DC Autonomy: Is it Constitutional?

There is a move afoot in Washington DC to give the city autonomy of over its finances. While this may sound good on the surface, there are unintendend consequences, and it may not be constitutional. As a federal district, the District of Columbia is funded solely by federal tax dollars.

Dean Clancy, FreedomWorks Vice President, says,

If enacted, the bill would violate the spirit, if not the letter, of the penultimate clause of Article I, section 8, of the Constitution, which grants to Congress the power “to exercise exclusive legislation in all cases whatsoever” over the federal district—a power the Founders thought Congress must logically always have, and must never relinquish, lest a local government use its powers (including the ability to withdraw police protections) in order to impose political pressure on the federal government (something that actually happened in the 1780s).

Constitutional conservatives are naturally concerned and will have none of this, arguing that the reason for this power being granted to Congress is in the national interest.

Supporters of the movement claimed victory this week with a vote that would allow the city charter to be changed:

While voter turnout in Tuesday’s special election was low — just 9.8 percent of the District’s registered voters cast a ballot — 83 percent of the 49,869 voters who did come out supported the budget autonomy charter amendment.

Initially, D.C. officials … spoke out against allowing a referendum on the budget autonomy measure. Officials worried that it could cause other efforts for the District to gain control of its purse strings to backfire.

Local leaders have worked closely with Rep. Darrell E. Issa, California Republican, on efforts to pass a budget autonomy bill on Capitol Hill. But attempts have stalled since 2011 because conservative lawmakers tried to attach riders to the bill that would alter the city’s abortion or gun laws.

Clancy retorts that, “if it succeeds, Congress will find it harder to control what the District government does with federal tax dollars”.

Other observers are equally skeptical. The Attorney General of the District of Columbia, Irving B. Nathan, submitted written testimony in January that strongly opposed the legality of the ballot referral:

The [Office of the Attorney General] has serious reservations whether it would be sustained if challenged in court and, most pertinently, whether the Board has the authority to place this amendment on a ballot referendum in light ofthe clear prohibition under Section 303(d) of the District of Columbia Home Rule Act … That provision of governing law provides in relevant part that “the [Charter] amending procedure … may not be used to enact any law or affect any law with respect to which the Council may not enact … under the limitations specified in §§ 1-206.01 to 1-206.03.” (Emphasis added). The statute is phrased in clear, mandatory terms: a proposed amendment is precluded by law from going on the ballot through the Charter-amending procedure of Section 303 if the proposed amendment would “enact any law or affect any law with respect to which the Council may not enact … under the limitations specified in” Sections 206.01-03. For reasons we detail below, it is precisely these limitations, reserving to Congress, among other things, the authority to change the laws governing the role played by Congress and the President in the District’s budget that, in the considered judgment ofthis office, preclude using the charter amendment procedures, including the placement on a ballot for the electorate, for the proposed amendment.

Nathan then describes why this would be a bad idea:

The amendment, if it became law, would be a seachange in the District’s budget process in two key ways. First, it would authorize a separate path for the appropriation of the District’s local budget — i.e., revenues raised from District taxes, fees, and fines and those received under federal grant programs applicable nationally — from the path for the federal portion — i.e., the federal payment to the District. The federal portion would continue to follow the path currently set forth in the District’s Charter — passed by Congress through its well-established authority to regulate District affairs under Article I of the U.S. Constitution — that requires an affirmative appropriation by Congress and Presidential approval before any of it can be lawfully spent by the District Government. However, for the local portion, the rules would change. Rather than requiring an active, congressional appropriation and Presidential signature, the local portion would take effect after being passed by District lawmakers and then laying before Congress for passive review during the 30 legislative day period unless Congress passes, and the President approves, a Joint Resolution disapproving the act of the Council. Second, it would provide for a change in the dates of the fiscal year for the District of Columbia Government — from its current schedule, October I-September 30, which currently tracks the schedule of the federal budget, to run from July 1 through June 30 on its own track independent of the established federal schedule and process.

The reason that Congress was originally given the constitutional power to control the budgets of federal districts, especially the capitol district, is clear. James Madison originally described the necessity, in Federalist 43, of the federal government to have full control over the national capitol for security reasons. This was later codified in Article I, Section 8 of the Constitution:

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States.

If this autonomy movement is allowed to move forward, it would fundamentally alter the enumerated powers granted in the Constitution to the Federal Government. Thus, it would represent the ultimate slippery slope.