A federal judge delivered some sobering news to proponents of budget autonomy for the District of Columbia on Wednesday.
Although the city's long and hard-fought struggle to free its locally raised funds from the congressional appropriations process "tugs at heart strings," District Judge Emmett G. Sullivan said the courts may be "powerless to provide a legal remedy."
Sullivan spent nearly three hours questioning attorneys on home rule, Congress' role in budget autonomy and the politics surrounding the case that pits the D.C. Council against Mayor Vincent Gray . He carefully scrutinized the language of the Home Rule Act enacted four decades ago, but did not deliver a ruling on whether it grants local officials the power to amend the budget process — though he implied that he intends to rule as quickly as possible. The judge asked for transcripts of the arguments delivered by D.C. Attorney General Irvin B. Nathan, who is defending the mayor, and attorney Karen L. Dunn, one half of the pro bono legal team marshaled by the council, signaling he is hoping to quickly rule on the case in order to accommodate critical dates in the city's budget process. The council has scheduled a vote for May 28 and hopes to be able to follow the local budget autonomy law that was endorsed by 83 percent of D.C. voters last year.
Sullivan also cautioned that, sympathetic as he might be to the D.C. residents whom he says are entitled to spend their own money, "I can't rule from the heart."
Ultimately, he said, Congress may have the exclusive right to grant D.C. budget autonomy and relinquishing that right would require additional legislative action on Capitol Hill.
Congress is definitely paying attention to the case. House GOP leaders supported the filing of an amicus brief in the case that aligned with Nathan's view that the law is invalid.
Trusting the opinion of the city's top legal official, Gray and D.C. CFO Jeffrey S. DeWitt have refused to comply with the local law, fearing that doing so could violate federal appropriations law.
"I don't want to be seen as against budget autonomy," said Nathan, who served as the House’s general counsel prior to his 2011 appointment with the city. He wants the judge to defer to the opinions of the current House counsel and the Government Accountability Office that Congress maintains a firm grasp on the city's purse strings.
Democrats declined to support the filing, and supporters of the local law believe Congress's inaction during the 35-day congressional review period for the charter amendment is a meaningful form of passive approval.
"The District has earned its right to budget autonomy," Dunn argued, pointing out past instances where the courts had interpreted the law to expand constitutional rights. In wasn't until 2007 that someone asserted the Second Amendment guaranteed an individual right to bear arms, she said, and the court only recently interpreted the Equal Protection Clause could extend to gay marriage.
Sullivan agreed that the District's strong fiscal track record — 17 balanced budgets and 16 years of clean audits — had earned its residents the right to budget autonomy. "I don't think anyone disputes that," he said.
Nathan also claimed sympathy. "I understand they're frustrated," he said. "I agree."
Pointing to the table full of lawyers behind him, he explained they were some of the best, brightest and longest-serving employees of he D.C. Attorney General's office, but none had been able to find a loophole in federal law that would allow the city to effectively cut Congress and the president out of the local budget process.
"They paint this as some unilateral power grab from the president and the Congress," Dunn said. "That is not the case." People on all sides agree that, even with the local budget autonomy law, Congress unquestionably maintains its ability to add policy riders, or alter the appropriations process.
Sullivan asked both attorneys how much weight he should give to Congress' inaction on the local law. A recent hearing convened by a House Oversight and Government Reform subcommittee on a local bill to decriminalize marijuana proves lawmakers are well aware of their ability to intervene in D.C.'s legislative process, he theorized.
Congress's silence means "absolutely nothing," Nathan said. He later added that Democrats, who abstained from the opinion, could have filed their own amicus brief opposing the arguments endorsed by Speaker John A. Boehner, R-Ohio, Majority Leader Eric Cantor, R-Va., and Majority Whip Kevin McCarthy, R-Calif.
The legal team representing the D.C. Council pointed out that the House Republicans' brief was filed on the very last day of the briefing schedule, so House Democrats or leaders in the Senate wouldn't actually have had a chance to say something.
"With the exception of the three members who filed here, everyone else's position is that this is a question for the courts," attorney Brian D. Netter said in response to a question from CQ Roll Call. "The courts interpret what the law means and they have, I think, appropriately waited to see what the courts are going to decide."
Sullivan was also curious about why Gray had signed off on the local law, also passed unanimously by the council, if he believed it was invalid. The judge opined in the midst of Wednesday's arguments that his motivations may have been political: "That's what we're talking about — this is a case about politics."