Legislative attempts in Congress to give the District of Columbia budget autonomy continue to undercut the D.C. Council's push to enforce its local budget autonomy law, according to a GOP-endorsed brief recently filed in a federal lawsuit that will be argued Wednesday.
Under the direction of Republican leaders, the Office of the House General Counsel weighed in on the side of Mayor Vincent Gray in his legal dispute with the D.C. Council over the voter-approved changes to the city's budgeting procedure.
The 26-page brief filed with the support of Speaker John A. Boehner, R-Ohio, Majority Leader Eric Cantor, R-Va., and Majority Whip Kevin McCarthy, R-Calif., argues that the only "constitutionally permissible manner" for D.C. to achieve the budget autonomy is by way of the normal legislative process -- "and Congress has not yet done that." The recent efforts of Democrats, including Del. Eleanor Holmes Norton, D-D.C., and Sen. Mark Begich, D-Alaska, to push bills that would give D.C. more control over its locally derived revenues are cited as evidence that only Congress has the power to alter the District's fiscal relationship with Capitol Hill, the reasoning goes.
The brief also pokes a finger at President Barack Obama, pointing out that his budget stated that the White House would "work with Congress and the Mayor to provide the District local budget and legislative autonomy, as proposed in the budget."
It concludes that the Local Budget Autonomy Law is invalid because it conflicts with federal law, and that budget autonomy legislation proposed since the measure became law last summer proves inconsistency.
"In sum, it is very difficult, if not impossible, to square the Council’s view that the District has had the power since 1973 to achieve budget autonomy on its own with this history of repeated efforts by the District and its supporters in Congress to achieve that very authority through federal legislation," the brief states.
Georgetown University Law Center professor David A. Super says the House Counsel's opinion that members of Congress who are trying to act on budget autonomy have foiled local attempts is based on a "common misconception in legal analysis."
"It is very common for either full legislative bodies or members of legislative bodies to put forward legislation to clarify what they already believe the law will be when there are situations of uncertainty," Super said in an interview. "That doesn't amount to an interpretation that the law is the other way. If courts were to interpret things that way, then it would create a real disincentive for clarifying uncertainty."
D.C. Attorney General Irvin B. Nathan first raised doubts about the validity of the D.C. Council's radical plan to pursue a referendum that would amend the District charter in 2012. He stuck by those views as the bill was passed, signed by Gray and endorsed by 83 percent of D.C. voters last year.
Proponents of the local law, including D.C. Council Chairman Phil Mendelson, have continued to encourage budget autonomy efforts in both the House and Senate. Mendelson informed all the relevant members of Congress that the council intended to file suit in April, and told CQ Roll Call that passage of a federal bill "would moot the suit.”
Super says the fundamental question in the lawsuit is whether the Home Rule statute allows a charter amendment.
The brief endorsed by the House GOP maintains that the District does not have that authority.
House Democrats, in contrast, have declined to weigh in. Though the brief was filed by the Bipartisan Legal Advisory Group of the U.S. House of Representatives — a group that articulates the position of the chamber in all litigation — Minority Leader Nancy Pelosi, D-Calif., and Minority Whip Steny H. Hoyer, D-Md., declined to support the filing.
“The Democratic leaders sitting on BLAG do not believe it is necessary at this time for the House to officially weigh in on the matter regarding the DC budget referendum,” Pelosi and Hoyer said in a joint statement to CQ Roll Call.
Norton issued a statement thanking them for keeping out of the District's internal dispute.
“As long as the city is divided on the legality of the referendum — as exemplified by the D.C. Council’s friendly declaratory judgment request for the courts to resolve the legal question — Congress should not weigh in on the validity of the locally passed referendum," she said.