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[JGR/Chadha re: District of Columbia] (9 of 12)
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Ronald Reagan Presidential Library
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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
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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.
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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.
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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).
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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.
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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
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