Photo by much0 on Flickr.

This is part 5 in a series on the legislative history of the 1973 Home Rule Act. See previous parts on the act’s bipartisan support, nonpartisan elections, the police chief, and judges.

Congress decided not to keep the police chief federally appointed when it gave the District home rule, but Congress did initially restrict DC’s ability to change its own criminal laws.

The Home Rule Act forbade the DC Council from changing the criminal code for the first 2 years. After that, Congress tried to make it eaiser for it to overturn any criminal law change, but the courts took away that perogative in 1985.

Yes, while Congress had no problem with DC setting the laws for licensing barbers or home construction or parking, it was very nervous about letting DC change criminal offenses. Why?

A letter from critics of Home Rule fretted that the DC Council “would be able to alter, amend, repeal or supersede virtually any law including Titles 22, 23, and 24 of the criminal code. (p. 1568) The majority (Democratic) House staff responded in their own memo:

The above statement is a prime example of an assumption of bad faith on the part of duly elected official sunder the bill. It is logical to assume that the local elected government will have just as much stake in maintaining peace, law, and justice as the presently appointed officials have in maintaining the integiity of the city government. (1645)

Nonetheless, the Congressmen in charge of the DC committee acceded to this concern in their committee print, the version of the bill they brought to the floor that tried to respond to some of the opponents’ arguments. In that version, the titles of the DC Code involving crimes, criminal procedure, and treatment of prisoners were part of the list of laws the Council can’t legislate, such as changing the height limit or imposing a commuter tax.

The House passed the bill with a prohibition on changing criminal laws. That would have meant that Congress would be the one still setting any criminal laws in DC. The Senate version did not restrict this, and the conference committee compromised by limiting this authority for only the first 2 years after Home Rule. (2361)

One-house veto lasted until Chadha and Gary

Congress didn’t just let DC have complete control over the criminal laws after that. Instead, it set up a “one-house veto.” Normally, to block a DC law, both houses of Congress have to pass a joint resolution, and the President has the ability to veto that, just like with a bill. That sets a fairly high bar for the federal government to overturn a DC law.

With the criminal code, Congress decided to make it easier. They added a provision that a change to criminal law will not take effect even if only one house passes a resolution against it. This one-house veto also applied to an act changing the Mayor or councilmembers’ pay. (2917)

This provision lasted until 1983, when something got in the way: the US Supreme Court’s decision in Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983). There had also been a one-house veto in place for deportation decisions: the INS could hold off on a deportation proceeding for 7 years if deportation would create “extreme hardship.”

The INS used this discretion to help Jagdish Rai Chadha, who had overstayed a student visa. He had been born in Kenya to Indian parents and had a British passport, but neither India nor Britain would let him back into their nations. The House used its one-house veto to block the leniency, but the Supreme Court held that since the Constitution specifies a set process for Congressional action including bicameralism (both houses must pass the same bill or resolution) and presentment (it goes to the President for the chance to veto), Congress can’t decide to elect a different process for some actions.

The decision had far-reaching consequences besides INS procedures: it ended every one-house veto, including the ones in the Home Rule Act. In Gary v. United States, 499 A.2d 815 (1984), the DC Court of Appeals (DC’s highest state court) struck down the one-house veto.

Therefore, District residents enjoy the ability to elect officials who can change the criminal laws as needed. A sympathetic young Indian/British immigrant led to Congress’ power over the District growing a little less in a significant area.

All numbers in parentheses refer to page numbers in Home Rule for the District of Columbia, 1973-1974, 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, Approved December 24, 1973 (Public Law 93-198), Serial No, S-4, US Government Printing Office, December 31, 1974.

David Alpert is Founder and President of Greater Greater Washington and Executive Director of DC Sustainable Transportation (DCST). He worked as a Product Manager for Google for six years and has lived in the Boston, San Francisco, and New York metro areas in addition to Washington, DC. He lives with his wife and two children in Dupont Circle. Unless otherwise noted, opinions in his GGWash posts are his and not the official views of GGWash or DCST.