposal to the Administrative Assistant for Divisions, and the one-page summary and the full text of the proposal to the Chairperson of each Division steering committee and any other D.C. Bar committee that appear to have an interest in the subject matter of the comments. The Administrative Assistant for Divisions shall help with the distribution, if requested, and shall forward a copy of the one- page summary to each member of the Board of Governors If no request is made to the Administrative Assistant for Divisions within the seven-day period by at least three (3) members of the Board of Governors, or by a majority vote of any steering committee or committee of the D.C. Bar, that the proposed statement be placed on the agenda of the Board of Governors, the Division may submit its comments to the appropriate fed- eral or state legislative or governmental body at the end of the seven- day period." BOARD OF GOVERNORS Robert S. Bennett Joan Z. Bernstein James E. Coleman Jr. Yvonne Conner James W. Dyke Jamie S. Gorelick David B. Isbell Patricia A. King Philip A. Lacovara Ann Kernan Macrory Judith E. McCaffrey Emily Gantz McKay Elizabeth Medaglia Alan B. Morrison John Jude O'Donnell Robert Pitofsky Charles F.C. Ruff Lois J. Schiffer Girardeau A. Spann Jacob A. Stein Marna S. Tucker William P. Vasquez Patricia A. Wynn -2- a (vi) "The Board of Governors may request that the proposed comments be placed on the agenda of the Board of Governors for the follow- ing two reasons only: (a) The matter is so closely and directly related to the administration of justice that a special meeting of the Bar's membership pursuant to Rule VI, Section 2, or a special referendum pursuant to Rule VII, Section 1, should be called, or (b) the matter does not relate closely and directly to the administration of justice, involves matters which are primarily political, or as to which evaluation by lawyers would not have particu- lar relevance. a (v) : "Another Division or Committee of the Bar may request that the proposed set of comments by a Division be placed on the Board's agenda only if such Division or Committee believes that it has greater or coextensive expertise in or jurisdiction over the subject matter, and only if (a) a short explanation of the basis for this belief and (b) an outline of proposed alternate comments of the Division or Committee are filed with both the Administrative Assistant for Divisions and the commenting Division's Chairperson. The short explanation and outline of proposed alternate comments will be forwarded by the Administrative Assistant for Divisions to the Board of Governors." a (vi) "Notice of the request that the statement be placed on the Board's agenda lodged with the Administrative Assistant for Divisions by any Board member may initially be telephoned to the Administrative Assistant (who will then inform the commenting Division), but must be supplemented by a written objection lodged within seven days of the oral objection." Please call me by 5:00 p.m., Monday, April 2, 1984 if you wish to have this matter placed on the Board of Governors' agenda for Tuesday, April 10, 1984 . I can be reached at the D.C. Bar at 638-1500 between 9:00 a.m. and 4:00 p.m. on Mondays through Fridays. Enclosures CC: Katherine A. Mazzaferri, Esq. (w/enclosures) DIVISION VI (DISTRICT OF COLUMBIA AFFAIRS) DISTRICT OF COLUMBIA BAR March 23, 1984 HAND DELIVERY Ms. Lynne Lester Administrative Assistant for Divisions District of Columbia Bar 1426 H. Street, N.W. - 8th floor Washington, D.C. 20005 RE: Amicus Curiae Brief of Division VI (D.C. Affairs) relating to challenges to the District of Columbia Self-Government and Governmental Reorganization Act. Dear Lynne: Division VI (District of Columbia Affairs) has prepared and approved through its Steering Committee the enclosed Amicus Curiae brief on the case of Dimond V. District of Columbia, with appropriate motion, which is pending before the U.S. District Court for the District of Columbia. The brief is restricted to three areas: (1) the importance of the Self-Government Act to the citizens of the District; (2) the constitutionality of Congress's delegation of legislative authority; and (3) the severability of the challenged legislative veto provisions of the Act. We believe that these issues closely involve the administration of justice as they bring into question the vitality of home rule in the District of Columbia. Moreover, it is our belief that Division VI (District of Columbia Affairs) possesses substantial expertise in the areas involved. A brief summary of the position taken in the brief is enclosed. The motion to file the amicus brief includes the standard disclaimer language verbatim. Sincerely yours, James James C. McKay, ( Jr. J Division VI (D.C. Affairs) Steering Committee 1341 G Street, N.W., S. 510 Washington, D.C. 20002 724-8188 Enclosures - 2 - SUMMARY OF AMICUS CURIAE BRIEF The brief contains three parts. Part I contains a summary of the most significant legislative provisions of the Self-Government Act and the most important legislative enactments of the Council of the District of Columbia since home rule. Part II argues that Congress's delegation to the Council of the District of Columbia under the Self-Government Act of the power to repeal or amend Acts of the Congress applicable exclusively to the District of Columbia was a correct exercise of its authority under Article I, Section 8, Clause 17 of the Constitution to "exercise exclusive legislation" over the District of Columbia. Part III argues that the provisions in Section 602(c) of the Self-Government Act that empower Congress to disapprove acts of the Council by legislative veto are severable from the remainder of the Act. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA EILEEN DIMOND, et al., : Plaintiffs, : V. : Civil Action No. 83-1938 DISTRICT OF COLUMBIA, et al. . : Defendants. : MOTION OF DIVISION VI OF THE DISTRICT OF COLUMBIA BAR FOR LEAVE TO FILE A BRIEF AS AN AMICUS CURIAE The undersigned members of the Steering Committee of Division VI (District of Columbia Affairs) of the District of Columbia Bar respectively move for leave to file a brief as an Amicus Curiae. * INTEREST OF APPLICANTS Division VI of the District of Columbia Bar is the division concerned with issues relating to the laws and government of the District of Columbia. The Division has had a longstanding interest in the operation of the District under home rule. We have focused on our particular area of expertise--the interpretation of the District of Columbia Self-Government and Governmental Reorganization Act and the impact of the home rule government on the District of *The views expressed herein represent only those of Division VI (District of Columbia Affairs) of the District of Columbia Bar and not those of the D.C. Bar or of its Board of Governors. Columbia. We take the position that the Self-Government Act is valid. The action in question, in our view, poses a potential threat to the effective operation of the District Government under home rule to the extent that arguments presented challenge the authority of the Council of the District of Columbia to exercise the legislative power of the District pursuant to the Self-Government Act. CONCLUSION Because of our interest and for the reasons stated in the accompanying Memorandum of Points and Authorities, we respectfully request that our motion to file a brief as Amicus Curiae be granted. Respectfully submitted, Jacquelyn V. Helm Cynthia A. Giordano James C. McKay, Jr. Bar No. 965228 Bar No. 290973 Bar No. 170464 (202) 724-8188 Members of the Steering Committee Division VI (D.C. Affairs) of the District of Columbia Bar - 2 - UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA EILEEN DIMOND, et al., : Plaintiffs, : V. : Civil Action No. 83-1938 DISTRICT OF COLUMBIA, et al., : Defendants. : MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE MOTION OF DIVISION VI OF THE DISTRICT OF COLUMBIA BAR FOR LEAVE TO FILE A BRIEF AS AN AMICUS CURIAE The decision whether to permit the filing of a brief amicus curiae is within the sound discretion of the Court. See 4 Am.Jur.2d Amicus Curiae, $§1-3. The sole purpose of the motion is to provide a detailed analysis of the issues with broad implications for home rule for the benefit of the Court. The District Court has permitted the filing of amicus briefs by bar organizations in other cases involving the public interest. See, e.g., Christopher V. Mitchell, 318 F.Supp. 994 (D.C.D.C. 1970), vacated, 401 U.S. 902 (1971) Public Citizen V. Sampson, 379 F.Supp. 662 (1974), aff'd, 169 U.S.App.D.C. 301, 515 F.2d 1018 (1975). UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA EILEEN DIMOND, et al., : Plaintiffs, : V. : Civil Action No. 83-1938 DISTRICT OF COLUMBIA, et al., : Defendants. : ORDER Upon consideration of the motion of Division VI of the District of Columbia Bar to file a brief as an Amicus Curiae, it is ORDERED that the motion be, and is hereby, granted. UNITED STATES DISTRICT JUDGE Date: UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA EILEEN DIMOND, et al : Plaintiffs, : V. : Civil Action No. 83-1938 DISTRICT OF COLUMBIA, et al. , : Defendants. : AMICUS CURIAE BRIEF OF DIVISION VI OF THE DISTRICT OF COLUMBIA BAR (DISTRICT OF COLUMBIA AFFAIRS) TABLE OF CONTENTS Page Table of Authorities ii Preliminary Statement 1 I. The Self-Government Act has had an Inestimable Impact on the District of Columbia 2 II. Congress's Delegation of Authority to the District Government to Repeal Acts of Congress Applicable Exclusively to the District was a Valid Exercise of its Constitutional Authority 20 III. The Challenged Provisions of the Self-Government Act are Severable from the Remainder of the Act 26 Conclusion 38 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA EILEEN DIMOND, et al., : Plaintiffs, : V. : Civil Action No. 83-1938 DISTRICT OF COLUMBIA, et al., : Defendants. : AMICUS CURIAE BRIEF OF DIVISION VI OF THE DISTRICT OF COLUMBIA BAR (DISTRICT OF COLUMBIA AFFAIRS) PRELIMINARY STATEMENT This action challenges the authority of the District of Columbia Government to exercise its legislative authority under the District of Columbia Self-Government and Governmental Reorganization Act, Pub. L. 93-198, 87 Stat. 774 (1973), (hereinafter the "Self-Government Act"). Since the issues in this case have far reaching ramifications for the vitality of home rule in the District of Columbia, Part I of this brief begins with an assesment of the impact of the Self-Government Act on the District of Columbia. Part II will show that Congress possessed the power to delegate local legislative authority to the District Government, including the authority to repeal Acts of Congress applicable exclusively to the District. And Part III will demonstrate the severability of the challenged provisions of the Self-Government Act. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA EILEEN DIMOND, et al : Plaintiffs, : V. : Civil Action No. 83-1938 DISTRICT OF COLUMBIA, et al. : Defendants. : AMICUS CURIAE BRIEF OF DIVISION VI OF THE DISTRICT OF COLUMBIA BAR (DISTRICT OF COLUMBIA AFFAIRS) PRELIMINARY STATEMENT This action challenges the authority of the District of Columbia Government to exercise its legislative authority under the District of Columbia Self-Government and Governmental Reorganization Act, Pub. L. 93-198, 87 Stat. 774 (1973), (hereinafter the "Self-Government Act"). The issues in this case have far reaching ramifications for the vitality of home rule in the District of Columbia. Our brief will be restricted to three areas. These are (1) the impact of the Self-Government Act on the District of Columbia; (2) the power of Congress to delegate to the District Government the authority to repeal congressional enactments applicable exclusively to the District; and (3) the severability of the challenged provisions of the Self-Government Act. I. The Self-Government Act has had an Inestimable Impact on the District of Columbia The enactment of the Self-Government Act is perhaps the most significant legislative act in the history of the District of Columbia. The act, which represents the culmination of more than 25 years of legislative debate, affects directly the lives of all of those who live in, work in, or visit the District. In the 9 years since its effective date, the Council of the District of Columbia has enacted 725 permanent laws pursuant to the authority delegated to it by the Act. 1 Should the validity of the Self-Government Act as a whole be successfully challenged, unimaginable chaos would result, as the myriad rights, duties and programs established by those acts--and the actions taken pursuant to those acts-would be subject to question. The Self-Government Act places primary responsibility for administering the District Government in a popularly elected Mayor, 2 and primary legislative responsibility in a 13-member locally elected legislature, the Council of the the District of Columbia. 3 Apart from establishing 1. A complete list of those laws is contained in Appendix A to this brief. 2. Self-Government Act, $401, D.C. Code, $1-242. 3. Id. $422, D.C. Code, $1-221. - 2 - the elected Mayor/Council form of government, the Act also created the Judicial Nomination Commission, which governs selection of local judges; 4 the Advisory Neighborhood Commissions, which are designed to provide greater community input into District affairs; 5 and the Office of the D.C. Auditor, who is charged with the responsibility from conducting a thorough annual audit of the accounts and operations of the government. 6 Primary responsibility for local planning was transferred from the federal government to the Mayor and the Council, 7 and the functions and composition of the National Capital Planning Commission were drastically revised. 8 In addition, the Act established as independent agencies of the District Government, the Board of Elections, the Zoning Commission, the Public Service Commission, the Armory Board, and the Board of Education. 9 The Redevelopment Land Agency, the National Capital Housing Authority, and the Manpower Administration 4. Id. $434, D.C. Code, title 11, app. at 621. 5. Id. $738, D.C. Code, $1-251. 6. Id. $455, D.C. Code, $47-117. 7. Id. $423, D.C. Code, $1-244. 8. Id. $203, D.C. Code, $§1-202, 1-2003 to 1-2006. 9. Id. §§491 to 495, D.C. Code, $$1-1303; 5-412; 43-402; 2-302; 31-101. - 3 - were established as instrumentalities of the District, rather than the federal government by the Self-Government Act. 10 In addition to the significance of the legislation contained in the Self-Government Act itself, the elected legislative body spawned by the passage of the Act has enacted over 700 legislative measures. These acts of the Council affect life in the District of Columbia from the moment of birth to the instant of death, and afterwards. Policy determinations by the Council decided questions of parentage, 11 how a birth is recorded, 12 and who may assist in the delivery. 13 Other legislative measures set standards to protect against child abuse and neglect, 14 govern the payment of child support, 15 expand the range of $5-102; D.C. Code, $1-203. 10. Id. $§204, 201, 202, D.C. Code, $5-804; D.C. Code, Divorce Act (eff. Apr. 7, 1977). 11. D.C. Law 1-107, District of Columbia Marriage and 12. D.C. Law 4-34, Vital Records Act of 1981 (eff. Oct. 8, 1981). 13. D.C. Law 5-48, Health Care and Community Residence Facility Hospice and Home Care Licensure Act of 1983 (eff. Feb. 24, 1984). 14. D.C. Law 2-22, title IV, Neglect Proceedings Amendment Act of 1977, title V, Prevention of Child Abuse and Neglect Act of 1977 (eff. Sep. 23, 1977). 15. D.C. Law 1-92, District of Columbia Paternity and Child Support Amendment Act (eff. Mar. 29, 1977). - 4 - 16 17 educational and job opportunities, and benefits, and determine the legal age of majority. 18 Such ordinary aspects of daily living as how much rent is owed, 19 the wages paid for work performed, 20 the range of hospital 16. D.C. Law 1-36, District of Columbia Postsecondary Education Reorganization Act Amendments (eff. Nov. 1, 1975); D.C. Law 2-152, School Transit Subsidy Act of 1978 (eff. Mar. 3, 1979) D.C. Law 1-95, Minority Contracting Act of 1976 (eff. Mar. 29, 1977); D.C. Law 3-91, Minority Contracting Act Amendments of 1980 (eff. Sep. 13, 1980); D.C. LAW 4-167, Minority Contracting Acts of 1976 Amendments Act of 1972 (eff. Mar 9, 1983) : D.C. Law 3-46, Youth Employment Act of 1979 (eff. Jan 5, 1980); D.C. Law 4-124, Youth Employment Act of 1979 Amendment Act of 1983 (eff. Jul. 2, 1982) D.C. Law 4-193, Youth Employment Act of 1979 Amendments/Job Skills and Placement Programs for Public Housing Residents Act of 1982 (eff. Mar. 10, 1983). 17. D.C. Law 1-32, District of Columbia Minimum Wage Amendments Act of 1975 (eff. Nov. 1, 1975) ; D.C. Law 2-129, District of Columbia Unemployment Compensation Act Amendments- of 1979 (eff. Mar. 3, 1979) D.C. Law 3-77, District of Columbia Worker's Compensation Act of 1979 (eff. Jul. 1, 1980) D.C. Law 4-102, District of Columbia Workers' Compensation Act of 1982 (eff. Apr. 22, 1982) D.C. Law 4-147, Unemployment Trust Fund Revenue and Conformity Act of 1982 (eff. Sep. 17, 1982) : D.C. Law 5-3. District of Columbia Unemployment Compensation Act Amendment Act of 1983 (eff. May 7, 1983). 18. D.C. Law 1-75, District of Columbia Age of Majority Act (eff. Jul. 22, 1976). 19. D.C. Law 2-54, Rental Housing Act of 1977 (eff. Dec. 15, 1977) D.C Law 3-106, Rental Housing Act of 1977 Extension Act of 1980 (eff. Sep. 26, 1980); D.C Law 3-131, Rental Housing Act of 1980 (eff. Mar. 4, 1981); D.C .Law 4-26, Rental Housing Act of 1980 (eff. Mar. 4, 1981) D.C. Law 4-26, Rental Housing Act of 1980 Amendments Act of 1981 (eff. Aug. 1, 1981) 20. D.C. Law 1-32, District of Columbia Minimum Wage Amendments Act of 1975 (eff. Nov. 1. 1975). - 5 - services available, 21 the confidentiality of mental health 22 records, who may marry and when (as well as the legal bases for divorce), 23 the price of automobiles 24 and credit card fees, 25 who may incorporate a business, 26 and the availability of home ownership 27 --all have been the subject of recent local legislation. Changes have been made, as well, in establishing an official definition 21. D.C. Law 5-48, Health Care and Community Residence Facility, Hospice and Home Care Licensure Act of 1983 (eff. Feb. 24, 1984); D.C. Law 3-99, District of Columbia Certificate of Need ACt of 1980 (eff. Sep. 15, 1980); D.C. Law 1-134, D.C. General Hospital Commission Act (eff. May 13, 1977) ; D.C. Law 2-89, D.C. GEneral Hospital Commission Act Amendments of 1978 (eff. Jun. 30, 1978); D.C. Law 3-65, District of Columbia Newborn Screening Requirement Act of 1979 (eff. Apr. 29, 1980). 22. D.C. Law 1-136, District of Columbia Mental Health Information Act of 1978 (eff. Mar. 3, 1979). 23. D.C. Law 1-107, District of Columbia Marriage and Divorce Act (eff. Apr. 7. 1977). 24. D.C. Law 3-135, Motor Vehicle Finance Charge Amendments Act of 1980 (eff. Mar. 5, 1981). 25. D.C. Law 5-62, Interest Rate Amendment Act (eff. Mar. 14, 1984); D.C. Law 4-70, Consumer Credit Interest Rate Amendments Act of 1981 (eff. Mar. 10, 1982). 26. D.C. Law 2-117, District of Columbia Business Corporation Act Amendments of 1978 (eff. Oct. 13, 1978). 27. D.C. Law 3-38, Interest Rate Modification Act of 1978 (eff. Nov. 20, 1979) ; D.C. Law 5-62, Interest Rate Amendment Act of 1973 (eff. Mar. 14, 1984); D.C. Law 2-135, District of Columbia Housing Finance Agency Act (eff. Mar. 3, 1979) ; D.C. Law 4-44, Home Purchase and First Right Assistance Fund Act Amendments Act of 1971 (eff. Oct. 25, 1981); D.C .Law 4-28, District of Columbia Housing Finance Agency Act Amendments Act of 1971 (eff. Aug. 5, 1981). - 6 - 28 of death, determining what means can be used to prevent the unnecessary prolonging of life against a person's expressed wishes, 29 deciding how wills are made and estates administered 30 concerning the disposition of bodies and body parts, 31 and aiding the discovery of 32 legitimate heirs. One of the most prolific areas of legislative action since the enactment of the Self-Government Act has been in the area of tax reform. The Council has enacted numerous revision measures in the areas of income tax, real property tax, sales tax, personal property tax, and business taxation. Perhaps the most important tax reform measures to date have dealt with the District's individual income tax. Prior to home rule, the District's income tax had not been comprehensively revised since 1947. At first, a number of minor measures were adopted to address the need for a more 28. D.C. Law 4-68, Uniform Determination of Death Act of 1981 (eff. Feb. 25, 1982). 29. D.C. Law 4-69, Natural Death Act of 1971 (eff. Feb. 25, 1982). 30. D.C. Law 3-72, District of Columbia probate Reform Act of 1980 (eff. Jun. 24, 1980). 31. D.C. Law 3-145, District of Columbia Tissue Bank Act Amendments of 1980 (eff. Mar. 5, 1981): D.C. Law 3-145, District of Columbia Tissue Bank Act Amendments of 1980 (eff. Mar. 5, 1981); D.C. Law 4-199, Christmas TRee Act of 1982 (eff. Mar. 10, 1983). 32. D.C. Law 3-72, District of Columbia Probate Reform Act of 1980, eff. Jun. 24, 1980. - 7 - modern statute. The Revenue Act of Fiscal Year 1978, D.C. Law 1-124 (eff. Apr. 19, 1977) brought the District's itemized deductions into greater conformity with the federal tax code in such areas as interest deductions, deductions for taxes paid, medical expense deductions, alimony, and child care. The Act to provide certain deductions for deed recordation taxes and motor vehicle fees and for the accelerated payments of taxes on insurance premium receipts, D.C. Law 2-18 (eff. Sep. 23, 1977), as the name implies, further expanded allowable income tax deductions. The District of Columbia Charitable Organizations Conformity Tax Act of 1978, D.C. Law 2-147 (eff. Mar. 3, 1979). conformed the District's income tax exemption for charitable organizations to that of the federal tax code as it relates to permitted political activities. The Tax Return Confidentiality Act of 1978, D.C. Law 2-158 (eff. Mar. 6, 1979), expanded the scope of the confidentiality provisions of District law and increased the penalty for a violation of such confidentiality. A more complete and comprehensive revision of the District's individual income tax law was adopted by the Council in 1982. The District of Columbia Individual, Estates and Trusts Federal Conformity Tax Act of 1982, D.C. Law 4-118 (eff. Jun. 11, 1982), effective for tax years beginning after December 31, 1981, adopted the federal definitions of "gross income" and "adjusted gross income" - 8 - and conformed District law to most of the federal itemized deductions, in effect for tax year 1981. The major areas of this conformity included adoption of the federal treatment of the dividend exclusion, Keogh Plans, IRA accounts, deductions for TIAA and CREF contributions, taxation of annuities, exclusions for scholarships and fellowships, deductions for moving expenses, tax treatment of reduced military retirement pay and supplemental railroad retirement annuities, charitable contributions, credits for political Campaign contributions, and interest exclusion for All Savers Certificates. This conformity was continued by the amendments made by the District of Columbia Income and Franchise Tax Conformity Act of 1983, D.C. Law 5-32 (eff. Oct. 8, 1983), which included adoption of a reduction in the allowable casualty loss deduction, expansion of the deduction for adoption expenses, expansion of the depreciation deduction, repeal of the increase in personal property accelerated cost recovery rates for personal property placed in service in or after 1985, and reduction in the exclusion of payments received as unemployment compensation. Second only to the individual income tax in the breadth of changes enacted is the District's real property tax. Under the District of Columbia Real Property Tax. Revision Act of 1974, Pub. L. 93-407, 88 Stat. 1051 (1974), enacted by Congress, all taxable real property in the District was - 9 - taxed at the rate of $1.83 per $100 of assessed value. The Residential Property Tax Relief Act of 1977, D.C. Law 2-45 (eff. Feb. 28, 1978), established a $6,000 deduction from the assessed value of single family and cooperative owned residential property. This deduction was later increased to $9,000 by the District of Columbia Renters and Homeowners Tax Reduction Act of 1978. D.C. Law 2-130 (eff. Mar. 3, 1979). The Homeowners Deduction Application Act, D.C. Law 4-129 (eff. Jul. 24, 1982), revised the manner in which the deduction is granted by making the deduction, once granted, good for 5 years at a time, rather than requiring yearly application. The Property Tax Deferral Reform Act of 1978, D.C. Law 2-119 (eff. Oct. 13, 1978) increased the maximum allowable amount of increased taxes plus interest on certain residential property upon which payment may be deferred until the house is sold or otherwise transferred. The Real Property Tax Deferral Simplification Act of 1982, D.C. Law 4-129 (eff. Jul. 24, 1982), further revised this deferral program to allow the transfer of property on which taxes had been deferred, to family members without having the taxes come due and removed the income limitations on persons qualifying for participation in this program. Finally, the real property in the District was subdivided into classes for purposes of taxation with a separate tax rate applied to each class. The District of Columbia Renters and Homeowners Tax Reduction Act of 1978, D.C. Law 2-130 (eff. Mar. 3, - 10 - 1979) established two classes of real property, and this was expanded to a three class system by the Real Property Tax Classification Act for Tax Year 1980, D.C. Law 3-37 (eff. Nov. 20, 1979). Important legislative changes in other tax areas include an increase in the sales and use tax rate from 5% to 33 6%, the imposition of a sales and use tax rate on motor vehicle parking from, 34 a repeal of the 2% sales and use tax rate on food, 35 an increase in the types of medical 36 equipment exempt from the sales and use tax, the 37 creation of a 1% tax on the transfer for real property, 38 the creation of a nightly hotel occupancy tax, increases in the per gallon tax on motor vehicle fuels, 39 an 33. D.C. Law 3-92, District of Columbia Revenue Act of 1980 (eff. Sep. 13, 1980). 34. D.C. Law 1-23, Revenue Act of 1975 (eff. Oct. 21, 1975) ; D.C. Law 1-70, Revenue Act of 1976 (eff. Jun. 15, 1976). 35. Id. 36. D.C. Law 4-133, Medical Equipment SAles Tax Exemption Act of 1982 (eff. Aug. 14, 1982). 37. D.C. Law 3-92, District of Columbia Revenue Act of 1980 (eff. Sep. 13, 1980). 38. D.C. Law 2-58, Hotel Occupancy and Surtax on Corporations and Unincorporated Business Tax Act of 1977 (eff. Mar. 16, 1978); D.C. Law 4-137, The Hotel Occupancy Tax Increase Act of 1982 (eff. Aug. 14, 1972). 39. D.C. Law 1-23, Revenue Act of 1975 (eff. Oct. 21, 1975). - 11 - increase in the gross receipts tax on public utilities, 40 and a change in the manner in which financial institutions are taxed by repealing the gross receipts tax applicable to them and replacing it with a franchise tax and a personal 41 property tax. The scope and implementation of the local tax laws have been dramatically changed by these legislative measures. Perhaps, more importantly, the relative liability of District taxpayers has shifted substantially in the years since the enactment of the Self-Government Act. For example, the numerous changes made in the property tax have not only lowered the rate and created three tax rate categories, but also have provided tax relief to certain groups of homeowners through the circuit breaker provision for senior citizens, the circuit breaker provision for low income persons, the homestead exemption, and the tax deferral program. Simply identifying what taxes are owned and by whom under a reversion to the the pre-home rule tax laws, should such reversion occur, would be a Herculean task 40. D.C. Law 5-14, District of Columbia Revenue Act of 1983 (eff. Jun. 22, 1983). 41. D.C. Law 3-95, District of Columbia Financial Institutions Tax Act of 1980 (eff. Sep. 13, 1980); D.C. Law 4-150, International Banking Facilities Tax, District of Columbia Redevelopment Act of 1945 Act amendments, and Cable Television Communications Act of 1982 Technical Clarification Amendment Act of 1982 (eff. Sep. 17, (1982). - 12 - and would throw into question the legal liabilities of all District taxpayers and the government for years to come. Another area of significant local legislative activity has been the area of criminal code reform. Under the Self-Government Act, the transfer of primary legislative authority to the District over the criminal code was delayed until 1979. 42 Although the time span of local authority over criminal code offenses has been relatively short, major legislative measures in this area have been enacted due, in large part, to the critical need for reform. As the chairmen of the House Subcommittee on Judiciary and the Senate Subcommittee on Governmental Efficiency and the District of Columbia pointed out in their joint letter, dated December 5, 1978, transferring this criminal code authority: The present criminal law of the District of Columbia is an outdated relic of mosaic statutes, cases, and administrative interpretations passed into law, in a piecemeal fashion, over a period of time that stretches from 1901 to the present. Time has changed the social mores and standards by which we live today. The criminal laws of the District have not kept pace with that change. During the past several years under the home rule form of government, significant changes have indeed been made. The District of Columbia Theft and White Collar Crimes Act of 1982, D.C. Law 4-122 (eff. Dec. 1, 1982), completely 42. Self-Government Act, $602(a) (9), D.C. Code, 1-227 (a) (9), delayed the Council's authority over titles 22, 23, and 24 of the D.C. Code. - 13 - overhauled the criminal law on bribery, obstructing justice, embezzlement, larceny, receiving stolen goods, perjury and related offenses, and, of course, theft and fraud. This legislation also added new offenses, such as shoplifting, trafficking in stolen property, and commercial piracy, changed the criminal penalties imposed for certain crimes against senior citizens, and repealed the local criminal libel statutes. The District of Columbia Bail Amendment Act of 1982, D.C. Law 4-152 (eff. Sep. 17, 1982), changed the preventive detention statutes, increased the time period during which a parole or probation violator could be detained, and permitted the detention of any person charged with first degree murder who poses a danger to the community or is likely to flee. Similar legislation had been introduced in Congress before the transfer of criminal authority, but had not been acted upon. The District of Columbia Sentencing Improvements Act of 1981, D.C. Law 4-202 (eff. Mar. 10, 1983), reinstituted split sentencing the District, set standards promoting the use of restitution and community service as a sentencing option, and contained a number of other procedural reforms. The District of Columbia Criminal Statute of Limitations Act of 1983, D.C. Law 4-104 (eff. Apr. 30, 1982) established, for the first time, a local statute of limitation for criminal offenses, including special provisions extending the statute of limitations for fraud, official misconduct, and fiduciary trust crimes. - 14 - The District of Columbia Mandatory-Minimum Sentences Initiative Act of 1981, D.C. Law 4-166 (eff. Mar. 9, 1983), passed by the citizens of the District by a citywide vote, imposed, as the name implies, mandatory minimum sentences upon persons convicted of committing certain crimes while armed and certain drug offenses. The District of Columbia Protection of Minors Act of 1982, D.C. Law 4-173 (eff. Mar. 9, 1982), prohibited persons from using a minor in sexual performances or promoting sexual performances by minors, the Anti-Intimidation and Defacing of Public or Private Property Criminal Penalty Act of 1982, D.C. Law 4-203 (eff. Mar. 10, 1983), the District of Columbia Repeal of the Death Penalty Act of 1980, D.C. Law 3-113 (eff. Feb. 26, 1981), and the Control of Prostitution and Sale of Controlled Substances in Public Places Criminal Control Act of 1981, D.C Law 4-57 (eff. Dec. 10, 1981) are other examples of criminal legislation recently enacted by the Council. Collectively, these legislative actions, together with. related criminal law measures, such as the District of Columbia Uniform Controlled Substances Act of 1981, D.C. Law 4-29 (eff. Aug. 5, 1981), and the Drug Paraphernalia Act of 1982, D.C. Law 4-149 (eff. Sep. 17, 1982), have radically changed the operations of the local criminal justice system in the years since the advent of home rule. Another major enactment in the criminal area was the District of Columbia Traffic Adjudication Act, D.C. Law 2-104 (eff. Sep. 28, 1981), which decriminalized all parking - 15 - and minor moving traffic violations and established a mechanism for the administrative adjudication of these offenses. Over 500,000 of cases have been adjudicated by the Bureau of Traffic Adjudication, rather than the Superior Court, under this act since 1978. The more than 700 measures enacted by the Council and the voters of the District of Columbia during the past several years not only reflect local concerns and priorities, but also relive the Congress of the burden of legislating on strictly local, and oft-times somewhat trivial, matters, when viewed in the context of Congress's national legislative agenda. In transferring primary legislative authority over local affairs to the District, the Council was empowered to act not only in the capacity of a "state" and "county" legislature, but also in the capacity of a municipal legislature. A quick review of some of the legislative measures enacted by the Council, as well as the ones mentioned above, illustrates the extent to which the transfer of primary legislative authority has achieved the goal of "relieving Congress of the burden of legislating upon essentially local matters." Self-Government Act, $102(a), D.C. Code, §1-201 (a) see McIntosh V. Washington, D.C. App., 395 A.2d 744, 753 (1978). During the past several years, the Council has enacted legislation governing the proper display of the District - 16 - 43 44 flag, naming bridges and other public places, establishing boundaries for Advisory Neighborhood single member districts, 45 regulating public conduct on public passenger vehicles, 46 setting surveyor user and notary public charges, 47 prohibiting smoking in public 48 places, controlling noise pollution and the public conduct of animals and their owners, 49 regulating the use of lie detectors, 50 establishing air quality and soil 43. D.C. Law 4-121, the District of Columbia Flag Display Act of 1982 (eff. Jul. 1, 1982). 44. D.C. Law 4-56, Community Park West Designation Act of 1981 (eff. Dec. 10, 1981); D.C. Law 4-192, Windon Place, Northwest, Designation Act of 1982 (eff. Mar. 10, 1983). 45. D.C. Law 5-13, Advisory Neighborhood Commission Boundaries Act of 1983 (eff. Jun. 22, 1983). 46. D.C. Law 1-18, Act To Regulate Public Conduct on Public Passenger Vehicles (Sep. 23, 1975). 47. D.C. Law Surveyor User Charges Act of 1978 (eff. Mar. 3, 1979); D.C. Law 5-52, Notaries Public Fee Act of 1983 (eff Mar. 8, 1984). 48. D.C. Law 3-22, District of Columbia Smoking Restriction Act of 1979 (eff. Sep. 28, 1979). 49. D.C. Law 3-30, Animal Control Act of 1979 (eff. Sep. 18, 1979); D.C. Law 3-97, Animal Control Act Amendments of 1980 (eff. Sep. 16, 1980); D.C. Law 2-53, District of Columbia Noise Control Amendments Act of 1979 (eff. Sep. 28, 1979). 50. D.C. Law 2-154, Prevention. of the Administration of Lie Detections Procedures Act of 1978 (Mar. 6, 1979). - 17 - erosion and sedimentary standards, 51 proscribing the use of lead-based paints, 52 regulating the conduct of second hand dealers, hearing aid dealers, health spa facilities, public accountants, pharmacists, real estate brokers, midwives, beauty shop and barber facilities and other business professionals and occupations, 53 regulating the removal of abandoned automobiles and the height, size, and type of materials used in enclosed outdoor sidewalk 54 cafes, setting threshold eligibility standards and payment levels for families receiving Aid to Families with 51. D.C. Law 2-23, Soil Erosion and Sedimentation Control Act of 1977 (eff Sep. 28, 1977); D.C. Law 2-133, Air Quality Control Regulations Amendment No. 3 of 1979 (eff. mar. 3, 1979) : D.C. Law 2-151, Air Quality Amendment Act No. 2 of 1978 (eff. Mar. 6, 1979; D.C. Law 4-143, District of Columbia Soil and Water Conservation Act of 19781 (eff. Sep. 14, 1982). 52. D.C. Law 2-28, Public Property Lead Elimination Act of 1977 (eff. Sep. 28, 1977); D.C. Law 5-35, Lead Based Paint Poisoning Prevention Act of 1983 (eff. Sep. 8, 1983). 53. D.C. Law 4-15, Secondhand Dealers Regulations and Rental Housing Act of 1980 Clarification Act of 1981 (eff. Jul. 14, 1981); D.C. Law 3-137, District of Columbia Beauty Shop and Barber Facilities Operation Extension Act of 1980 (eff. Mar. 5, 1981) D.C. Law 3-98, District of Columbia Pharmacist and Pharmacy Regulation Act of 1980 (eff. Sep. 16, 1980) ; D.C. Law 2-59, District of Columbia Public Accountancy Act of 1988 (eff. Mar. 15, 1978) D.C. Law 2-33, Hearing Aid Dealers and Consumers Act of 1977 (eff. Sep. 26, 1977); D.C. Law 5-48, Health Care and Community Residence Facility, Hospice and Home Care Licensure Act of 1983 (eff. Feb. 24, 1984) ; D.C. Law 1-62, Health Spa Consumer Protection ACt (eff. Apr. 15, 1976); DC. Law 4-209, District 1983). of Columbia Real Estate Licensure Act of 1982 (eff. Mar. 10, 54. D.C. Law 4-146, Abandoned or Unauthorized Vehicle Removal and District of Columbia Public Assistance Act Amendment Act of 1982 (eff. Sep. 15, 1982); D.C. Law 4-148, Enclosed Sidewalk Cafe Act of - 1982 I8 (eff. Sep. 14, 1982). 55 Dependent Children assistance, establishing minimum medigap insurance requirements, 56 regulating the use of security alarm systems and the management of the Washington Convention Center, 57 providing standards for harbor and boating safety, 58 and regulating the titling of boats. 59 These are some examples of the myriad enactments by the Council under home rule. These laws pervade nearly every facet of the lives of the citizens of the District. They have created a multitude of rights, duties and liabilities and are the basis of countless administrative adjudications, trials, and other official actions. 55. D.C. Law 3-3, Public Assistance Payments Act of 1979 (eff. Jun. 7, 1979); D.C. Law 4-79, Aid to Families with Dependent Children Federal Conformity Act of 1981 (eff. Mar. 16, 1982); D.C Law 4-101, District of Columbia Public Assistance Act of 1982 (eff. Apr. 6, 1982); D.C. Law 4-209, District of Columbia Public Assistance Act of 1982 Personal Needs Allowance Amendments Act of 1982 (eff. Mar. 10, 1983); D.C. Law 2-97, Amendment Eligibility Regulations for AFDC by Reason of the Unemployment of the Father Act of 1978 (eff. Aug. 12, 1978). 56. D.C. Law 5-12, Medicare Supplement Insurance Act of 1983 (eff. Jun. 22, 1983). 57. D.C. Law 3-107, Security Alarm Systems Regulations Act of 1980 (eff. Sep. 25, 1980); D.C. Law 5-54, Washington Convention Center Management Act of 1978 Amendment Act of 1983 (eff. Mar. 14, 1984). 58. D.C. Law 3-25, Harbor and Boating Safety Act of 1978 (eff. Sep. 28, 1979. 59. D.C. Law 5-58, District of Columbia Board Titling Act of 1983 (eff. Mar. 14, 1984). - 19 - II. Congress's Delegation of Authority to the District Government to Repeal Acts of Congress Applicable Exclusively to the District was a Valid Exercise of its Constitutional Authority The Self-Government Act plainly gives the District Government the authority not only to enact new local legislation, but also to enact legislation to amend or repeal Acts of Congress applicable exclusively to the District. The basic delegation of legislative authority, though subject to specific limitations, is very broad: Except as provided in sections 601, 602, and 603 [D.C. Code, $§1-206, 1-233, 47-313], the legislative power of the District shall extend to all rightful subjects of legislation within the District consistent with the Constitution of the United States and the provisions of this Act subject to all the restrictions and limitations imposed upon the States by the tenth section of the first article of the Constitution of the United States. Self-Government Act, Section 302; D.C. Code, $1-204. (Emphasis added.) An examination of one of the specific limitations on this authority leaves no doubt as to the congressional intent. Section 602 (a) (3), prohibits the Council from: "enact[ing] any act, or enact any act to amend or repeal any Act of Congress, which concerns the functions or property of the United States or which is not restricted in its application exclusively in or to the District. D.C. Code, $1-233 $1-233(a)(3). This provision necessarily implies that the Council possesses the authority to "amend or repeal" an Act of Congress which is "restricted in its - 20 - application exclusively in or to the District,' provided that this was not barred by another specific limitation. See District of Columbia V. Greater Washington Central Labor Council, D.C. App., 442 A.2d 110 (1982). cert. denied, 103 S.Ct. 1282 (1983), which upheld the authority of the Council to repeal an Act of the Congress that had made the federal Longshoremen and Harbor Worker's Act applicable to the District of Columbia. The conclusion that Congress gave the District Government this authority is confirmed by an 60 examination of the legislative history of the Act. Nor is there any merit in the argument that Congress lacked the constitutional power to delegate this authority to the District Government. In enacting the Self-Government Act, Congress exercised its power under Article I, Section 8, Clause 17, of the Constitution "[t]o exercise exclusive legislation in all cases whatsoever" over the District of Columbia. For over 30 years, it has been settled that this clause authorized Congress to delegate its legislative 60. See, e.g., Markup of Subcommittee Discussion Draft No 1, May 21, 1973) (Markup of Full Committee Draft, July 7, 1973), reprinted in Staff of the House District of Columbia Committee, Home Rule for the District of Columbia, Background and Legislative History of H.R. 9056, H.R. 9682, and Related Bills Culminating in the District of Columbia Self-Government and Governmental Reorganization Act, 93d Cong., 2d Sess. (Committee Print 1974) (hereinafter, "Home Rule History") at 1035-1037; D.C. Committee Request of Rules Committee for Rule to Take up H.R. 9682 on the Floor, October 2, 1973). Home Rule History at 1777-1778. - 21 - power over the District to a local government. In District of Columbia V. John R. Thompson Co., 346 U.S. 100 (1953), the Supreme Court upheld the validity of the Organic Act. of February 21, 1871, 16 Stat. 419, which had created the short-lived Legislative Assembly of the District of Columbia. Although the Organic Act, as the Self-Government Act, contained certain specific limitations, the basic grant of legislative power was stated in virtually identical language: "[T]he legislative power of the District shall extend to all rightful subjects of legislation within the District consistent with the Constitution of the United States and the provisions of this Act subject to all the restrictions and limitations imposed upon the States by the tenth section of the first article of the Constitution of the United States. Organic Act, $18, 16 Stat. 423; Self-Government Act, $302, D.C. Code, $1-204 (1981). Therefore, the decision in John R. Thompson, Inc. applies with full force to Congress's grant of legislative authority to the District under the 61 Self-Government Act. The great breadth of Congress's 61. There is little question that the Organic Act empowered the Legislative Assembly to amend or repeal Acts of Congress applicable exclusively to the District, subject to specific limitations. This conclusion is implicit in various sections of the Organic Act, which gave the Legislative Assembly the power, for example, "to provide for the appointment of as may justices of the peace and notaries public for said District as may be deemed necessary, to define their jurisdiction and prescribe their duties" ($24) ; "to pass laws modifying the practice [of the judicial courts of the District]" but not changing their organization ($25) ; "to create by general law, modify, repeal, or amend, within said District, corporations aggregate for religious, (Footnote continued on next page.) - 22 - authority to delegate its legislative power was reaffirmed in the more recent decision of Palmore V. United States, 411 U.S. 389, 389 (1973). It has been suggested that the Supreme Court's decision in Immigration and Naturalization Service V. Chadha, 462 U.S. , 103 S.Ct. 2764 (1983), requires acts of the Council repealing Act of Congress applicable exclusively to the District to be presented to the President under Article I, Section 7 of the Constitution. However, nothing in the holdings of Chadha--or the two decisions of similar effect in the D.C. Circuit Court that were affirmed by the Supreme Court Consumer Energy Council of America V. Federal Energy Regulation Commission, 218 U.S.App.D.C. 34, 44, 673 F.2d 425, 435 (1982), aff'd sub nom. Process Gas Consumers Group V. Consumers Energy Council of America, 463 U.S. # 103 S.Ct. 3556 (1983) and Consumers Union of the United States, Inc. V. Federal Trade Commission. 223 U.S.App.D.C. 386, 691 F.2d 575 (1982), aff'd, 463 U.S. , 103 S.Ct. 3556 (1983) would preclude Congress from delegating legislative authority over the District to the Council and Mayor in a (Footnote continued from previous page.) charitable, educational, industrial, or commercial purposes, and to define their powers and duties ($28). Act of Feb. 21, 1871, 16 Stat. 424-425, reprinted in D.C. Code, vol I, P. 98-99 (1981). See Newman & Depuy, Bringing Democracy to the Nation's Last Colony: The District of Columbia Self-Government Act, 24 Amer. Univ. L. R. 537, 724-744 (1975) for a list and summary of the Acts of the Legislative Assembly. - 23 - manner that excludes the President from a role in the exercise of this delegated authority. 62 Chadha, Consumer Energy Council, and Consumers Union dealt with the extent to which Congress could retain control over a delegation once made. They did not decide the issue of whether Congress could make the delegation in the first place. In Chadha the Court simply voided Congress's attempt to retain the power to overrule the exercise of this authority, stating that "Congress must abide by its delegation of authority until that delegation is legislatively altered or revoked." 103 S.Ct. 2784-88. As Chadha makes clear, the President's authority to veto Acts of Congress under Article I, Section 7 was intended as a procedural safeguard against Congress's exercise of the legislative power. It is not an inherent executive function. See Buckley V. Valeo, 424 U.S. 1, 285 (1976) ("the President's veto power, which gives him an important role in the legislative process, was obviously not 62. Section 404(e) of the Self-Government Act originally gave the President the authority to reinstitute a mayoral veto that had been overridden by a vote of two-thirds of the Council. See D.C. Code, $1-144 (e) (Supp. V, 1978). The power was exercised only once-when President Ford reinstituted Mayor Washington's veto of the Act 1-88 of the Council, the Shop-Book Rule Act on the grounds that it infringed upon the rulemaking powers of the D.C. Courts guaranteed under the Self-Government Act. See 12 Weekly Comp. of Pres. Doc 301 (Feb 27, 1976). At the request of President Carter, Congress deleted this provision by enacting Pub. L. 95-526, §1 (2) (A) (i), 92 Stat. 2023 (1978). See H.R. Rep. No. 95-1104, 95th Cong., 2d Sess. at 3 (1978) S. Rep. No. 95-1291, 95th Cong., 2d Sess. at 3 (1978). - 24 - considered an inherently executive function") (White, J. concurring in part and dissenting in part); Youngstown Sheet & Tube Co. V. Sawyer, 343 U.S. 579, 655 (1952) ("[t]he Executive, except for recommendation and veto, has no legislative power.") (Jackson, J., concurring) (Emphasis added). Indeed, the court in Chadha rejected the argument that the delegation to the Attorney General would constitute an unconstitutional delegation of lawmaking authority, despite the fact that the action of the Attorney General had identical effect as private Acts of Congress suspending deportation proceedings. 103 S.Ct. 2785 n. 16. In conclusion, the text and legislative history of the Self-Government Act make it clear that Congress intended to delegate to the Council of the District of Columbia the power to amend or repeal Acts of Congress applicable exclusively to the District. The decision of the Supreme Court in John R. Thompson, Co. upholding the power of Congress to delegate legislative authority to the District Government over local matters has not been overruled by Chada or any other decision. - 25 - III. The Challenged Provisions of the Self-Government Act Are Severable from the Remainder of the Act A careful examination of the text and legislative history of the Self-Government Act makes it clear that the challenged provisions of the Self-Government Act 63 are severable from the remainder of the Act. It is of no significance that the Act does not contain a routine severability clause. 64 In Consumer Energy Council, the Court found the legislative veto provision of the Natural Gas Pricing Act severable although the Act contained no severability clause. The court saw little significance in the absence of such a clause. It stated that [w]hatever relevance such an explicit clause might have in creating a presumption of severability, the ultimate determination of severability will rarely turn on the presence or absence of such a clause. 11 218 U.S.App.D.C. at 51, 673 F.2d at 42, quoting United States V. Jackson, 390 63. The challenged provisions are those portions of Section 602(c) of the Act, D.C. Code, $1-227(c), that permit Congress to disapprove acts of the Council. 64. The version passed by the Senate contained such a clause. See S. 1435, $1101, 93d Cong., 1st Sess. (1973). See Home Rule History at 2714. However, the version passed by the House lacked one. See H.R. 9682, 93d Cong., 1st Sess. (1973), Home Rule History at 2229-2357. The clause was dropped during conference without explanation. See H.R. Rep. 93-703, 93d Cong. 1st Sess. (1973), Home Rule History at 2940-3029. - 26 - U.S. 570, 585 n. 27 (1968); accord, 2 C. Sands, Sutherland Statutory Construction, $$44.08, 44.09 (1973). The basic rule with respect to severability, quoted in Chadha, 103 S.Ct. at 2774, and recently reaffirmed by the Supreme Court in Buckley V. Valeo, 424 U.S. 1, 108 (1976) is: Unless it is evident that the legislature would not have enacted those provisions which are within its power, independent of that which is not, the invalid part may be dropped, if what is left is fully operative as as law. Champlin Refining Co. V. Corporation Commission, 286 U.S. 210, 234 (1932). More generally stated: "The cardinal principle of statutory construction is to save and not to destroy." Tilton V. Richardson, 403 U.S. 672, 684 (1971), quoting NLRB V. Jones & Laughlin Steel Corp., 301 U.S. 1, 30 (1937). A corollary rule, stated by the Supreme Court in Chadha is that: "[a] provision is further presumed severable if what remains after severance is fully operable as a law. 103 S.Ct 15 2775. (Emphasis added: citation omitted.) The primary purposes stated by Congress in enacting the Self-Government Act were: to delegate certain legislative powers to the government of the District of Columbia; authorize the election of certain local officials by the registered qualified electors in the District of Columbia; grant to the inhabitants of the District of Columbia powers of local self-government: modernize, reorganize, and otherwise improve the governmental structure of the District of Columbia; and, to the greatest extent possible, consistent with the constitutional mandate, relieve Congress of the burden of legislating upon essentially local District matters. - 27 - Self-Government Act, $102(a), D.C. Code, $1-201(a). Of these purposes, "the core and primary purpose of the Self-Government Act was to 'relieve Congress of the burden of legislating upon essentially local matters'". McIntosh V. Washington, D.C. App., 395 A.2d 744, 753 (1978). As the statement in Part I, supra, of the social impact of the Act has demonstrated, the Self-Government Act has admirably served to accomplish this primary goal. Parts of one subsection of the Self-Government Act are challenged--namely, the provisions in Section 602 (c) of the Act that permit Congress to disapprove acts of the 65 Council. Even if this challenge is found to have 65. Section 602 (c) (with exceptions not applicable here) requires the Chairman of the Council to transmit to the Speaker of the House of Representatives, and the President of the Senate a copy of each act passed by the Council and presented to the Mayor and provides that: ... [N]o such act shall take effect until the end of the 30-day period (excluding Saturdays, Sundays, and holidays, and any day on which neither House is in session because of as adjournment sine die, a recess of more than 3 days, or an adjournment of more than 3 days) beginning on the day such act is transmitted by the Chairman to the Speaker of the House of Representatives and the President of the Senate and then only if during such 30-day period both Houses of Congress do not adopt a concurrent resolution disapproving such act. (Emphasis added.) D.C. Code, $1-233(c)(1). A similar, though stricter, procedure applies to acts of the Council amending Titles 22, 23 or 24 of the D.C. Code (relating to criminal law and procedure). These acts may take effect "only if during such 30-day period one House of Congress does not adopt a resolution disapproving such act." D.C. Code, $1-233 (c) (2). - 28 - merit, the legislative history of the Self-Government Act reveals that, although the question of congressional control over the District was the subject of much debate, it is hardly "evident" that Congress would not have passed the Act without Section 602(c). This is confirmed by an examination of the text of the Act as a whole, which contains many provisions other than Section 602(c) which retain congressional control over the District's legislative process. Moreover, there is no doubt whatsoever that in the absence of Section 602 (c), the Act remains "fully operable as a law" and, therefore, that the provisions are "presumed severable." II The legislative veto provisions in Section 602(c) are not necessary to any of the primary purposes stated by Congress. Moreover, an examination of the legislative history of Section 602(c) shows that it was not a crucial, or even significant, factor in the enactment of the legislation. A legislative veto provision was contained in the version of the Self-Government Act passed by the Senate. See S. 1435, $325 (g) (2) (A), 93d Cong. 1st Sess. (1973), Home Rule History at 2646. The Senate bill, however, only made the legislative veto procedure applicable to acts of the Council exercising functions "not heretofore legally exercisable by the Commissioner of the District of Columbia - 29 - or the District of Columbia Council 11 under the provisions of Reorganization Plan No. 3 of 1967. S. 1435, $325(g) (g) (1973), Home Rule History at 2646. See S. Rep. No. 93-219, 93d Cong., 1st Sess. 6 (1973), Home Rule History at 66 2726. This limited legislative veto provision was explained by Senator Eagleton during the debate on the floor of the Senate: however, it was not otherwise discussed. Senator Eagleton's main arguments in support of the Act were, first, that it was a matter of fundamental democracy and, second, that it would relieve Congress of local legislative burdens. See 119 Cong Rec. 22948, Home Rule History at 2754-2756. The version reported by the House District of Columbia Committee did not contain a legislative veto provision. See H.R. 9682, 93d Cong., 1st Sess. (1973), Home Rule History at 1224; H.R. Rep. No. 93-482, 93d Cong., 1st Sess. (1973), Home Rule History at 1435. However, when the bill came up for debate on the floor of the House, its sponsors offered a Committee Substitute to H.R. 9682, which contained a provision, 602(c), permitting congressional veto of all Council acts by concurrent resolutions. See Home Rule 66. The reorganization plan delegated to the former District of Columbia Council authority over about 430 specific areas that was described as "quasi-legislative". See Reorganization Plan No. 3 of 1967, 3 C.F.R. 1026 (1966-70 Comp.), reprinted in D.C. Code, vol. 1, at 130, 164 (1981). - 30 - History at 2229, 2318-2319. See 119 Cong. Rec. 33353 (1973) (statement of Rep. Diggs), Home Rule History at 2083. The debate on the House floor makes it clear that the legislative veto mechanism was not considered an important part of the bill. Its proponents mentioned it as one of a number of protections of congressional prerogative in the Act. See remarks of Rep. Diggs, 119 Cong. Rec. 33355 (1973), Home Rule History at 2084; remarks of Rep. McKinney, 119 Cong. Rec. 33678-33679 (1973), Home Rule History at 2154. It was criticized by other supporters. See remarks of Rep. Harrington, 119 Cong. Rec. 33612-33613 (1973), Home Rule History at 2216. Most significantly. the opponents of the bill argued that the provision was unworkable and therefore useless. Congressman Broyhill, an ardent opponent of home rule, stated that "[t]his 30-day, so-called veto power that is provided for in the committee substitute is somewhat of a farce, because we know that theoretically we can legislate an act of Congress to repeal any act of this council." 119 Cong. Rec. 33642 (1973), Home Rule History at 2382. Congresswoman Green of Oregon, another opponent of home rule, had similar misgivings about the utility of the legislative veto provision. See 119 Cong. Rec. 33389, 33666 (1973); Home Rule History at 2183, 2451. Nothing in the House debate indicated that the presence of this provision was a deciding factor in any member's vote. - 31 - The Conference Committee adopted a version similar to the House version, except that it permitted a single House of Congress to veto acts amending Titles 22 to 24 of the D.C. Code relating to criminal law and procedure. See H.R. Rep. No. 93-703, 93d Cong., 1st Sess. 72, 75 (1973) ; Home Rule History at 3010, 3013. Although the legislative history did show concern over the preservation of Congress's constitutional authority over the District and a desire to reserve certain areas, these objectives are adequately achieved by provisions in the Act other than Section 602(c). Foremost is Section 601, D.C. Code, $1-206, which provides that: Notwithstanding any other provision of this Act, the Congress of the United States reserves the right, at any time, to exercise its constitutional authority as legislature for the District, by enacting legislation for the District on any subject, whether within or without the scope of legislative power granted to the Council by this Act, including legislation to amend or repeal any law in force in the District prior to or after enactment of this Act and any act passed by the Council. This recognition that Congress could enact legislation relating to the District on any matter at any time, regardless of any act of the Council certainly was sufficient to protect Congress's legislative responsibility over the District under Article I, Section 8, Clause 17 of the Constitution. In addition, Congress retained the ultimate authority over the District's budget under Section 603 (a) of the Act, D.C. Code, $47-313(a): - 32 - Nothing in this Act shall be construed as making any change in existing law, regulation, or basic procedure and practice relating to the respective roles of the Congress, the President, the federal Office of Management and Budget, and the Comptroller General of the United States in the preparation, review, submission, examination, authorization, and appropriation of the total budget of the District of Columbia government. As the D.C. Court of Appeals recently observed, "[i]n the budget process, by contrast [to the ordinary legislative process] Congress has retained a key role: appropriations for the District depend on an affirmative congressional act." Convention Center Referendum Committee V. District of Columbia Board of Elections and Ethics, D.C. App., 441 A.2d 889, 906 (1981) (en banc). Finally, Section 602(a) and (b) contain a number of specific substantive limitations on the Council's authority, reserving these areas to Congress. Specifically, Section 602 (a), states that the Council has no authority to (1) "impose any tax on property of the United States or any of the several states"; (2) "lend the public credit for support of any private undertaking"; (3) "enact any act, or enact any act to amend or repeal any Act of Congress, which concerns the functions or property of the United States or which is not restricted in its application exclusively in or to the District", see District of Columbia V. Greater Washington Central Labor Council, D.C. App., 442 A.2d 110 (1982), cert. denied, 103 U.S. 1282 (1983); (4) "enact any - 33 - act, resolution, or rule with respect to any provision of Title 11 (relating to organization and jurisdiction of the District of Columbia courts)", see District of Columbia V. Sullivan, D.C. App., 436 A.2d 364 (1981) Capitol Hill Restoration Society, Inc. v. Moore, D.C.App., 410 A.2d 184 (1979) (5) "impose any tax on the whole or any portion of the personal income, either directly or at the source thereof, of any individual not a resident of the District . . .", see Bishop V. District of Columbia, D.C.App., 411 A.2d 997, 999 (en banc), cert. denied, 446 U.S. 966, (1980) (6) "enact any act, resolution, or rule which permits the building of any structure within the District of Columbia in excess of the height limitations [Capitol Building]"; (7) "enact any act, resolution, or regulation with respect to the Commission on Mental Health"; (8) "enact any act or regulation relating to the United States District Court for the District of Columbia or any other court of the United States in the District other than the District courts, or relating to the duties or powers of the United States Attorney or the United States Marshal for the District of Columbia"; or (9) until 1979, enact legislation with respect to Titles 22 to 24 of the D.C. Code relating to criminal law and procedure, see McIntosh V. Washington, D.C.App., 395 A.2d 749, 751-54 (1978). In addition, Section 602(b), D.C. Code, $1-233(b), provides that "[n]othing in this Act shall be construed as - 34 - vesting in the District government any greater authority over the National Zoological Park, the National Guard of the District of Columbia, the Washington Aqueduct, the National Capital Planning Commission, or, except as otherwise specifically provided in this Act, over any federal agency, than was vested in the Commissioner prior to the effective date of this act [January 2. 1975]." See District of Columbia V. Greater Washington Central Labor Council, supra. Compared to the substantive limitations on the Council's legislative power imposed by Sections 601, 602(a) and (b), and 603, the procedural requirement for a 30-day congressional layover period is insignificant. It is also significant that, of the 725 permanent acts transmitted to the Congress pursuant to Section 602(c), only 67 two have been disapproved. This shows that as a 67. The first occasion was the adoption of a concurrent resolution disapproving Council Act 3-120, the Location of Chanceries Amendment Act of 1979. S. Con. Res. 63, 96th Cong., 1st Sess, 93 Stat. 1435 (1979). See H.R. Rep. No. 96-728, 96th Cong., 1st Sess. 1-2 (1979); S. Rep. No. 96-533, 96th Cong., 1st Sess. 1-2 (1979). See also, Staff of the House District of Columbia Committee, Location of Chanceries Oversight Hearing and Markup, 96th Cong., 1st Sess (1979) ; Staff of the Senate Subcommittee on Governmental Efficiency and the District of Columbia of the Committee on Governmental Affairs, Resolution to Disapprove Location of Chanceries Amendment Act of 1979, 96th Cong. 1st Sess (1979). The second occasion was the adoption by the House of Representatives of a resolution disapproving Act 4-69, the Sexual Assault Reform Act of 1981. H. Res. 208, 97th Cong. 1st Sess. (1981), 127 Cong. Rec. H6736 (Oct. 1, 1981). See 127 Cong. Rec. H6736 to H6762 (Oct. 1, 1981) see also, Staff of the House D.C. Committee, Sexual Assault Reform Act of 1981, 97th Cong., 1st Sess. (1981). - 35 - matter of practice, the provision is not a significant feature of the Act. Therefore, it is clear from an examination of the text and legislative history of the Self-Government Act that, if Section 602(c) were to be declared invalid, it cannot be demonstrated that "it is evident that the legislature would not have enacted those provisions which are within its power, independent of that which is not" under the test of severability pronounced by the Supreme Court. Furthermore, to invalidate a complex Act with over 100 sections because of a challenge to a small portion of one section, would run completely counter to the "cardinal principle of statutory construction" which is "to save and not destroy." See also, Barry V. Board of Elections and Ethics, 448 F.Supp. 1249, 1255 (D.C.D.C.), appeal dismissed, 188 U.S.App.D.C. 432, 580 F.2d 695 (D.C. Cir. 1978), which invalidated and severed Section 15 (b) of the D.C. Election Act, which was added by Section 751 of the Self-Government Act. See D.C. Code, $1-1115(b) (Supp. V. 1978). In addition, under the test in Chadha, an Act must be "presumed severable if what remains after severance is fully operable as a law. 103 S.Ct 15 2775. There can be no doubt that the Self-Government Act is fully operable without the challenged provisions in Section 602(c). The remaining provisions of Section 602(c), which require the Chairman of the Council to transmit all permanent acts of the Council to - 36 - the Speaker of the House and President of the Senate and that require such acts to lay before Congress for a 30-legislative day period before such acts may take effect, would still be valid. During this period, Congress could, of course, enact legislation preventing the act from taking effect. If Congress takes no action within this period, the act would take effect automatically, as have all but two of the 725 acts that were transmitted. As discussed above, even if Congress failed to take legislative action during the layover period, it would still have the authority under Section 601 to amend or repeal any act of the Council at any time. Thus, there is no question that the Act is "fully operable" without the provision; therefore, it is presumed to be severable. In sum, the primary purpose of the Self-Government Act was to "relieve Congress of the burden of legislating upon essentially local matters". Id. $102(a), D.C. Code, $1-201(a). As Part III will demonstrate, this goal has been accomplished. The Self-Government Act forms the legal basis for the elected Mayor/Council form of Government, the creation and transfer of numerous agencies and functions, and the subsequent enactment of 725 permanent legislative measures. Given the broad scope of the Self-Government Act, a finding that the somewhat duplicative provisions in Section 602(c) are invalid should not presume the invalidity of the Self-Government Act as a whole. - 37 - CONCLUSION Division VI (District of Columbia Affairs) of the District of Columbia Bar is concerned with issues relating to the laws of the District of Columbia. We have focused on our particular area of expertise--the interpretation of the District of Columbia Self-Government and Governmental Reorganization Act and the impact of home rule on the lives of District residents, businesses, and visitors. A basic understanding of this impact is fundamental to a determination of the issues in this case and to an assessment of the ramifications of such determinations. We submit that that the Self-Government Act is valid, and that the court should reject the challenges to it. Respectfully submitted, Jacquelyn V. Helm Cynthia A. Giordano James C. McKay, Jr. Bar No. 965228 Bar No. 290973 Bar No. 170464 (202) 724-8188 Members of the Steering Committee Division VI (D.C. Affairs) of the District of Columbia Bar - 38 -