Evening star. [volume] (Washington, D.C.) 1854-1972, 1948-02-06
Defeating Legislative Authority

The first objective of the Auchincloss
home rule bill, as set forth In its report,
is to relieve Congress Of the detail OF local
government
To accomplish such relief, Congress must
delegate legislative authority to the elected
city council Otherwise, Congress would
not be meeting it's first objective At the
same time, Congress must retain Its con-
troll over the seat of Government assigned
to it by the Constitution.
The extent of congressional power, under
the Constitution, to delegate legislative
authority is cloudy. 1t is cloudy because
Of these developments:
Before 1871, there was no single govern
ment for the District to which Congress
could delegate general legislative powers.
In 1871 a single government over the
District was established for the first time.
Congress delegated to this government Ia
territorial form of governmen) the full
legislative authority possessed by terrific
ries. In cases at law arising under the
territorial government, however, the Dis
trict courts took the view that Congress
could delegate to q local government only
the powers that State normally delegates
to a municipality. The Supreme Court
never passed on the precise question in
yolved 1t remains unclarified.
But to delegate to council only the
powers ordinarily delegated by State to q
city would leave Congress still burdened
with legislative details of Importance only
to the people of the District That would
defeat the first objective of the home rule
bill And there is a possibility that the
Supreme Court would hold now that
Congress can delegate to council the
full legislative powers delegated to
territories.
In the article by DR.. Charles A. Beard,
appearing elsewhere on this page, he
refers to the endless litigation over the
cloudy subject of delegation Of legislative
powers which might be anticipated. Other
authorities, such as John w. Davis, Arthur
T. Vanderbilt, Walter F. Dodd and Edward
s. CorWin, have seen no great difficulty in
the delegation of legislative authority, with
Congress retaining ultimate control Will
liam D. Mitchell, former solicitor general
and Vernon West, corporation counsel, are
skeptical not only as regards delegation OF
legislative authority but as to the device
proposed by the home rule bill In approx
Ing council-initiated legislation.
This device, as explained before, gives
the council power to initiate legislation
Congress and the President would retain a
veto power The veto would be exercised
by affirmative action of Congress. But
approval would be expressed by the mega
tive process of failing to veto. Mr. Mitchell
and Mr. West argue that this is a question
able method Of exercising the legislative
power, and doubt its validity.
Chairman Auchincloss is now indicating
his own doubt. He suggests that Congress
could resolve such doubt by affirmative
approval of legislation initiated by the
council But this 1t would seem, leaves us
about where we started. For, If Congress
must approve by its votes every legislative
act of the council, then Congress will not
succeed in doing what it sets out to do
relieve itself of the detail of local gov
eminent.
The dilemma is characteristic of home
rule plans. But it would seem preferable,
to The Star, to delegate legislative author
ity to the council, retaining, of course, q
power of congressional veto The only way
the question, a very important one, will
ever be resolved is through court interpre-
tation of what the Constitution means
The bill, as written, contains clause to
the effect that if one provision is held
invalid, others are not affected. An I'M
favorable decision in the courts could be
rernedied through new legislation, with
ant INC attinC the while works