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D.C. HOME RULE: EXAMINING THE INTENT OF 

CONGRESS IN THE DISTRICT OF COLUMBIA 

HOME RULE ACT OF 1973 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

GOVERNMENT OPERATIONS 

OF THE

COMMITTEE ON OVERSIGHT 

AND GOVERNMENT REFORM 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTEENTH CONGRESS 

SECOND SESSION 

MAY 12, 2016 

Serial No. 114–112 

Printed for the use of the Committee on Oversight and Government Reform 

( 

Available via the World Wide Web: http://www.fdsys.gov 

http://www.house.gov/reform 


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COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM 

JASON CHAFFETZ, Utah, Chairman 

JOHN L. MICA, Florida 

MICHAEL R. TURNER, Ohio 

JOHN J. DUNCAN, JR., Tennessee 

JIM JORDAN, Ohio 

TIM WALBERG, Michigan 

JUSTIN AMASH, Michigan 

PAUL A. GOSAR, Arizona 

SCOTT DESJARLAIS, Tennessee 

TREY GOWDY, South Carolina 

BLAKE FARENTHOLD, Texas 

CYNTHIA M. LUMMIS, Wyoming 

THOMAS MASSIE, Kentucky 

MARK MEADOWS, North Carolina 

RON DESANTIS, Florida 

MICK MULVANEY, South Carolina 

KEN BUCK, Colorado 

MARK WALKER, North Carolina 

ROD BLUM, Iowa 

JODY B. HICE, Georgia 

STEVE RUSSELL, Oklahoma 

EARL L. ‘‘BUDDY’’ CARTER, Georgia 

GLENN GROTHMAN, Wisconsin 

WILL HURD, Texas 

GARY J. PALMER, Alabama 

ELIJAH E. CUMMINGS, Maryland, Ranking 

Minority Member 

CAROLYN B. MALONEY, New York 

ELEANOR HOLMES NORTON, District of 

Columbia 

WM. LACY CLAY, Missouri 

STEPHEN F. LYNCH, Massachusetts 

JIM COOPER, Tennessee 

GERALD E. CONNOLLY, Virginia 

MATT CARTWRIGHT, Pennsylvania 

TAMMY DUCKWORTH, Illinois 

ROBIN L. KELLY, Illinois 

BRENDA L. LAWRENCE, Michigan 

TED LIEU, California 

BONNIE WATSON COLEMAN, New Jersey 

STACEY E. PLASKETT, Virgin Islands 

MARK DeSAULNIER, California 

BRENDAN F. BOYLE, Pennsylvania 

PETER WELCH, Vermont 

MICHELLE LUJAN GRISHAM, New Mexico 

JENNIFER HEMINGWAY, Staff Director 

DAVID RAPALLO, Minority Staff Director 

PATRICK HARTOBEY, Counsel 

WILLIE MARX, Clerk 

SUBCOMMITTEE ON GOVERNMENT OPERATIONS

MARK MEADOWS, North Carolina, Chairman 

JIM JORDAN, Ohio 

TIM WALBERG, Michigan, Vice Chair 

TREY GOWDY, South Carolina 

THOMAS MASSIE, Kentucky 

MICK MULVANEY, South Carolina 

KEN BUCK, Colorado 

EARL L. ‘‘BUDDY’’ CARTER, Georgia 

GLENN GROTHMAN, Wisconsin 

GERALD E. CONNOLLY, Virginia, Ranking 

Minority Member 

CAROLYN B. MALONEY, New York 

ELEANOR HOLMES NORTON, District of 

Columbia 

WM. LACY CLAY, Missouri 

STACEY E. PLASKETT, Virgin Islands 

STEPHEN F. LYNCH, Massachusetts 


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C O N T E N T S 

Page 

Hearing held on May 12, 2016 ............................................................................... 1 

WITNESSES 

Ms. Edda Emmanuelli Perez, Managing Associate General Counsel, Office 

of General Counsel, U.S. Government Accountability Office 

Oral Statement ................................................................................................. 6 

Written Statement ............................................................................................ 9 

Mr. Jacques Depuy, Partner (Retired), Greenstein Delorme and Luchs, P.C., 

Former Counsel (1971–1974), Subcommittee on Government Operations 

and Reorganization 

Oral Statement ................................................................................................. 28 

Written Statement ............................................................................................ 30 

Mr. Philip H. Mendelson, Chairman, Council of the District of Columbia 

Oral Statement ................................................................................................. 91 

Written Statement ............................................................................................ 94 

Mr. Irvin B. Nathan, Senior Counsel, Arnold & Porter, Former Attorney 

General, District of Columbia 

Oral Statement ................................................................................................. 103 

Written Statement ............................................................................................ 105 

Mr. Brian Netter, Partner, Mayer Brown 

Oral Statement ................................................................................................. 132 

Written Statement ............................................................................................ 134 

APPENDIX 

October 9, 1973-Congressional Record-U.S. House of Representatives, Specifically the Statements made by Chairman Charles Coles Diggs, Entered 

by Chairman Meadows ........................................................................................ 154 

Former Mayor Vincent C. Gray’s letter sent on April 11, 2014 to Phil 

Mendelson, Chairman, Council of the District of Columbia, Entered by 

Chairman Mark Meadows ................................................................................... 155 

Written Statement of Congresswoman Eleanor Holmes Norton, Entered by 

Delegate Eleanor Holmes Norton ....................................................................... 159 

Brief Amici Curiae of Dr. Alice M. Rivlin, the Hon. Thomas M. Davis, and 

the Hon. Anthony A. Williams in Support of Neither Party. The Case 

is Council of the District of Columbia v. Vincent Gray, in his Official 

Capacity as Chief Financial Officer for the District of Columbia, Entered 

by Delegate. Eleanor Holmes Norton ................................................................. 161 

‘‘Local Budget Autonomy Amendment Act of 2012’’ text. Entered by Chairman 

Meadows ............................................................................................................... 174 

GAO Responses to Questions for the Reform sent by the Committee on 

Oversight and Government Reform .................................................................... 177 


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D.C. HOME RULE: EXAMINING THE INTENT OF 

CONGRESS IN THE DISTRICT OF COLUMBIA 

HOME RULE ACT OF 1973 

Thursday, May 12, 2016 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON GOVERNMENT OPERATIONS, 

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM, 

Washington, D.C. 

The subcommittee met, pursuant to call, at 2:05 p.m., in Room 

2154, Rayburn House Office Building, Hon. Mark Meadows [chairman of the subcommittee] presiding. 

Present: Representatives Meadows, Jordan, Walberg, Buck, 

Grothman, Connolly, Norton, and Clay. 

Mr. MEADOWS. The Subcommittee on Government Operations 

will come to order. And, without objection, the chair is authorized 

to declare a recess at any time. 

It is the chairman’s responsibility under the Rules of the House 

to maintain order and preserve decorum in the committee room. 

Members of the audience are reminded that disruption of congressional business is a violation of the law. We certainly welcome your 

presence and we would just caution you against any disruption. 

Good afternoon and welcome. Today’s hearing will shine a light 

on what Congress intended when it passed the Home Rule Act in 

1973. We are not here to discuss the soundness of the District having budget authority as a policy matter. Our goal today is to determine whether the Local Budget Autonomy Act was consistent with 

the Home Rule Act enacted by Congress. 

In addition, today’s hearing will seek to identify the potential 

ramifications that we may face by the District of Columbia and 

local D.C. Government employees in the event the Local Budget 

Autonomy Act is enforced. 

And at the outset of our country, the Founding Fathers saw fit 

to vest in Congress a constitutional right to maintain supreme legislative authority over the District. So important was this authority 

to James Madison that he even took time to expand upon the necessity of the Federal Government having an independent seat in 

The Federalist No. 43. 

It was a result of this indispensable necessity, as Madison described it, for an independent seat of government that the District 

of Columbia was created, and in 1973 Congress undertook the process of delegating to the District a limited home rule for the first 

time in roughly 100 years. And it did so, undoubtedly, with the 

need to maintain its constitutionally vested authority in mind. 


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The voluminous Congressional Record associated with the Home 

Rule Act serves to demonstrate the need to balance popular sovereignty for the people of the District against the essential requirement that Congress maintain its supreme legislative authority. 

Reviewing the record shows that numerous debates, hearings, 

and discussions were had over many of the provisions in the final 

Home Rule Act. In fact, the debates and editing continued all the 

way through to the House floor, where very important clarifying 

changes were made that were incorporated in the final version of 

the act. 

During the floor debate a number of edits were made which, in 

the words of one of the principal architects of the Home Rule Act, 

Chairman Charles Coles Diggs, Jr., clarified the intent of the act. 

I ask unanimous consent that the Chairman Charles Coles Diggs, 

Jr.’s ‘‘Dear Colleague’’ letter, dated October the 9th, 1973, be put 

into the record. And without objection, so ordered. 

Mr. MEADOWS. Among these edits was the express retention of 

the appropriations power of the Congress and the role of the Federal Government as a whole in the budgetary process as it relates 

to the District. 

The intent to retain the role of the Federal Government in the 

budgetary process went unquestioned for nearly 40 years. In 2012, 

however, the District unilaterally claimed that this was not the 

congressional intent of the Home Rule Act and passed a Local 

Budget Autonomy Act. The Local Budget Autonomy Act was voted 

on by less than 10 percent of the eligible voters in the District of 

Columbia. 

This act is currently involved in litigation at the Federal level regarding its legal status and was previously the subject of extended 

litigation in both the Federal and State courts with the House Bipartisan Legal Advisory Group having supported the plaintiff challenging the act’s legality. As such, its status remains in legal limbo 

until the courts issue a final and definitive ruling. 

The Local Budget Autonomy Act is not settled law, as some have 

asserted. Further, the GAO, or the Government Accountability Office, issued an opinion in January of 2014 stating that they believe 

the enforcement of this act would constitute a violation of the 

Antideficiency Act. 

As a result, should the District attempt to enforce this act, D.C. 

employees could face repercussions, including those which stem 

from the Antideficiency Act violations. These employees could then 

be subjected to potential administrative penalties and could even 

be subject to criminal liabilities for violating the act. 

Former D.C. Mayor Vincent Gray expressed these concerns of 

subjecting District employees to the possible administrative and 

criminal punishments for enforcing the Local Budget Autonomy Act 

in his April 11, 2014, letter to the Council of the District of Columbia stating that he would not implement the Local Budget Autonomy Act. So I ask for unanimous consent to enter this letter into 

the record. Hearing no objection, so ordered. 

Mr. MEADOWS. I’d like to thank all of the witnesses for agreeing 

to testify before the committee today. We are fortunate to have attorneys who participated in litigating this issue, the chairman of 

the Council of the District of Columbia, and a member of GAO’s 


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General Counsel’s Office, also members of the congressional staff 

who were involved in the drafting of the Home Rule Act at the time 

of its passage. 

I look forward to hearing from each of you on this very important 

issue. 

I now recognize my good friend, Mr. Connolly, the ranking member of the Subcommittee on Government Operations, for his opening statement. 

Mr. CONNOLLY. Thank you, Mr. Chairman. Thank you for holding this hearing. I also want to welcome my friend and former colleague, Phil Mendelson, who is chairman of the Washington, D.C., 

City Council. 

I approach the subject of home rule as a former local government 

official, having served in neighboring Fairfax County for 14 years 

on the governing body, 5 years as chairman, of the largest jurisdiction in metropolitan Washington. I know what it takes to produce 

a budget every year. I know the difficulty of making revenue and 

expenditure estimates under the best of circumstances. I cannot 

imagine how a local government, my local government, would function efficiently or effectively if each budgetary decision required 

congressional approval. 

I have consistently supported autonomy for the District and 

would argue that Congress’ actions have actually had a deleterious 

effect on the District, its management, and its residents. I hope the 

irony of this situation is not lost on anyone watching who support 

the conservative principles of limited government and states’ rights 

ostensibly. I don’t mean my friend the chairman. I guess the District of Columbia is an ideological carveout. 

How is it that a legislative body that struggles to pass its own 

annual budget and routinely misses appropriations deadlines would 

nonetheless insist on exercising overall authority and oversight 

over somebody else’s? 

D.C.’s lack of budget autonomy affects the entire national capital 

region, especially the thousands of my constituents who are civil 

servants and work every day here in the District of Columbia. 

Former Virginia Governor Bob McDonnell, a Republican, supported 

budget autonomy because of the negative consequences for both 

Virginia and Maryland if D.C.’s fiscal situation is left uncertain, 

particularly during a Federal Government shutdown like the one 

we endured several years ago. 

Without budget autonomy, if the Federal Government shuts 

down, the D.C. government shuts down too, absent a specific exemption from Congress. That means all nonessential D.C. municipal services cease, potentially paralyzing the city and hundreds of 

thousands of commuters coming into the city, to say nothing of our 

constituents nationwide who visit D.C. in the millions every year. 

The past two Republican chairmen of this committee also supported the policy of budget autonomy for the District. My predecessor and friend Tom Davis, and Darrell Issa, introduced legislation to expand the home rule, including bills to give D.C. autonomy. In fact, Tom Davis, my predecessor in this job, continues to 

fight for budget autonomy as a private citizen. 

I regret that the committee has seemingly abandoned those bipartisan efforts in recent years. In fact, the committee, this comVerDate Nov 24 2008 11:30 Feb 17, 2017 Jkt 000000 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 H:\23481.TXT APRIL

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mittee, has gone out of its way to restrict home rule. Last year the 

committee and the House for the first time since 1991 passed a resolution of disapproval on a law passed by the D.C. City Council, the 

Reproductive Health Non-Discrimination Amendment Act. We did 

it because we could. That law prohibits employers from discriminating against employees based on their reproductive health decisions. 

More recently, House Republicans passed for the second time 

this Congress a misguided D.C. voucher bill that was not only not 

requested by the District, but also has failed to deliver educational 

results according to a number of studies and tests. 

The chairman of this committee seemed to also threaten jail time 

for the D.C. city Mayor for implementing the city’s marijuana legalization law, which was adopted by public referendum by the residents of the District of Columbia. And when we do something like 

that, to me it’s painful irony. First of all, we couldn’t do it in Denver, same referendum, same outcome, because our reach doesn’t go 

to Denver. We do it here because we can, because the Constitution 

gives us authority over a city that did not yet exist when the Constitution was adopted and was never envisioned to be a modern 

urban metropolis. In fact, D.C. Superior Court recently upheld the 

District’s Budget Autonomy Act approved by those votes in 2013. 

While some disagree about how to achieve it, all, including I 

think most of the witnesses today, will agree on the policy of budget autonomy for the District. To me, it’s shameful that the community housing the Federal Government is not afforded the same 

rights to self-government as all others across the country. 

It is time for congressional Republicans to get on board. And this 

is one case where I would hope, upon reflection, they would actually adhere to their own conservative principles: that government 

closest to the people is the best form of government, people are entitled to self-determination, there should never be taxation without 

representation. 

These are American values, but they certainly are values I have 

heard from my conservative friends and I respect them. Let’s start 

to apply them irrespective of race, irrespective of partisan voting 

patterns. This is about American rights, and nothing should substitute itself for our enshrinement of those rights and our respect 

for those rights. 

I yield back. 

Mr. MEADOWS. I thank the gentleman for his opening statements. And we will caution the audience, in terms of public displays of either pleasure or displeasure, we would ask you to refrain 

from that. 

And so I now recognize the delegate from the District of Columbia, Ms. Eleanor Holmes Norton, for her opening statement. 

Ms. NORTON. Thank you, Mr. Chairman. 

First, I want to welcome Chairman Mendelson. I want to welcome all of the witnesses, especially my constituents, and others to 

this hearing. 

Mr. Chairman, I appreciate that you have given me this time. 

You’re my good friend, even when good friends must disagree, as 

we do today. I will read what I have to say in order to stay within 

the time you have given me. 


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You, Mr. Chairman, are known for your well-known kindness, 

and it’s a courtesy, since I am not ranking member, for you to 

allow me to give an opening statement at this hearing. Of course, 

this hearing is on my very own district and it affects only those 

who live in the District of Columbia. 

This hearing, however, appears to be a fait accompli, similar to 

when the committee went through the motions last month marking 

up the District of Columbia school vouchers bill. The committee 

knew that the bill could only be enacted on an appropriation bill, 

that there was not the support in the Senate, and Chairman Jason 

Chaffetz had already requested that the matter be put on the upcoming appropriation bill even before we had that hearing here. 

This hearing seems designed to lay the predicate for using the 

appropriation process yet again to try to overturn, block, or preempt the Local Budget Autonomy Act of 2012, which was ratified 

by 83 percent of the D.C. voters. 

The evidence for this is transparent. Speaker Paul Ryan’s 

spokesperson told the press that Republicans are considering, 

quote, ‘‘legislative options’’ for the Budget Autonomy Act. The three 

top House Republican leaders have filed amicus briefs expressing 

their view that the Budget Autonomy Act is invalid. The House Appropriations Committee has said that the Budget Appropriation 

Act is invalid. 

By calling legal experts, the subcommittee is trying a complicated legal matter in the court of public opinion and most will 

not understand much of the legal machinations we discuss here 

today because they are normally discussed in a court of law. Only 

the courts can determine the validity of the Budget Autonomy Act. 

Indeed, the Budget Autonomy Act has been litigated for the last 2 

years with courts reaching conflicting conclusions. 

Yet, the act is the law of the land. The Congress did not disapprove the Budget Autonomy Act during the congressional review 

period and the only court order in effect on the Budget Autonomy 

Act upheld its validity. 

What is within the committee’s authority is to remove Federal 

restrictions that harm the finances and operations of the D.C. government. The last two Republican chairmen of the committee studied this issue closely, Tom Davis and Darrell Issa, and sought 

budget autonomy for the District of Columbia. As Mr. Davis has 

said, ‘‘The benefits of budget autonomy for the District are numerous, real, and much needed. There is no drawback.’’ Indeed, even 

the Republican witnesses here who have taken a position on the 

policy of budget autonomy support it. 

Control over the dollars raised by local taxpayers and businesses 

is central to local control, one of the oldest principles of the United 

States Government and a much-cited principle of congressional Republicans in particular. 

Budget autonomy also has practical benefits for both the District 

and the Federal Governments. For the District government, it 

means lower borrowing costs, more accurate revenue and expenditure forecasts, improved agency operations, and the removal of the 

threat of Federal Government shutdowns. 

For Congress, it means not wasting time on budget line items it 

never amends. For the Federal Government, it means that the muVerDate Nov 24 2008 11:30 Feb 17, 2017 Jkt 000000 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 H:\23481.TXT APRIL

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nicipal services that government, our government, relies on to function will not cease during a Federal shutdown. 

To its credit, Congress has begun to recognize the hardships 

caused by the lack of budget autonomy. Since 2014, for the first 

time we were able to keep the Congress from involving the District, 

and Congress has exempted D.C. from Federal shutdowns. 

Congress losses nothing under budget autonomy. This is not 

statehood. Under the U.S. Constitution, Congress has the authority 

to legislate on any District matter, including its local budget, at 

any time. 

This year’s Republican budget made the case for budget autonomy, and I conclude with what my colleagues said in their own 

budget: 

‘‘This budget would give our States and local municipalities the 

freedom and flexibility...that meets the unique needs and challenges of their communities...We are humble enough,’’ said by my 

colleagues, ‘‘to admit that the Federal Government does not have 

all of the answers...Putting our faith in the people will respect and 

restore the principle of federalism in America.’’ 

Mr. Chairman, I rest my case. Thank you very much. 

Mr. MEADOWS. I thank the gentlewoman for her comments. 

I will hold the record open for 5 legislative days for any member 

who would like to submit a written statement. 

Mr. MEADOWS. We will now recognize our panel of witnesses. 

And I’m pleased to welcome Ms. Edda Emmanuelli Perez, managing associate general counsel at the Office of General Council at 

the U.S. Government Accountability Office; Mr. Jacques DePuy, a 

retired partner at Greenstein Delorme and Luchs and a former 

counsel for the Subcommittee on Government Operations and Reorganization; Mr. Philip Mendelson, chairman of the Council of the 

District of Columbia; Mr. Irvin Nathan, senior counsel at Arnold & 

Porter and former attorney general of the District of Columbia; and 

Mr. Brian Netter, partner at Mayer Brown. 

Welcome to you all. And pursuant to committee rules, all witnesses will be sworn in before they testify. So I would ask that you 

please rise and raise your right hand. 

Do you solemnly swear or affirm that the testimony you are 

about to give will be the truth, the whole truth, and nothing but 

the truth? 

Let the record reflect that the witnesses have answered in the 

affirmative. 

Thank you. Please be seated. 

And so in order to allow time for discussion, I would ask that you 

please limit your oral testimony to 5 minutes. Your entire written 

statement will be made part of the record. 

And you’re now recognized for 5 minutes. 

WITNESS STATEMENTS 

STATEMENT OF EDDA EMMANUELLI PEREZ 

Ms. PEREZ. Good afternoon, Mr. Chairman, Ranking Member, 

and members of the subcommittee. Thank you for the opportunity 

to discuss our legal opinion concerning the effect of the District of 

Columbia’s Local Budget Autonomy Act. 


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The Budget Autonomy Act attempts to change the Federal Government’s role in the District’s budget process by removing Congress from the appropriation process of most District funds and by 

removing the President from the District’s budget formulation process. GAO concluded that provisions of the Budget Autonomy Act 

that attempt to change the Federal Government’s role in this way 

have no legal effect. 

In the District of Columbia Home Rule Act, Congress established 

a District government and delineated its budget process. The Home 

Rule Act, as well as the Antideficiency Act and the Budget and Accounting Act, serve and protect two important constitutional powers reserved to the Congress: its power to exercise exclusive legislation in all cases whatsoever over the District and Congress’ constitutional power of the purse. 

GAO addressed the conflict between the Budget Autonomy Act 

and the Antideficiency Act and the Budget and Accounting Act. 

The Antideficiency Act bars officers and employees of the U.S. Government and the government of the District of Columbia from making or authorizing expenditures or obligations exceeding the 

amount available in appropriation. The Budget and Accounting Act 

requires the head of each agency, which includes the District government, to submit a budget request to the President for transmission to Congress. The Home Rule Act states that the council 

may not amend or repeal any act of Congress which is not restricted in its application exclusively in or to the District. 

In addition to applying to the District, both the Antideficiency 

Act and the Budget and Accounting Act apply to all officers and 

employees of the United States and heads of Federal agencies. 

Thus, the Home Rule Act bars the District from amending or repealing these statutes. 

We concluded that without affirmative congressional action otherwise, the requirements of the Antideficiency Act continue to 

apply and District officers and employees may not obligate or expend funds except in accordance with appropriations enacted into 

Federal law by Congress. The District government also remains 

bound by the Budget and Accounting Act, which requires it to submit budget estimates to the President. 

We examined the legislative history of the Home Rule Act and 

found that it supported the conclusion that the Antideficiency Act 

continues to apply to the District. Although the Senate version of 

the Home Rule Act would have granted considerable fiscal autonomy to the District, the conference committee adopted the House 

provisions that required that the District submit its budget to Congress. The stated reason was that they did so to preserve the process through which Congress appropriates amounts for the District. 

By considering and explicitly rejecting the idea of granting greater 

budget autonomy to the District, Congress reserved to itself the authority to appropriate funds for the District. 

We considered other arguments made in support of the Budget 

Autonomy Act. One such argument was that Congress granted the 

District a permanent appropriation of the District’s local funds that 

would make local funds available without further action by Congress. We disagree. By law, the making of an appropriation must 

be expressly stated and cannot be inferred or made by implication. 


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Congress enacts appropriations by identifying the source of funding 

and authorizing the obligation and expenditure of those funds. Congress has not provided the District with such authority. 

A further argument was that the purpose and text of the 

Antideficiency Act would be satisfied when the District government, rather than Congress, enacts an annual appropriation. 

Again, we disagree. Pursuant to the Constitution, both the appropriations power and the exclusive power to legislate over the District belong to Congress. As the cornerstone of fiscal laws enacted 

by Congress to implement its power of the purse, the Antideficiency 

Act clearly applies to the District, both by its very terms and by 

the terms of the Home Rule Act, reflecting Congress’ decision to expressly limit District spending to amounts Congress appropriates. 

We also considered whether it was legally significant that Congress has not enacted into law a resolution disapproving of the 

Budget Autonomy Act. Since the Home Rule Act provided no authority to enact the Budget Autonomy Act and acts taken without 

legal authority are void at the outset, it is of no legal significance 

that Congress did not enact a resolution disapproving of the Budget Autonomy Act. 

GAO does not take a view on the merits of Congress granting 

greater budget autonomy to the District. Under the framework that 

the Constitution has established, only Congress has power to determine the nature of the District’s process. In the Home Rule Act, 

Congress clearly established that it continues to retain sole authority to appropriate amounts for the District. If Congress wishes to 

change the District’s budget process, it may, of course, do so by enacting legislation. 

We are aware of court rulings issued after our January 2014 

legal opinion. GAO’s analysis and conclusions are consistent with 

and compelled by Congress’ constitutional authority to exercise exclusive legislation over the District and with the laws Congress has 

enacted pursuant to that authority. 

Thank you, Mr. Chairman and ranking member. This concludes 

my statement, and I’d be pleased to answer any questions you may 

have. 

[The prepared statement of Ms. Perez follows:] 


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Mr. MEADOWS. Thank you so such. 

Mr. DePuy, you are recognized for 5 minutes. 

STATEMENT OF JACQUES DEPUY 

Mr. DEPUY. Thank you very much, Mr. Chairman, members of 

the committee. Thank you for inviting me to testify today with regard to congressional intent in the passage of the D.C. Home Rule 

Act of 1973. 

I was subcommittee counsel to the Subcommittee of the House 

D.C. Committee, which held the hearings on and initially drafted 

the D.C. home rule bill in 1973. I was also very actively involved 

in the further drafting of the bill and political strategy pertaining 

to the bill in the full House District of Columbia Committee prior 

to House floor consideration of the bill and in the House-Senate 

conference committee. 

I’m also a coauthor with Jason I. Newman of a law review article 

on the Home Rule Act published in 1975 by the American University Law Review. I also participated in the litigation brought by the 

Council of the District of Columbia against then Mayor Vincent 

Gray and Jeffrey DeWitt in the United States District Court in 

May 2014, along with two other former committee staff members 

and Mr. Newman as amici curiae. I have submitted a copy of the 

brief prepared by the four of us as amici to this committee. 

Mr. DEPUY. I appear today solely on my own behalf. 

I would also like this committee to know that although I testify 

today that the Congress did not intend to delegate to the D.C. 

Council or District voters any authority over local revenues 

through the charter amendment or any other process, I am personally a fervent believer in and advocate for the rights of the citizens 

of the District of Columbia to fully enjoy all rights of self-determination. 

First, as indicated in the brief, the Home Rule Act contains numerous limitations and restrictions on the powers and authority of 

the then-to-be-created local government. Included among such limitations and restrictions were the charter amendment process, the 

authorization of a Federal payment, the budget process, and borrowing and spending. Such matters were not contained within the 

charter, were not to be subjected to a vote by District residents, 

and were not subject to the charter amendment process. In essence, 

such matters, with numerous others, were to be off limits to the 

local government. 

Secondly, when Congress adopted the Home Rule Act, it was 

clearly understood that the act did not provide the local government with budget autonomy. Specifically, there was to be no 

change in the existing line item congressional appropriations role. 

Furthermore, no distinction was made between local and Federal 

or any other category of revenues. Indeed, section 603(a) of the act 

states that, quote, ‘‘Nothing in this act shall be construed as making any change in existing law, regulation, or basic procedure and 

practice relating to...the preparation, review, submission, examination, authorization, and appropriation of the total budget’’—and I 

emphasize the words ‘‘total budget’’—‘‘of the District of Columbia.’’ 

This provision is not part of the charter and cannot be changed by 

the charter amendment process. 


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I direct the committee to the brief, which, as I indicated, has 

been submitted for a much more detailed discussion of these important matters. 

I’m happy to respond to questions, and I thank you. 

[The prepared statement of Mr. DePuy follows:] 


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Mr. MEADOWS. Thank you, Mr. DePuy. 

Chairman Mendelson, you’re recognized for 5 minutes. 

STATEMENT OF PHILIP H. MENDELSON 

Mr. MENDELSON. Thank you Chairman Meadows, Ranking Member Connolly, Congresswoman Norton, and other members of the 

committee. I appreciate this opportunity to testify. 

Although the topic for today’s hearing is ‘‘D.C. Home Rule: Examining the Intent of Congress in the District of Columbia Home 

Rule Act of 1973,’’ I want to speak more generally about the purpose and need for budget autonomy for the government of the District of Columbia. 

With all due respect, the fundamental question before us is not 

whether budget autonomy as enacted by the Council and the voters 

is legitimate or consistent with the intent of the 93rd Congress. 

Rather, the fundamental question is whether Congress today wants 

budget autonomy for the District. 

I frame the question this way because, as you know, Congress 

has plenary authority over the District. We have made our case in 

court that the Budget Autonomy Act of 2012 is legitimate. But that 

really doesn’t matter if you, a majority of the Members of the 

House and Senate, want to overturn it because you can do so. 

When we talk about budget autonomy, we are talking about only 

the local dollars portion of our budget. Many people believe the 

District’s budget is comprised of Federal dollars because it has 

been appropriated by Congress in the same process as the budgets 

of the Federal departments. You know it isn’t. In fact, 74.6 percent 

of our budget comes from locally imposed fees and taxes. 

So I want to make three points. First, why budget autonomy is 

a good thing, that having budget autonomy is best practice for the 

fiscal management of the District. Second, why Congress shouldn’t 

want exclusive budget authority over the District. And third, that 

while budget autonomy makes a big difference for the District, it 

does not make a big difference for Congress. 

Why is budget autonomy a good thing? There are many reasons. 

It allows us to adopt our budget more quickly. It allows us to make 

changes, especially reductions in an economic downturn, immediately. 

It also allows us to move quickly to implement a solution to 

emerging service needs. For instance, responding to a spike in 

homicides. 

It gives us flexibility to change our fiscal year so as to better 

align it with the school year or the fiscal year of regional authorities. It also gives us the flexibility to budget or spend across fiscal 

years, such as rewarding program managers who save funds by allowing them to carry those funds forward. 

Budget autonomy severs our ability to spend from the uncertainties of the Federal appropriation process. I mean, to put it bluntly, 

government shutdowns and the failure to appropriate timely. 

It also enables us to tighten the period between budget preparation and implementation. Currently, the budget beginning October 

1 is adopted 4 months earlier, in May, and based on revenue estimates prepared 7 months earlier, in February. 


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All of these positives from budget autonomy can be summed up 

in one simple fact: Budget autonomy helps our credit rating or Wall 

Street. Being tied to the Federal appropriations process is a negative rating factor. 

Congress shouldn’t want exclusive budget authority over the District. Some 145 years ago, Congress dissolved the territorial government of the District of Columbia and assumed direct control. It 

might have made sense during the century between reconstruction 

and home rule to treat the District as if it were an agency of the 

Federal Government, like the Department of Agriculture. In that 

time, Congress appropriated large Federal payments each year as 

part of our budget. Accordingly, both houses of the Congress had 

committees focused expressly on the District and substantial resources were devoted by you to running the District. 

All that has changed. There is no longer a House or Senate District committee. While I’m sure our annual budget is carefully reviewed, Congress no longer rewrites it. Indeed, our budget is almost an afterthought in the Federal appropriation process, as evidenced by our treatment during the last government shutdown. 

Congress wasn’t sure it could trust us to handle our own finances 

when we got limited home rule in 1974, but all of that has 

changed. In many ways we have today the best financial situation 

of any large city in the Nation. 

Congress will always have budget authority over us because it 

has plenary authority, but Congress should no longer want to 

maintain exclusive budget authority over the District. Not only is 

it a drag, as I outlined in my first point, but it is no longer necessary and Congress is no longer set up for it. 

While budget autonomy makes a big difference for the District, 

it does not make a big different for Congress. Congress has failed 

to adopt our budget on time in almost 20 years, has not made any 

substantive changes to our local funds budget since at least the 

control board some 15 years ago. 

In recent years, the Congress has tried to help the District by 

giving us authority to increase appropriations—slightly—when revenues increase and to enable us to spend our local budget without 

an appropriation during a government shutdown. These congressional actions actually support our argument that allowing local 

budget autonomy won’t make a big difference for Congress. 

What does Congress give up or lose with budget autonomy? 

Nothing. If you are worried we will misspend our money, Congress 

still has plenary authority to step in at any time. Congress also can 

have oversight hearings on our spending or on our local programs 

at any time, which you can do with or without a pending appropriation. As for riders, I would suggest hesitantly, that there will 

still be a Federal appropriations act for the District. 

The pros versus the cons are overwhelming. The District is better 

off with it, not just as a home rule issue, but as a fiscal matter. 

Meanwhile, Congress gives up nothing fundamental and budget autonomy for our local dollars better matches the current structure 

and practice of the Congress. 

As I said at the outset, the essential question before us today is 

not what was the intent of the 93rd Congress, but whether ConVerDate Nov 24 2008 11:30 Feb 17, 2017 Jkt 000000 PO 00000 Frm 00096 Fmt 6633 Sfmt 6633 H:\23481.TXT APRIL

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gress today will support budget autonomy for the District. Thank 

you. 

[The prepared statement of Mr. Mendelson follows:] 


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Mr. MEADOWS. Thank you, Chairman Mendelson. 

Mr. Nathan, you are recognized for 5 minutes. 

STATEMENT OF IRVIN B. NATHAN 

Mr. NATHAN. Thank you, Mr. Chairman. Thank you for the invitation to appear here today to testify about the validity of the District of Columbia Budget Autonomy Act, which was passed by the 

D.C. Council in 2012 and ratified by the District voters in 2013. 

During that period I served, as you mentioned, as the attorney general for the District. 

I want to make clear that my views today about budget autonomy for the District are the same as when I was the D.C. attorney 

general. I believe that budget autonomy for the locally raised revenues of the District is sound and appropriate public policy. And for 

the reasons that have been described by the ranking member, by 

Congresswoman Norton, and by Chairman Mendelson, I think they 

should be enacted by the Congress. And if it were enacted by the 

Congress, it would be signed by the President. 

However, unilateral legislation by the D.C. City Council enacting 

such a budget autonomy contravenes several explicit provisions of 

the Home Rule Act of 1973, contravenes the legislative bargain 

that led to the passage of home rule. It violates, as said by GAO, 

the longstanding Federal Antideficiency Act. And in my view, the 

Council’s Budget Autonomy Act is null and void, and implementation of it may put D.C. office holders and their actions in legal jeopardy. This is the same opinion I expressed when I was the attorney 

general. 

I want to make clear that my views are shared by the career lawyers at the attorney general’s office. They are shared by the current 

elected attorney general, who courageously took this position in litigation during his election campaign, and in litigation in the Federal and local courts. And it’s the view of the only Federal Court 

to look at this issue. 

The legislative history is clear and so is the language of the statute. The legislative history is that the Home Rule Act was not 

going to pass until the Diggs compromise was reached, and you 

mentioned the ‘‘Dear Colleague’’ letter. That compromise gave limited home rule to the District and left budget authority with the 

Congress. 

I note that neither Mr. Mendelson in his testimony nor the outside council for the city mentioned in their prepared testimony the 

language of the law, the Diggs compromise, or Federal Judge 

Emmet Sullivan’s decision. I believe that Judge Sullivan’s decision 

is a very sound one and is likely to be followed by courts that deal 

with this issue in the future. 

What’s important to recognize is that there is no court decision 

that has yet been decided that is going to be binding on any other 

court that is likely to consider this matter in the future. There 

could have been if Mayor Bowser’s outside lawyers had allowed the 

matter to be decided by the Federal Court of Appeals. But they 

asked the Federal Court of Appeals to dismiss the case as moot and 

asked it to be remanded to the Superior Court. 

When they asked it to be remanded, they said they were going 

to seek dismissal of the action in the Superior Court and claimed 


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that the action was not ripe as to the CFO, who was another party 

to that case. But when they got back to the Superior Court, they 

changed positions and said it was urgent to have this resolved, and 

they asked the Superior Court to decide it. And as you know, the 

Superior Court sided with the Council and said that this was valid. 

In my testimony, I discuss the deficiencies of the Superior Court 

decision, and I think what’s most important is that in a future litigation neither the Superior Court’s decision nor Judge Sullivan’s is 

going to be binding, but I believe that as a result of the Council’s 

legislation there will be future litigation. There is already a case 

pending in the Federal Court, as you mentioned. And after this 

takes effect, it is inevitable, it seems to me, that there is going to 

be future litigation. And in the future litigation, I think most 

judges are going to find Judge Sullivan’s decision invalidating this 

act, is going to find that persuasive and not find the Superior Court 

persuasive. 

What I think and what has troubled me all along is that this is 

going to lead to confusion and chaos in the District’s budgeting and 

finances, and I don’t believe that’s in anybody’s interest, certainly 

not the residents of the District of Columbia and not in the congressional interest. I think everyone has an interest in seeing that 

there is no confusion and chaos in the budget or financial affairs 

as a result of litigation over the Budget Autonomy Act. That kind 

of confusion would not be fair to the D.C. residents or the many 

people who work in the District every day or tourists whose come 

and rely on the services. 

Now, the best way to present such confusion or uncertainty is for 

Congress to enact budget autonomy, as the D.C. delegate has urged 

for years, in legislation, and as the President has recommended, 

and as the referendum shows that the D.C. residents desire. 

You know, I think it’s pretty clear that, as Mr. Mendelson has 

said, that the officials in the District of Columbia are responsible 

stewards of the D.C. budget and they would do a good job. They 

have done a good job and I think they would continue to do a good 

job of maintaining fiscal responsibility. And as noted, this would be 

consistent with congressional responsibility, which can always pass 

legislation if Congress is not satisfied with a particular policy or 

expenditure of the D.C. government. 

So I think that the right solution to avoid this future litigation, 

which is going to be confusing and unfortunate, is for Congress to 

recognize the validity of what has been said here by Mr. Mendelson 

and by Congresswoman Norton and to pass budget autonomy and 

clarify the situation which at the moment is—it could be very deleterious to the District and, therefore, to the Nation. Thank you. 

[The prepared statement of Mr. Nathan follows:] 


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Mr. MEADOWS. Thank you, Mr. Nathan. 

Mr. Netter, you are recognized for 5 minutes. 

STATEMENT OF BRIAN NETTER 

Mr. NETTER. Thank you, Chairman Meadows, Ranking Member 

Connolly, and members of the subcommittee. My name is Brian 

Netter and I’m a partner in the Washington, D.C., office of the law 

firm Mayer Brown. 

Along with my co-counsel, Karen Dunn of Boies, Schiller & 

Flexner, I was retained on a pro bono basis by the Council of the 

District of Columbia to independently assess whether the Local 

Budget Autonomy Act of 2012 complies with Federal law, including 

the Home Rule Act of 1973. I was not then and am not now an advocate for any policy outcome. Questions about why budget autonomy is desirable for the District and for Congress are better directed to Chairman Mendelson. My team’s objective was to determine whether the Budget Autonomy Act comports with Federal requirements. 

When we began investigating the legal issues presented by the 

Budget Autonomy Act, various political actors had taken positions 

already as to the validity of the act. But so far as we were aware, 

none had undertaken the no-stones-unturned sort of investigation 

warranted by the circumstances here. We therefore undertook an 

exhaustive investigation that began with the review of the 4,000- 

page set of committee proceedings from 1973, and ultimately resulted in us contacting each of the living Members of Congress who 

served on the relevant committees in 1973, as well as consulting 

the personal archives of key Members and Senators who have died. 

The Home Rule Act represented a bipartisan success of the civil 

rights era. Overcoming longstanding resistance that had been 

blamed on racist attitudes toward the District, Congress came together to create for the District of Columbia a government by the 

people, of the people, and for the people. 

The centerpiece of the Home Rule Act was the District’s charter, 

which Congress envisioned as akin to a State constitution. In 1973, 

Congress created the process through which the District could propose amendments to the charter. Those amendments would become 

law only if both Chambers of Congress affirmatively approved the 

amendment by enacting a concurrent resolution. Because Congress 

retained for itself the ultimate authority to approve those amendments, the limitations on the District’s charter amendment authority were few and narrow. 

In 1983, the Supreme Court’s decision in INS v. Chadha invalidated legislative procedures, such as the procedure for amending 

the District’s charter. Accordingly, Congress needed to change the 

process. Congress decided to make amendments proposed by the 

District presumptively valid unless Congress enacted and the 

President signed a joint resolution of disapproval. In so doing, however, Congress did not alter the narrow set of limitations on the 

District’s charter amendment authority that had been enacted in 

1973 when Congress’ affirmative ascent was required. 

We investigated each of the supposed limitations on the District’s 

authority that opponents of the Budget Autonomy Act used to question its legitimacy. In particular, we reviewed the reports that were 


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supplied by GAO and by Mr. Nathan. But we found the concerns 

in those reports to be legally unfounded. 

In our system of laws, where there is a dispute about the interpretation or validity of a statute, it is the province and duty of the 

judicial department to say what the law is. And so we filed a lawsuit so that the issue could be resolved as our Constitution contemplates. 

This was a high-profile case that received attention from 

thoughtful commentators. The Superior Court had before it briefs 

from the three parties, the Council, the mayor, and the chief financial officer, as well as friend of the court submissions from 11 different groups offering their views. Those groups included scholars 

on Federal budget law, legislative interpretation and local government law, and legislators and staffers who participated in the 

drafting of the Home Rule Act in 1973. 

There obviously isn’t sufficient time for us to discuss all of the 

many contours of those briefs. However, they provide a very detailed and sophisticated understanding of what Congress was 

doing, the context in which it was doing what it did, and how subsequent events, including the Supreme Court’s decision in Chadha, 

affect the analysis of the Home Rule Act today. 

On March 18, 2016, the Superior Court for the District of Columbia issued an opinion upholding the Budget Autonomy Act and offering a detailed explanation for why the opponents of the legislation were incorrect. The Superior Court permanently enjoined all 

district officers and officials to enforce all provisions of the Budget 

Autonomy Act, and the time to appeal has now expired. 

What this means is that budget autonomy is, indisputably, the 

law of the District of Columbia. Congress retains its plenary authority over District affairs and will have the same review period 

over the District’s budget as it has over any other legislation that 

originates from the D.C. Council. But in circumstances in which 

Congress fails to act, the default rule is now that the D.C. government will not be paralyzed and will instead be permitted to operate. 

I thank the subcommittee for the opportunity to discuss these 

important matters and would be pleased to answer any questions. 

[The prepared statement of Mr. Netter follows:] 


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Mr. MEADOWS. Thank you, Mr. Netter. 

The chair recognizes the vice chair of the Subcommittee on Government Operations, the gentleman from Michigan, Mr. Walberg. 

Mr. WALBERG. Thank you, Mr. Chairman, and thanks to the 

panel for being here. 

Mr. DePuy, you were counsel to the committee responsible for 

the Home Rule Act at the time of its drafting. Can you describe for 

us the extent to which the act was debated at the committee level? 

Mr. DEPUY. Yes. Congressman, the debate on the so-called Diggs 

compromise occurred after the bill had been reported to the floor, 

and it became clear to the majority of the committee that there 

were insufficient votes to pass the bill as then constituted. A majority of the committee members then chose to support a substitute 

amendment to the committee’s own bill, a somewhat unusual procedure, and it was debated extensively on the floor. It was the subject of the ‘‘Dear Colleague’’ letter that the chairman mentioned. 

Mr. WALBERG. It was debated in the committee as well? 

Mr. DEPUY. It was not debated—— 

Mr. WALBERG. So it was sent to the floor. 

Mr. DEPUY. It was sent to the floor, that’s correct. And then, of 

course, it was the subject of much discussion in the Senate-House 

conference committee. 

Mr. WALBERG. How was it altered out of committee on the floor? 

How was it altered? 

Mr. DEPUY. The provision dealing with the basic appropriations 

process and the basic budgetary process was not amended. It was 

very clear and made clear by the Members of both parties that that 

topic was essentially not debatable and had to remain as it was 

and as it was passed by the House. 

Mr. WALBERG. Was the 1973 act the only time either Chamber 

introduced home rule legislation while you were working in Congress? 

Mr. DEPUY. The Senate had for years introduced home rule legislation. The House had not done so until Chairman Diggs became 

chairman of the House District of Columbia Committee, and so essentially that was the first time that the House in decades, if not 

longer, had considered home rule. 

Mr. WALBERG. But it didn’t pass any of those efforts prior for any 

specific reason that you could determine? 

Mr. DEPUY. The House D.C. Committee, prior to the time when 

Chairman Diggs and others became a majority of the committee, I 

think it’s fair to say was not particularly disposed towards granting 

the city much authority and retained as many powers as it could. 

So there was a disinclination by the prior committee to undertake 

any legislation that would generally grant more power to the city. 

Mr. WALBERG. Why was the budget autonomy removed from the 

final home rule legislation if it was included in earlier versions? 

Mr. DEPUY. It was decided as the bill got closer to being considered on the House floor that there were just not sufficient votes to 

pass the bill as it had been prepared on this topic prior to House 

consideration. There was considerable opposition from the House 

Appropriations Committee and from key Members of Congress to 

the home rule bill as it came out of committee prior to the Diggs 

substitute and the so-called Diggs compromise. 


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Mr. WALBERG. Was the removal of the budget autonomy from the 

Home Rule Act an intentional action by Congress? 

Mr. DEPUY. Yes, very clearly so. 

Mr. WALBERG. Very clearly intentional? 

Mr. DEPUY. Yes. 

Mr. WALBERG. What’s the importance of section 603 in the Home 

Rule Act as it relates to the budgetary process? 

Mr. DEPUY. I think that section is very clear that the congressional appropriations process and powers were not to be delegated 

to the new local government. 

Mr. WALBERG. Thank you. I yield back my time. 

Mr. MEADOWS. I thank the gentleman. 

The chair recognizes the ranking member. 

Mr. CONNOLLY. Because of the exigencies of schedule, Mr. Chairman, I would ask that my colleague, my friend from Missouri, Mr. 

Clay, be recognized at this time, reserving my right to revert back. 

Mr. MEADOWS. The chair recognizes the gentleman from Missouri, Mr. Clay, for 5 minutes. 

Mr. CLAY. Thank you so such, Mr. Chairman. 

Thank my friend Mr. Connolly, as well as Ms. Norton, for your 

indulgence. 

Chairman Mendelson and Mr. Nathan, even with budget autonomy, all the Federal financial mandates on the District of Columbia 

remain in place. These include an independent chief financial officer, a borrowing cap, emergency and contingency reserve accounts. 

Moreover, the financial control board that Congress put in place in 

1995 to address the District’s financial crisis automatically comes 

back into existence if the District fails to meet any of seven financial conditions, such as not meeting its payroll for any pay period. 

I would like both of you to answer this question. Under budget 

autonomy is there any reason to be concerned that the District will 

not balance its budget or otherwise lose its fiscal discipline? Mr. 

Mendelson first. Go right ahead. 

Mr. MENDELSON. Thank you, Congressman Clay. You’re correct 

in your question that those protections remain in place and that we 

have requirements under the law with regard to certain processes 

and to ensure that we have a balanced budget and that we can 

make payroll and that we remain in good fiscal order. 

I would want to add this, though. Yes, there is a requirement in 

the law written by Congress about reserves, that we have to have 

two reserves. In fact, we have four reserves. There are two that we 

have added. And, in fact, the reserves that we have are substantially more than what Congress requires. And, in fact, our goal is 

to achieve reserves equivalent to 60 days of operating expenditures. 

That’s far in excess of the congressional requirement. And we are 

currently at, I believe, 49 days of reserves. 

In addition, you mentioned the borrowing cap, which is in the 

Home Rule Act. It is 18 percent of revenues, no more than that can 

be dedicated to interest payments. Well, we passed a local law that 

says 12 percent. So we are far better than what the Federal requirement is. 

But I would add that there are some other things that we have 

in place, and this is something that you see across the country with 

regard to local jurisdictions and States as well, and that is how 


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they are doing with their unfunded pension liability and the other 

post-employment benefits. And while that’s not written into the 

Home Rule Act, we see city after city struggling with a huge unfunded liability. 

Well, on our retirement funds, our unfunded liability is zero. We 

are at 105 percent funded. And with regard to the other post-employment benefits, where city after city has zero, and that is to say 

they have 100 liability, we are 120 percent funded. 

There is no other jurisdiction in the country, when you put the 

two together, that’s as good as the District of Columbia. 

Mr. CLAY. Thank you for that response. 

Mr. Nathan? 

Mr. NATHAN. Well, I agree with the question. Those restrictions 

are all in place and are adhered to by the District of Columbia. My 

concern is, as I’ve expressed it before, that with the Local Budget 

Autonomy Act, which will allow officials of the District to spend 

money that is not appropriated by Congress, that people could find 

that there are some violations of both Federal law and the Home 

Rule Act and that, for example, you said that we have to meet— 

the District has to meet the payroll. If those people are paid by 

funds that have not been appropriated by Congress, there would be 

an issue as to whether or not the District is in compliance. If it is 

not in compliance, there is a chance that the control board could 

come back into effect, which is not a position to be desired at all. 

So, again, this is a reason why the passage of the Budget Control 

Act by the council was not well advised, but I urge the Congress 

to think about—— 

Mr. CLAY. Fair enough, fair enough. And I agree with that. 

Mr. Chairman, I think the conversation needs to happen on this 

side now with the impetus of what Mr. Nathan said, that we are 

reasonable people. We are guests of the people of the District of Columbia. They are gracious. They are welcoming. They host us as 

the seat of government. We need to be reasonable and realize that 

they have evolved too since 1973. We need to be reasonable about 

that. 

I don’t know if you are willing, but I wanted to kind of share 

some of the history with the gentleman from Michigan of how that 

compromise came about in 1973. The resistance wasn’t on your side 

of the aisle. It was on our side of the aisle because of the seniority 

system. And you had the mostly Southern Democrats that controlled that committee with the District of Columbia, and that’s 

how the compromise came. 

Mr. MEADOWS. Are you saying this was all the Democrats fault? 

Mr. CLAY. I am. I am admitting it, but I think that the Republicans—— 

Mr. MEADOWS. I believe the gentleman’s time has expired. 

Mr. CLAY. I know my time has expired. 

Mr. MEADOWS. I thank the gentleman. 

The chair recognizes himself for a series of questions. 

Ms. Perez, let me ask you, does the Antideficiency Act apply to 

the District of Columbia? 

Ms. PEREZ. Yes, Mr. Chairman, it does. The Antideficiency Act 

by its own terms applies not only to officials and employees of the 

U.S. Government but specifically to officials and employees of the 


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District government. In addition, the Home Rule Act states that 

the Antideficiency Act continues to apply to the District and also 

includes a section that says that District funds continue to be appropriated by Congress so employees can only obligate in accordance with congressional appropriation. 

Mr. MEADOWS. So is it GAO’s opinion that the District of Columbia would be in violation of the Antideficiency Act in the event that 

the Budget Autonomy Act is implemented. 

Ms. PEREZ. We would only opine on an Antideficiency Act violation if we had facts before us. That is the nature of how we do our 

opinions. But, certainly, we think it would be advisable for the District to consider the implications of the Antideficiency Act. It does 

say that District employees may not obligate or expend funds, except in accordance with an appropriation enacted by Congress or 

also that they cannot obligate or expend funds before they receive 

such an appropriation. 

Mr. MEADOWS. So, Chairman Mendelson, with that information 

before you, do you believe that it is prudent to put potentially D.C. 

employees or those who would expend the funds at a disadvantage 

as it relates to the Antideficiency Act and potential punishment 

therewith? 

Mr. MENDELSON. Well, I would have that concern, Chairman 

Meadows, except that we thought the way to resolve that would be 

to seek a declaratory judgement in court, and that was why the 

council initiated the litigation. And the litigation, as has been 

largely described, it was filed in superior court, and then it was removed to Federal court. And the circuit, as I recall, vacated the decision and remanded it to the superior court. 

Mr. MEADOWS. Well, it was actually the mayor that—they didn’t 

judge it necessarily on the merits of that particular case, as I understand. I’ve read hundreds and hundreds of pages. I know more 

about Home Rule than I ever cared to know about in the history 

thereof. So what we have is a superior court that has made a judgment on Federal law where there should be some question jurisdictionally with regards to that particular decision. And so, in light 

of GAO’s concern, do you not share that same concern for D.C. employees? 

Mr. MENDELSON. The short answer would be no. We have a court 

order, and the court order—— 

Mr. MEADOWS. I would suggest that maybe you rethink that because I think it’s—Mr. Chairman, it is a great concern of mine, if 

they were my employees or under my direction to put them in a 

legal battle that is still ongoing, still being litigated, but potentially 

has the threat of not only fines, but criminal violations. 

Mr. MENDELSON. Well, Chairman Meadows, there are two parts 

to this: One is whether we comply with the Antideficiency Act, and 

not only do we comply with the Antideficiency Act—in fact, we 

have a local Antideficiency Act that is stronger than the Federal 

Act with regard to our spending. So, with regard to that issue, 

there isn’t an issue. The other part of it has to do with whether 

we could spend our local dollars without appropriations. 

Mr. MEADOWS. That’s a different philosophy. So let me go a little 

bit—Mr. Nathan has put forth a number. And I have read things 

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ions that I find very illuminating because your opinion is, is that 

you want budget autonomy personally. Is that correct? 

Mr. NATHAN. That’s correct. 

Mr. MEADOWS. And so your personal opinion is that you believe 

D.C. should have budget autonomy, but the way they went about 

it was, in your opinion, not legal. Is that correct? 

Mr. NATHAN. That’s correct. But Congress has the ability to do 

it, and I think it is good policy and should be done. 

Mr. MEADOWS. Well, and so as we look at that, Mr. Netter, let 

me come to you, because you have unbelievably found all kinds of 

information that I have not been able to find in reading hundreds, 

if not several hundred, pages of documents in the history and going 

through. How do you reconcile paragraph 601, 602, and 603 that 

shouldn’t, in my mind, reading the clear language, are not amendment. And yet what we’ve done is the D.C. has tried to amend 

those through this particular action. How do you reconcile that? 

Mr. NETTER. Well, chairman, I disagree vehemently that the District has tried to amend any of those provisions. There are a number of provisions and subprovisions within—— 

Mr. MEADOWS. Well, that’s an interesting fact because 603 is 

very clear in terms of what it is. And it basically spells out in the 

context of how it’s written this whole discussion that we’re having. 

Mr. NETTER. It does, but I disagree with your conclusions. Section 603(a) says: Nothing in this act shall be construed as making 

any change to existing law. And that sort of provision, which I am 

sure the chairman is quite familiar with, is a provision that is a 

rule of construction for the particular statute being enacted that 

explains how the statute is to be interpreted. And our litigating position, which was adopted by the superior court, was that section 

603(a) explains for everybody to understand what Congress was 

achieving in 1973. 

Mr. MEADOWS. But let’s go on. Let’s look at other paragraphs 

there, because if you look at the original intent of Home Rule in 

the 100 paragraphs, if you look at really the amendment process 

in the 300 paragraphs, and then you go to 601, 602, and 603, not 

just those, but if you look at the details of that, I don’t see how 

you can find any other conclusion other than it was truly the intent 

of Congress to keep the appropriation process as a function of Congress and not to allow it to ever be amended. 

Mr. NETTER. Well, there are two separate issues there, chairman. 

The first is whether Congress was granting budget autonomy in 

1973, and we agree that it wasn’t. The second question, however, 

is whether Congress was intending to prevent the District from 

proposing any changes to its budget process under the amendment 

authority that existed in 1973. Now, as I indicated in my opening 

statement, at the time, both chambers of commerce needed to acquiesce, needed to affirmatively agree with—— 

Mr. MEADOWS. Which they did with the Diggs compromise. And 

so if there is the Diggs compromise that, if you go back through 

the Congressional Record, it’s very clear that the appropriators, 

which as my friend from Missouri talked about were Democrats at 

the time, wanted to maintain control. Did you not find that in your 

research? I know you didn’t argue it, but did you not find that—— 


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Mr. NETTER. We certainly did. We acknowledge that they wanted 

to maintain control, and they did maintain control by—— 

Mr. MEADOWS. Is that not the intent of Congress in 1973? 

Mr. NETTER. But the intent of Congress was also to create an 

amendment process, and the District here followed that amendment process. 

Mr. MEADOWS. Well, I respectfully disagree, and I’m out of time. 

But I will recognize the ranking member, Mr. Connolly, for a 

very gracious 7–1/5 minutes. 

Mr. CONNOLLY. My friend is always there. I thank him. 

You know, the King of Siam in ‘‘The King and I’’ when faced with 

all kinds of inexplicable problems would say, ‘‘It’s a puzzlement.’’ 

There is a lot to sort out here. 

Let me start with you, Ms. Emmanuelli Perez, you’re the managing associate general counsel. Has somebody designated you as 

the judicial arbiter of constitutional issues or even adjudication of 

judicial rulings? 

Ms. PEREZ. No, Mr. Ranking Member. The GAO—— 

Mr. CONNOLLY. My name is Connolly. You can address me by my 

name. 

Ms. PEREZ. No, Mr. Connolly. GAO has statutory authority to 

issue legal opinions to Congress on the use of appropriated funds, 

to interpret the applicability of the Antideficiency Act, and we’ve 

been doing so since—— 

Mr. CONNOLLY. Even when there has been an adverse judicial 

ruling? You get to ignore judicial rulings? 

Ms. PEREZ. Our legal opinion, we issued it in January of 2014, 

prior to the opinions. 

Mr. CONNOLLY. Ah, but in your testimony today, you, therefore, 

took no cognizance of the fact that there’s in fact been intervening 

judicial ruling. 

Ms. PEREZ. Well, we have not issued—— 

Mr. CONNOLLY. I understand, but what am I supposed to do as 

a Member of Congress with your testimony as if there were no 

court and no court opinion. You are supposed to be advising us? 

Ms. PEREZ. Well, and we are—— 

Mr. CONNOLLY. It seems you have a legal obligation, Ms. Perez, 

to take cognizance of a judicial ruling when you come here under 

oath and testify. And you’ve ignored the fact that there was a judicial ruling, which I think taints your testimony? 

Ms. PEREZ. No, sir. I would not agree that we’ve ignored it. What 

we’ve said—— 

Mr. CONNOLLY. Well, you didn’t even mention it. 

Ms. PEREZ. No, I did. I said that we acknowledge that there are 

court cases. What we have stated—— 

Mr. CONNOLLY. Court cases? There is a court case. 

Ms. PEREZ. Yes. And the—— 

Mr. CONNOLLY. The dispositive court case is in front of us. 

Now, Mr. Nathan shares your legal opinion, which I’m going to 

get to, about, that notwithstanding, it still requires an act of Congress because he thinks and apparently you think that Mr. 

Mendelson and his friends, colleagues, on the city council have put 

themselves in legal jeopardy, notwithstanding a court ruling, because of the Antideficiency Act. Is that correct? 


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Ms. PEREZ. What we have interpreted is that the Antideficiency 

Act, pursuant to Congress’ constitutional powers in this case, is it 

continues to apply. That’s our opinion. 

Mr. CONNOLLY. Okay. But let me explore. Your opinion is, even 

though there’s been a court ruling, that Mr. Mendelson and his colleagues are relying on, nonetheless, somebody somewhere is going 

to find them in legal jeopardy, irrespective of a court ruling that 

they cite as their legal protection. You really think someone is 

going to prosecute him and his colleagues in light of the legal ruling they are relying on? Really? 

Ms. PEREZ. Mr. Connolly, what we are saying is that we believe 

the Antideficiency Act continues to apply. And so, therefore, because it continues to state in codified law that it applies to the District of Columbia in addition to in the Home Rule Act that we always advise agencies and entities to follow the Antideficiency—— 

Mr. CONNOLLY. Well, if I were a member of D.C. City Council, 

quite frankly, though you put that nicely—the same with you, Mr. 

Nathan—I would call it intimidation. By citing Antideficiency and 

their exposure, irrespective of a court ruling, I don’t know how else 

to conclude if I were a member of the D.C. City Council, other than 

you’re warning me I could be in legal jeopardy; I should ignore 

court ruling, or I can ignore court ruling. Now I just think that’s 

improper. I think that’s not useful counsel for them, and it’s certainly not welcome counsel for me as a Member of Congress seeking guidance through a very meddlesome set of problems. 

Mr. Nathan, did you wish to comment? 

Mr. NATHAN. Yes, I do. First of all, the statute, the 

Antideficiency Act, which has been in existence for over 100 years, 

is, of course, the supreme law of the land. That’s a congressional 

statute. And everyone, including District officials, has to comply 

with that law. 

Mr. CONNOLLY. Because I’m running out of time, Mr. Nathan, let 

me ask a question pursuant to what you just said. 

Mr. NATHAN. Okay. 

Mr. CONNOLLY. So is it your testimony that the court ignored the 

Antideficiency Act in giving its ruling? 

Mr. NATHAN. It’s my view that the court got it completely wrong. 

Mr. CONNOLLY. Aha. 

Mr. NATHAN. In the first place, I think what’s important is the 

court, unlike the Federal court, ignored the GAO. The GAO is the 

Federal expert—— 

Mr. CONNOLLY. Listen, Mr. Nathan—Mr. Nathan. I’m sorry. I’m 

running out of time. I think the Heller ruling was wrong. 

Mr. NATHAN. I think so too. 

Mr. CONNOLLY. I think the court got it wrong. 

Mr. NATHAN. I agree. 

Mr. CONNOLLY. But I don’t get to ignore it. I don’t get to dismiss 

it. 

Mr. NATHAN. But there is a—— 

Mr. CONNOLLY. I don’t get to advise the city council they can afford to do so. 

Mr. NATHAN. There is a very substantial difference, Mr. 

Connolly, between the U.S. Supreme Court, which issued the Heller opinion, and one trial judge of the Superior Court of the District 


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of Columbia, which will have no binding effect on any other 

court—— 

Mr. CONNOLLY. Wait a minute. Thank you. It’s my time, sir. 

On January 30th, GAO opined the BAA was invalid. 

Mr. NATHAN. Right. 

Mr. CONNOLLY. Its opinion did not have the force of law.You 

don’t have force of law. On May 19, 2014, the U.S. District Court 

of the District of Columbia held that the BAA was invalid. I agree 

with GAO. On May 27th, the U.S. Court of Appeals for the District 

of Columbia vacated that ruling and ordered that the case be remanded to superior court. Hardly some rogue court action here, 

Mr. Nathan. You’re taking that out of context. It was in response 

to an appellate court—without comment sending it back. 

Mr. NATHAN. I didn’t say it was a rogue court involved. 

Mr. CONNOLLY. And without explanation, on March 18, the day 

after the holiest day of the year, Saint Patrick’s Day, the superior 

court upheld the validity of the BAA. The court ruled that the HRA 

only preserved the then existing 1973 budget process. It did not 

prohibit the District from changing the local budget process in the 

future, confirming Mr. Netter’s legal opinion. The fact that you 

think the court got it dead wrong is fascinating. You and I can 

have opinions about court rulings. That isn’t how it works. He has 

sworn to uphold the law, Mr. Mendelson, and he’s trying to do that, 

and he has an opinion. And I think that opinion is a protection 

against the Antideficiency Act and against any charge that he’s 

clearly thumbing his nose at Congress. And until and unless that 

opinion is changed or we take action, that’s the law of the land, Mr. 

Nathan. 

Mr. NATHAN. It’s not the law of the land. Let’s—— 

Mr. CONNOLLY. Well, it is a ruling he has to rely on. 

Mr. NATHAN. It is not even the law of the District of Columbia. 

It is a decision of one trial court. 

Mr. CONNOLLY. I’m sorry, sir. You’re the one cherry-picking. 

You’re choosing a process you like verses a process you don’t like. 

That’s not what an elected official has to do. He doesn’t get to do 

that. He has to rely on the court, the cognizant court of jurisdiction, that has made a ruling. And until that ruling is overturned 

or until we pass a law or take an action, he’s perfectly within his 

right to proceed. 

My time is up. I thank the chair. 

Mr. MEADOWS. I thank the gentlemen for his passion. 

And I will recognize the gentleman from Wisconsin, Mr. 

Grothman, for 5 minutes. 

Mr. GROTHMAN. We’ll try to clean up a little bit here with Mr. 

Nathan. Thanks for coming on over. Why did the court remand the 

budget autonomy case? 

Mr. NATHAN. Well, because the lawyers for Mayor Bowser, 3 

months after she took office, went to the court of appeals. It was 

after it had been argued in the court of appeals. There was a transcript—there is a transcript. I urge the court—the panel to look at 

that transcript. Not a single one of the three Federal appellate 

judges that heard the argument raised a question about the validity of Judge Sullivan’s opinion of the accuracy that it—which 

agreed with GAO that this was invalid. But the mayor said that, 


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unlike the previous mayor—of course, she was on the city council 

when it passed it law—she said she agreed with the law, and 

therefore, the matter was moot because now the mayor and the city 

council were in agreement. And the court of appeals said: Okay. It’s 

moot. 

The mayor’s lawyer said: If you remand it to the superior court 

where this case started, we will seek dismissal of the action because it should be dismissed because it’s moot and because, as to 

the CFO, the matter is not right. And then—so that’s what the 

court of appeals did. They vacated. They remanded. But when it 

got back to the superior court, those same lawyers said: Well, we 

think it is urgent that this be decided now. We ask the superior 

court to decide it. 

The superior court did not hold a hearing, as both the Federal 

district court and the court of appeals did, but based on the pleadings and the memoranda that were filed, the court issued its decision. 

With respect to Mr. Connolly and the statement about the 

Antideficiency Act, what the superior court said essentially was 

that there—that the statute, the Antideficiency Act, doesn’t say 

that the appropriation or fund has to come from Congress, and 

there is a fund here that the District has, and therefore, this 

doesn’t violate the Antideficiency Act. 

In my view, as I said in my testimony, that interpretation is inconsistent with the 100 years of Federal jurisprudence that the 

Antideficiency Act means that the appropriation or fund has to 

come from Congress. It says that all Federal agencies, including expressly the District of Columbia, has to comply with congressional 

appropriations or funds. And I point out, as I pointed out in my 

testimony, that whereas Federal judge Sullivan relied on the advice 

of the GAO, which is the expert in the Antideficiency Act, the superior court judge ignored the advice of the GAO and the opinion that 

it rendered on the subject. 

I think what’s important here is to understand that this decision 

by the superior court is not binding, even on another superior court 

judge, much less on the appellate court in the District and certainly not on any Federal district court judge or the Federal court 

of appeals. And my concern is that there could be and there already is other litigation. There’s litigation in the Federal court, and 

once this takes effect, there is likely to be other litigation. And 

when there is this other litigation, a judge is going to have a choice 

between considering the decision of Judge Sullivan, the Federal 

district court judge who gave this very serious consideration and 

wrote a very well-articulated opinion on it. And they’ll have that 

and they’ll have the opinion by Judge Holeman. And my belief is 

that a court in the future is likely to be more persuaded by Judge 

Sullivan’s opinion than by Judge Holeman. 

Mr. GROTHMAN. How would you advise Mayor Gray on the Budget Accountability Act? 

Mr. NATHAN. Well, I issued an opinion to him, and he reflected 

that in the letter, which is part of the record where he told the 

council that, because of the dangers of violating both the Home 

Rule Act and the Antideficiency Act and putting District employees 

in jeopardy, that he was not going to implement the Budget AutonVerDate Nov 24 2008 11:30 Feb 17, 2017 Jkt 000000 PO 00000 Frm 00149 Fmt 6633 Sfmt 6633 H:\23481.TXT APRIL

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omy Act. That’s what led to the litigation that Mr. Mendelson filed 

on behalf of the council. 

Mr. GROTHMAN. And, finally, in your opinion, did Congress intend to delegate the District’s autonomous budget authority. 

Mr. NATHAN. No. I’m afraid that the Congress in 1973 passed a 

Home Rule Act and specifically precluded the District from amending the Home Rule Act to provide for budget autonomy. It made it 

clear in section 303(d) that the amending procedure could not be 

used to enact any law which would violate section 601, 602 and 

603. Those sections said: We are specifically reserving authority in 

the Congress, and we’re putting limits on what the council can do. 

And among the other things that they said was: You can’t violate 

the Antideficiency Act; you can’t change the way the budget is operated now, both by the Congress, the President, OMB, and the 

practices and policies that had existed for the previous hundred 

years. 

And, of course, you know, when we looked at it, you know, we 

had hoped to find the Budget Autonomy Act valid, but when we 

looked at it, we saw that the language of the statute, the legislative 

history, and the practice for 40 years after the Home Rule Act 

would not permit it. 

In addition to the fact that, during the 40 years after Home Rule, 

that the budget was submitted, as required by the Home Rule Act, 

to the President and then to the Congress. Over that 40 years, 

every representative of the District, with the concurrence of the 

council, asked for legislation from the Congress to have budget autonomy. If those people who—including those like Walter Fauntroy, 

who was there when the Home Rule Act was passed, if they believed that the District had that authority unilaterally to change 

it immediately after the passage of the law, there would have been 

no need to ask the Congress to pass legislation. I think that those 

proposals, which, in my opinion, were valid and should have been 

enacted by the Congress and can still be enacted by the Congress 

and should be, but the fact that they asked Congress to do it is a 

pretty good recognition that they understood that the D.C. government on its own could not do this. 

Mr. GROTHMAN. Thank you so much. That’s all my time. 

Mr. MEADOWS. I thank the gentleman from Wisconsin. 

The chair recognizes the gentlewoman from the District of Columbia, Ms. Eleanor Holmes Norton, for 5 minutes. 

Ms. NORTON. Thank you, Mr. Chairman. 

I regret that Mr. Nathan had to relitigate superior court decision. 

He is a member of the bar. So am I. Whatever is the final decision 

that is not appealed is the final decision until appeals. So if you 

are Mr. Mendelson or the city council and you have a court order 

from the superior court, it seems at the very least we ought to 

agree that Mr. Mendelson and the council are protected, given the 

final order of any court in the United States at this point. And we 

shouldn’t be getting into nitpicking about whether you agree or I 

agree, because, in fact, reasonable lawyers can and have shown 

even at this table that they can disagree on the validity of the 

Local Budget Autonomy Act approved in 2013. So I want to apologize to people who have come to this hearing expecting to hear profound, principled reasons why, since the birth of the Nation, the 


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District should have had budget autonomy over its own local budget, because I’m now compelled for the record to, in fact, engage in 

some statutory construction and to ask the witnesses about their 

views. 

Mr. DePuy, you helped draft the Home Rule Act, and of course, 

that act establishes principles or procedures at least for the city to 

amend the charter—the charter can be amended; there are certain 

procedures—and for Congress to disapprove of a charter amendment during a review. Now assuming—please accept my assumptions for purposes of this question—that the Local Budget Autonomy Act, the one that was recently passed, was not otherwise prohibited by the Home Rule Act, did the District of Columbia follow 

the procedures for passing and transmitting a charter amendment 

to the Congress for a review period. 

Mr. DEPUY. Ms. Norton, I did not follow that procedure so I’m 

not in a position to respond to your question. 

Mr. NATHAN. I can answer that. You are correct, Congresswoman 

Norton, the procedures were followed. 

Ms. NORTON. Thank you, Mr. Nathan. 

Mr. Netter, here, we really get into parsing legislation, but that’s 

what’s necessary here, I believe. I’m looking first at 603(a) of the 

Home Rule Act, which apparently everyone agrees the District may 

not amend. And it provides—and here I’m quoting—nothing in this 

act shall be construed as making any change of existing law—‘‘existing law’’ it says—operative words as far as I’m concerned. And, 

of course, it’s referring to the budget. When the Home Rule Act was 

passed in 1973, existing law required Congress to approve the 

budget. Why then doesn’t 603(a) prevent the District from enacting 

the Local Budget Autonomy Act? 

Mr. NETTER. It doesn’t, Congresswoman Norton. I think it is important to recognize also how section 603(a) came to be. There was 

another proposed bill from Congressman Nelson that had a provision that became 603(a), but it was worded differently. It said: Notwithstanding any other provision of law, unless specifically authorized or directed by the Congress, there shall be no change made in 

existing law. 

Ms. NORTON. No change whatsoever. 

Mr. NETTER. Right. Unless Congress affirmatively made a 

change. And that was revised in section 603(a) to say this act, the 

Home Rule Act of 1973, was not making any change, and that’s 

why section 603(a) doesn’t limit the future authority. 

Ms. NORTON. That’s very important what you just said. This bill 

is a compromise bill, so we have right there two different versions 

and then the final version. 

Mr. Netter, all agree as well that section 602(a)(3) of the Home 

Rule Act may not be amended by the District. Now this is the provision that prohibits the District from passing laws that concern— 

and here are the operative words—the functions or property of the 

United States. Now the Home Rule Act, as passed in 1973, provided that the President shall transmit the District’s budget to the 

Congress for approval. The Local Budget Act removes the President 

and the Congress from the budget process. That’s its point. Please 

explain whether the Budget Autonomy Act violates the provision 

602(3)—(a)(3), I’m sorry. 


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Mr. NETTER. It doesn’t, Congresswoman Norton. And there is a 

line of binding precedents from the D.C. Court of Appeals that 

dates back to 1982 for the case called District of Columbia v. Greater Washington Central Labor Council. And that line of cases explains that, in section 602(a)(3), Congress was limiting the District’s authority to exercise Congress’ role as the national government but was not limiting the District’s role to exercise functions 

that Congress might otherwise exercise as the local government. A 

series of cases have rejected the theory that 602(a)(3) limits which 

actors are discharging those obligations. It doesn’t matter if an obligation is moved from a Federal official to a local official. The 

question is whether the underlying act would be pursued under 

Congress’ national legislative authority or its Article I, Section 8, 

authority to legislate as a local legislature for the District. There’s 

no argument that I can contemplate through which the District 

would be allowed to raise taxes under its local legislative authority 

but could not spend that money under its local legislative authority. 

Ms. NORTON. Thank you very much. 

Mr. Chairman, I’ve exceeded my time. Do you have questions? 

Mr. MEADOWS. Yes. I mean, I want to be generous. 

Ms. NORTH. I’d appreciate it. 

Mr. MEADOWS. If you have one followup question? 

Ms. NORTON. I do have a—my staffer reminds me it is not a followup question. It’s a question to the GAO. 

Mr. MEADOWS. Okay. All right. Why don’t we do a very brief second round? And that way, I’ll be courteous to the gentlewoman, as 

any good Member from North Carolina should be. 

Ms. NORTON. Any good Southern gentleman. 

Mr. MEADOWS. Yeah. All right. I didn’t want to go there, but— 

Mr. Netter, so do you concur with Ms. Holmes Norton’s premise 

that 602 and 603 and 601 are unamendable? 

Mr. NETTER. I do agree with that, yes. 

Mr. MEADOWS. All right. So your premise under the Budget Autonomy Act is that you amended what? 

Mr. NETTER. Section 446 of the charter was what was amended 

by the Budget Autonomy Act. I think it is important to note that 

if it were true that section 603(a) says that the Home Rule Act—— 

Mr. MEADOWS. I don’t want to relitigate it. I’m just saying—for 

the record, you’re saying that 601, 602, and 603 are unamendable. 

Mr. NETTER. They are unamendable. They remain in force, and 

they are being honored by the Budget Autonomy Act, yes. 

Mr. MEADOWS. That’s all I want to know, because I think our interpretation thereof and my reading of it and your reading and the 

interpretation are vastly different based on the context. And so it’s 

real interesting because you talked about this context that you 

went back. At what point or how many different documents did you 

ignore that talked about the appropriation authority wanting to be 

retained in Congress? How many different pieces of evidence did 

you ignore? 

Mr. NETTER. We didn’t ignore a single piece of evidence. 

Mr. MEADOWS. How many of those did you leave out of your argument? 

Mr. NETTER. Oh, none of them at all. I can tell you—— 


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Mr. MEADOWS. You’re under oath. 

Mr. NETTER. I am, yes. 

Mr. MEADOWS. Because I’ve looked at your argument, and there 

are a whole lot of information out there that seems to not have 

been included in your argument. 

Mr. NETTER. I disagree with that. It is—certainly, our position is 

that Congress made a compromise—— 

Mr. MEADOWS. So your testimony here today is that you found 

no substantial reason to believe that it was the intent of Congress 

to keep the appropriations process uniquely with Congress. That’s 

your sworn testimony? 

Mr. NETTER. That’s not how I would state it. 

Mr. MEADOWS. Well, that’s my question. Is that your sworn testimony, no? 

Mr. NETTER. No. My sworn testimony is that Congress in 1973 

was leaving the budget process in place, but in doing so, Congress 

did not create any impediments to the District proposing—— 

Mr. MEADOWS. Mr. Nathan, would you agree with that? 

Mr. NATHAN. I do not agree with that, and it violates common 

sense. This law would not have passed but for Congress retaining 

the power of appropriations and the budget control and not having 

the District have budget autonomy. If those people who voted for 

that insisted on that believe that the moment that the ink was dry 

on the President’s signature that the council could change that, 

they never would have voted for this in the first place. And that’s 

obvious by the 40 years of practice in the District and the repeated 

efforts by the representatives quite appropriately to get Congress 

to grant budget autonomy. If they had that power and that’s what 

Congress thought in passing the law, they would never have sought 

the authority of Congress. They would have just gone to the council. 

Mr. MEADOWS. So, Mr. Netter, how do you reconcile that? How 

do you reconcile that the gentlewoman to my right has asked for 

budget autonomy for Congress to act on budget autonomy for the 

District. Other members have asked that. Why would they be asking that if the District had the ability all along? How do you reconcile those two? 

Mr. NETTER. Well, I disagree that the District had the authority 

all along because of the charter problem that we discussed earlier, 

which is to say that, in 1973, both Chambers of Congress needed 

to affirmatively approve an amendment. So this issue only arose 

after Congress changed the process in the 1980s. And the reason—— 

Mr. MEADOWS. So why—she’s asked me for it since the—since 

that particular—why would she have done that if they had the 

right to do it? Is it just, all of a sudden, they found this right that 

they’ve been ignoring for 40 years? 

Mr. NETTER. Well, it’s true that there was not a single amendment to the charter from 1980—— 

Mr. MEADOWS. Sir, that defies common sense. It just defies—and, 

Mr. Netter, with all due respect, it defies common sense. So let me 

finish with this, and then—— 

Mr. MENDELSON. Mr. Chairman? 

Mr. MEADOWS. Hold on, just one second. 


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Mr. Nathan, are you aware of any Federal actions that are taking place as it relates currently to the Budget Autonomy Act. Is 

there any litigation that is pending? 

Mr. NATHAN. There is a lawsuit in Federal court. It is actually 

before Judge Sullivan asking to invalidate the Budget Autonomy 

Act. There is a very substantial question in that litigation whether 

the plaintiff has standing to raise this claim, and that has not yet 

been decided. But my concern—and I’ve explained it to Mr. 

Mendelson and the council before—is that if this takes effect and 

moneys are spent without congressional appropriation, those who 

are adversely affected by such expenditures will have standing to 

challenge the statute. And if they do, then—and if they bring it 

in—any court they bring it in, but certainly if they bring it in Federal court, there will be no effect of the superior court’s decision, 

and that judge will decide this matter afresh and will have the 

opinion of Judge Sullivan and may, in fact, be assigned to Judge 

Sullivan to render a decision on that, and that is why the actions 

of the District would be in jeopardy? 

Mr. MEADOWS. The chair recognizes the gentlewoman Ms. Eleanor Holmes Norton for another 5 minutes. 

Ms. NORTON. Thank you, Mr. Chairman. 

I think Mr. Mendelson wanted to comment on—and I know you 

didn’t mean to cut him off, but your time had expired. So I would 

like to give him some of my time to say why is it—why didn’t— 

you know, Mr. Nathan said you should have raised this from the 

get-go. How come you’re raising it now and prior counsels haven’t 

raised it? 

Mr. MENDELSON. Thank you, Congresswoman. 

Let me try to struggle with this briefly. You know, from time to 

time, particularly in the area of I’ll say civil rights and voting 

rights, there are new theories that emerge. There were some advocates who came to me in 2012, and they said: You know, we think 

actually that the council has the authority to amend the Home 

Rule Act in this area. 

I was rather dubious at first. But this was a theory, a legal theory that had not been realized or argued or advanced prior to that. 

And this happens all the time if you look over the history of this 

country and the way arguments evolve on different issues, particularly issues involving civil rights or voting rights. So it was a new 

theory. We argued it. And, ultimately, we won in court. 

The other thing I wanted to say is that a piece I think is missing—and I say this from a lay perspective. I’m not an attorney. I’m 

somewhat familiar with the legal arguments and minutia of the 

legal arguments. But much of the debate here has been stuck in 

1973. And in 1973, because of the compromise, it was clear that it 

was the intent of the majority of the Members of Congress that the 

District would not be able to adopt its own budget. But Congress 

also adopted a Home Rule Act that had an amendment process. 

That amendment process in 1973 was pretty locked tight. So if you 

were a Southern Democrat who did not want the District to have 

budget autonomy—and that was where the compromise was—you 

could look at the amendment process that was included in the bill 

and be assured that it was going to be over his dead body that we 

would get budget autonomy. 


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But that amendment process changed. It changed through some 

acts of Congress—and—it changed through some acts of Congress 

and so that what have been locked tight, requiring affirmative act 

by Congress, was now a different process. And it’s because of those 

changes that we were able to advance this amendment to the Home 

Rule Act. We have amended the Home Rule Act in recent years in 

other ways. The elected attorney general is an amendment that initiated from the council and went through the congressional review 

process, not an affirmative process by the Congress but a passive 

review. That was an amendment to the Home Rule Act. 

We believe, and Mr. Netter is better able than I am to articulate 

this, that the changes in the amendment process subsequent to 

1973 are what allowed us to amend the Home Rule Act with regard 

to our passing legislation, which is the budget. 

Ms. NORTON. Mr. Mendelson, I’m very glad you made that argument. It is so clear. You barely got Home Rule by the skin of your 

teeth. Now you start out amending the darn thing. 

I have been waiting for somebody here to cite the amendments, 

the charter amendments that have, in fact, passed. The reason people are stuck in 1973, of course, is they are stuck in a period 

where, of course, our city got Home Rule in the first place in a 

Democratic Congress with profound racial overtones, with people 

who didn’t want us to have it, because at that time, the majority 

of those who lived in the District of Columbia were African American, so they are going to start off by challenging the Home Rule 

Act. Give me a break. 

Let me indicate the best argument I can make, Mr. Nathan, for 

not immediately challenging or even, in some of the ensuing years, 

is when the 14th Amendment of the United States was applied to 

women, it was not until the 1970s, not for a moment do I believe 

that women were not, in fact, subject to the 14th Amendment that 

provides that they are indeed fully equal when it comes to State 

action, until the 1970s when Ruth Bader Ginsburg argued that 

when she was a counsel for the ACLU. So I don’t think you ever 

ask: What’s wrong were you people? If you thought you were entitled to something all along, why didn’t you just do it then? 

Look, I want to ask you, Ms. Emmanuelli Perez, about her view, 

because she has said that the Budget Autonomy Act violates the 

Antideficiency Act. And I have indicated I thought Mr. Mendelson 

was entirely within his right with the only outstanding court decision protecting the District. And I don’t think she said otherwise, 

but she certainly has said that the budget autonomy—that it violates not only the Federal Antideficiency Act but the Budget and 

Accounting Act, which apply both to the District of Columbia and, 

of course, to the Federal Government. 

Now I’d like Mr. Netter’s view—I would just like to say what you 

have said that you have said that the Antideficiency Act and the 

budget and accounting act were not violated. So, Mr. Netter, can 

I ask you, does the Antideficiency Act specify which—whether—I 

would like to get this out; this is important to clarify and especially 

since it is a GAO—whether Congress or the District must authorize 

the obligation or expenditure of District local funds? Does it expressly say which one, or does it mention either one? 


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Mr. MEADOWS. The gentlewoman’s time has expired so you can 

both very briefly—they have called votes—respond to that. 

Ms. PEREZ. Yes. The Antideficiency Act refers to an appropriation. When you look at the longstanding history of that act, it’s always been applied to congressional appropriations. 

Ms. NORTON. But it doesn’t say so, does it? 

Ms. PEREZ. It doesn’t say congressional appropriation. It is enacted by Congress, and it is referring to Federal officials as well 

as District officials who have always relied on Federal appropriations by Congress. 

Ms. NORTON. It does not say expressly which of those bodies, the 

District or the Congress. That’s only—when you go into statutory 

authority, look first to see what is said. Then you go to see what 

was meant. 

Ms. PEREZ. Yes, ma’am. It does not say an appropriation enacted 

by Congress, but that is how it has always been interpreted. It 

comes out of Congress—— 

Ms. NORTON. That’s what I want to hear. 

Mr. MEADOWS. Mr. Netter 30 seconds. 

Mr. NETTER. I appreciate that. Let me read into the record what 

the statute says. It says: No officer of the District may authorize 

or make an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation. 

The District of Columbia government possesses the District of 

Columbia general fund under section 450 of the Home Rule Act. 

That money does not pass through the Treasury, and it is not subject to Congress’ constitutional power of the purse. The only question is whether the amount was made available. And that becomes 

a circular question. If the Home Rule Act is otherwise valid, as the 

superior court has found that it is, then all the requirements of the 

Antideficiency Act have been satisfied. 

Mr. MEADOWS. All right. I want to thank all of the witnesses. 

Mr. DePuy, do you agree with Mr. Nathan’s characterization of 

the intent of Congress, yes or no? 

Mr. DEPUY. Yes. 

Mr. MEADOWS. Mr. Mendelson, in your response, it was clear 

that you said the original intent of Congress was to retain control 

of the appropriations process in your previous answer. Is that correct? 

Mr. MENDELSON. Yes, in 1973. 

Mr. MEADOWS. So I want to thank all of you for this illuminating 

hearing, and obviously, it is one that will continue to go on as we 

address this issue. I also want to thank the audience because I 

know that this is something of great passion and great concern to 

so many, and you have conducted yourselves in a very congenial 

manner. I want to thank you for that. 

If there is no further business before this subcommittee, the committee stands adjourned. 

[Whereupon, at 3:52 p.m., the subcommittee was adjourned.] 


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