District of Columbia: Issues in the 114th Congress
Released: 2015-07-07T00:00:00

In the coming weeks and months the 114 th Congress will debate a number of funding, governance, and constitutional issues affecting the District of Columbia, including budget and legislative autonomy, voting representation in the national legislature, federal appropriations, and congressionally supported education initiatives. In addition, Congress may consider measures intended to void or otherwise modify acts and initiatives approved by District citizens and their elected representatives. The mechanisms available to Congress in carrying out its oversight of District affairs include resolutions of disapproval, riders on appropriation acts, and stand-alone legislative proposals. Acts passed by the District of Columbia Council or approved by District voters that may be subject to congressional scrutiny during the 114 th Congress include

a repeal of the Armstrong Amendment , a provision in the District's Human Rights Act that exempted religiously affiliated educational institutions from the requirement to not discriminate based on sexual orientation; provisions of the newly passed District of Columbia Reproductive Health Non-Discrimination Amendment Act of 2014 (RHNDAA); the act, as passed by the Council, mandates that all employers in the District, religiously affiliated or otherwise, protect the "reproductive health rights" of their employees, even when the employer may have a religious or moral objection to services like abortion; a voter-approved initiative (Initiative 71) that decriminalizes possession and cultivation of small quantities of marijuana for personal use.

In addition, Congress may consider a number of Member-initiated measures and oversight activities related to governance of the District of Columbia, including issues linked to home rule, municipal policing powers, and gun rights.

This report discusses a number of District of Columbia issues and proposals that may be considered during the 114 th Congress, including legislative and budget autonomy, marijuana decriminalization, gun regulation, and issues of religious freedom and nondiscrimination. Each topic covered in this report includes a discussion of current legislative proposals and relevant policy questions.

Background

Congress's Constitutional Authority

The United States Constitution gives Congress exclusive authority over the legislative affairs of the District of Columbia. Congress has exercised its constitutional authority in a number of ways, including imposing height limitation on buildings in the District in 1910 with the passage of the Height of Buildings Act. In 1973, Congress passed the District of Columbia Self-Government and Governmental Reorganization Act (Home Rule Act), granting the city's residents limited home rule. The act allowed for the popular election of a mayor and city council and authorized them to legislate and manage the city's affairs. It also established a budget and legislative review process allowing Congress to disapprove the implementation of any legislative measure passed by the city's elected leaders and to review the city's annual budget.

Despite the passage of home rule legislation, Congress has continued to play an active role in District of Columbia governance. For example, in 1995 Congress passed legislation

1. encouraging the creation of charter schools; 2. authorizing the takeover of the management of city services and finances from the elected government leaders to a five-member presidentially appointed financial control board; and 3. creating the independent Office of the Chief Financial Officer.

In 1997, with the passage of the National Capital Revitalization and Self-Government Improvement Act, Congress transferred a number of state-like functions from the District to the federal government in an effort to address a fiscal and management crisis confronting the city. The 1997 act transferred responsibility for funding prisons and courts and unfunded pension liabilities for the city's judges, police, firefighters, and teachers to the federal government. It also increased the share of the District's Medicaid cost borne by the federal government from 50% to 70%.

In addition, up until 2010, Congress included provisions in annual appropriations acts for the District of Columbia that prohibited or restricted the use of public (District and federal) funds to support the city's efforts to gain voting representation in Congress. Another set of provisions additionally prohibited the District from providing any assistance to implement or fund particular initiatives and referenda approved by the city's voters or legislation passed by the city council. Congress also has enacted legislation without the consent of District voters, including authorizing the establishment of public charter schools and school vouchers.

Congressional Review and Oversight10

Congress may exercise its authority over the legislative affairs of the District through one of three means:

a resolution of disapproval nullifying an act of the District of Columbia Council as outlined in the District's Home Rule Act; the use of riders attached to the District's operating budget which must be approved as part of the appropriations process; and authorizing acts introduced as stand-alone measures or attached to other legislation.

Resolutions of Disapproval of Acts of the Council

The District of Columbia Self-Government and Governmental Reorganization Act, as amended (also known as the "Home Rule Act"), includes provisions establishing a special parliamentary mechanism by which Congress can disapprove laws enacted by the District of Columbia.

Under Section 602(c) of the Home Rule Act, as amended, with few exceptions, the chairman of the District of Columbia Council (Council) must transmit a copy of each act passed by the Council and signed by the mayor, as well as enactments stemming from ballot initiatives or referendum, to the Speaker of the House of Representatives and the President of the Senate. (This transmission may occur when the law is enacted or at a later point.) The law in question will take effect upon the expiration of a specified "layover" (congressional review) period following the date the law was transmitted to Congress unless it is first overturned by a joint resolution of disapproval. The act establishes special "fast track" procedures that the House and Senate might use to consider such a disapproval resolution.

The length of the congressional layover period for District of Columbia laws differs based on the type of law the District has enacted. Any law codified in Title 22 (Criminal Offenses and Penalties), 23 (Criminal Procedure), or 24 (Prisoners and Their Treatment) of the District of Columbia Code must lie over for 60 days before going into force. All other District laws become effective upon the expiration of a layover/congressional review period of 30 calendar days or upon the date prescribed by the act itself, whichever is later. In calculating this 30-calendar-day layover period, Saturdays, Sundays, federal holidays, and days on which neither the House nor the Senate is in session because of an adjournment sine die or pursuant to an adjournment resolution are excluded.

Under the Home Rule Act, any Member of the House or Senate may introduce a qualifying joint resolution disapproving a law of the District of Columbia at any time after the law has been submitted to Congress and before the expiration of the layover periods described above. There is no limit on the number of resolutions that may be introduced. All joint resolutions, when introduced, are referred to the Committee on Oversight and Government Reform in the House and the Committee on Homeland Security and Governmental Affairs in the Senate.

Once a joint disapproval resolution is referred, a committee may choose to mark it up but may not report amendments to it. For those joint resolutions aimed at District of Columbia laws codified in the District of Columbia criminal code, a discharge mechanism is potentially available. For such acts, if a committee to which a disapproval resolution has been referred has not reported it within 20 calendar days after its introduction, a privileged motion to discharge the committee from the further consideration of it or any joint resolution aimed at the same District of Columbia law is in order. The motion to discharge is debatable for one hour, equally divided, and can be made only by an individual favoring the legislation. The motion is no longer available after the committee has reported a disapproval resolution with respect to the same District law. For enactments not affecting the District of Columbia criminal code, the committees would presumably have to report a joint resolution for it to reach the calendar.

In both the House and Senate, once a committee has reported or (within the limits described above) been discharged from further consideration of a joint resolution, a non-debatable motion to proceed to consider the measure is in order and may be made by any Member. This motion to proceed may be made even if a previous motion to the same effect has been defeated. The motion to proceed may not be amended, nor may a vote on it be reconsidered. A motion to postpone the motion to proceed is in order but is not debatable. Should the House or Senate agree to consider by simple majority vote, the joint resolution would be pending before the respective chamber and debatable for up to 10 hours, equally divided. A non-debatable motion to limit debate below 10 hours is in order. The joint disapproval resolution may not be amended or recommitted, and a vote thereon may not be reconsidered. All appeals from decisions of the chair made during consideration of the joint resolution are to be decided without debate. Passage of a joint resolution is by simple majority vote. It appears that passage and presentment of a joint resolution of disapproval to the President must occur before the expiration of the layover period in order to invalidate that District law.

Perhaps because the Home Rule Act mechanism was originally structured as a one- or two-house legislative veto, it does not include separate parliamentary procedures governing consideration of a joint resolution of approval or disapproval after its initial passage in its chamber of origin.

Should a joint resolution of approval or disapproval pass the House and Senate but be vetoed by the President, any attempt to override that veto would take place under normal House and Senate procedures. In the Senate, vetoed measures are privileged for consideration (as they are in the House) but are fully debatable and thus potentially subject to a filibuster and the cloture process.

It is worth noting that the Home Rule Act disapproval procedure has been used infrequently, and should the House or Senate choose to consider a disapproval resolution under its terms, the chambers will likely have to interpret for themselves how some of its facets operate in current parliamentary practice, a decision each will no doubt make in close consultation with that chamber's Parliamentarian.

It bears further mention that the Home Rule Act disapproval procedure is one expedited parliamentary method that Congress might use to invalidate a proposed District law. It is not, however, the only way Congress might undertake such disapproval. In fact, although Congress has successfully used the special parliamentary disapproval mechanisms of the Home Rule Act on three occasions since passage of the act in the early 1970s, it has far more frequently during this period influenced the actions of the District of Columbia through the regular lawmaking process, including the appropriations process.

The Use of Appropriation Riders to Nullify Legislative Acts of the District

The resolution of disapproval procedure outlined in the Home Rule Act is one method that Congress has used to nullify a proposed District of Columbia law. It is not the only method by which Congress may act to stop the implementation of a District of Columbia law. As noted above, Congress has used the procedure outlined in the Home Rule Act successfully only three times since the advent of home rule. Far more frequently, during this period, Congress has used the appropriation process as a means of nullifying a District of Columbia act, including referendums and initiatives. The following table is a selected list of general provisions included in past District of Columbia appropriations acts that nullified or void legislative acts of the District of Columbia.

Enactment of Authorizing Legislation to Initiate New Policies or Overturn Existing Law

Congress also may exercise its constitutional authority over the affairs of the District of Columbia through the regular lawmaking process. For instance, the District of Columbia Financial Responsibility and Management Assistance Act, P.L. 104-8 , and the National Capital Revitalization and Self-Government Act of 1997, Title XI of P.L. 105-33 , are examples of Congress taking proactive measures to address the fiscal and management crisis facing the District. P.L. 104-8 created the financial control board and the Office of the Chief Financial Officer (CFO) and charged them with returning the District to financial solvency following a fiscal and management crisis that gripped the city during the 1990s. P.L. 105-33 continued congressional efforts to improve the District's finances by transferring a number of state-related functions to the federal government, including prisons, court operations, and offender servicers. The act also increased the federal contribution to Medicare from 50% to 70%. Congress has also enacted education reform legislation with minimal or no input from the citizens of the District of Columbia or their elected representatives. For instance, Congress passed both a public charter school initiative in 1995 and a private school voucher program in 2004 over the objections of the District's elected officials.

Current Legislative Proposal (H.R. 730)

Legislative Autonomy

On February 4, 2015, District of Columbia Delegate to Congress Eleanor Holmes Norton introduced the District of Columbia Paperwork Reduction Act, H.R. 730 . The bill would amend the District's home rule charter by eliminating the current requirement that all legislation passed by the District of Columbia Council, including referendums and initiatives approved by District voters, be subject to a congressional review/layover period of 30 days or 60 days. The bill also would change the procedures for amending the District's home rule charter. It would eliminate the current requirement that provides for a 35-day charter review period for Congress and it would eliminate current rules of the House and Senate governing the discharge of a resolution of disapproval discussed previously in this report. The bill, if passed, would significantly reduce the role played by Congress in the District's legislative affairs.

Policy Questions

The Constitution grants to Congress power over the legislative affairs of the District. In 1973, Congress in exercising that power granted the citizens of the District limited home rule. However, Congress retained its constitutional power to review, modify, or enact laws governing the District of Columbia. In the name of home rule, when should Congress defer to local officials, in addressing issues unique to the District of Columbia? Should Congress take a more active role in carrying out its oversight responsibility? If Congress eliminates the congressional review period, what mechanism, if any, should it put in place in order to carry out its oversight responsibilities?

Budget Autonomy

Under the District's home rule charter, all District of Columbia spending must be reviewed and approved by Congress through the federal appropriations process, without regard for the source of revenue supporting such spending. District leaders often have complained that frequent delays in the appropriations process that lead to the approval of the District's annual budget well after the start of the District's fiscal year have become routine. These delays hinder the ability of District officials to manage the city's financial affairs and negatively affect the delivery of public services. During the past 18 years, as documented in Table 2 , FY1997 was the only year for which the District of Columbia appropriations act was enacted before the start of the fiscal year on October 1. To mitigate the impact of congressional delays in the approval of the District's appropriation before the beginning of a fiscal year, Congress has routinely included language in continuing budget resolutions allowing the District to expend local funds on programs and activities included in its General Fund budget.

In addition to the budget autonomy proposal introduced by the District's Delegate to Congress, District officials were engaged in a dispute over the legality of a voter-approved referendum that purports to have amended the District's home rule charter by eliminating charter provisions that mandate congressional review of acts by the District, including proposed charter amendments by referendums and initiatives.

The mayor's FY2016 budget request, which was modified and approved by the Council on May 27, 2015, includes provisions that would provide the District with some level of autonomy over locally raised revenues. Specifically, the budget request would

allow the District to decouple its fiscal year from the federal fiscal year, permitting the District to establish when its local fiscal year would start; permit District officials to obligate and expend local funds upon enactment by the District of its local annual budget; and grant the District the authority to spend local funds if Congress does not enact a federal appropriation authorizing the expenditure of local funds before the start of the District's fiscal year.

In addition, the District Delegate to Congress has introduced legislation, H.R. 552 , a bill that would grant the District budget autonomy over locally raised revenues by eliminating the requirement for congressional approval of the District's General Fund budget. This bill is one in a line of budget autonomy bills that have been introduced in successive Congresses starting in 1981 when then District of Columbia Delegate to Congress Walter Fauntroy introduced a budget autonomy measure.

In addition to legislative proposals before Congress, in 2014 the District of Columbia Council was involved in a legal dispute with then-Mayor Vincent Gray and the Chief Financial Officer, Jeffrey DeWitt, regarding a budget autonomy amendment to the District's home rule charter. On December 19, 2012, the District of Columbia Council passed the Local Budget Autonomy Act of 2012, B19-993. The mayor signed the measure as A19-0632, on January 18, 2013. Subject to voter approval through the referendum process, the bill purportedly amended the District's home rule charter by eliminating the requirement for congressional approval of the District of Columbia budget as part of the federal appropriations process. Instead, the charter amendment would subject the District local budget (General Fund Budget) to a 30-day congressional review/layover period like all other laws passed by the District. Despite objections raised by the District's Attorney General in a letter, dated January 4, 2013, the District of Board of Elections placed the proposed charter amendment on an April 23, 2013, ballot. District of Columbia voters approved the local budget autonomy charter amendment with 83% of the vote in support of the amendment.

Although supportive of budget autonomy, the mayor informed the Council, in an April 11, 2014, letter, of his intent not to enforce the law based on the opinion of the District's Attorney General that the charter amendment was unlawful. According to the mayor, the opinion of the District's Attorney General is legally "binding on Executive branch of the District government absent a controlling court opinion to the contrary." The essential legal objection to the proposed charter amendment is captured in this excerpt from the Attorney General's letter to the District's Board of Elections urging the Board of Elections not to place the referendum of the ballot:

…, the OAG has serious reservations about the legality of the amendment, whether it would be sustained if challenged in court and most pertinently, whether the Board has the authority to place this amendment on a ballot referendum in light of the clear prohibition under Section 303(d) of the District of Columbia Home Rule Act ("Home Rule Act"), approved December 24, 1973, 87 Stat. 790, P.L. 93-198 , D.C. Code §1-203.03(d) (2012 Supp.). That provision of governing law provides in relevant part that "the [Charter] amending procedure may not be used to enact any law or affect any law with respect to which the Council may not enact under the limitations specified in §1-206.01 to §1-206.03 . (Emphasis added). The statute is phrased in clear mandatory terms: a proposed amendment is precluded by law from going on the ballot through the Charter-amending procedure of Section 303 if the proposed amendment would "enact any law or affect any law with respect to which the Council may not enact ... under the limitation specified in "Sections 206.01-03. For reasons we detail below it is precisely these limitations, reserving to Congress, among other things, the authority to change the laws governing the role played by Congress and the President in the District's budget that in the considered judgment of this office, preclude using the charter amendment procedures, including the placement on a ballot for the electorate for the proposed amendment. Likewise, it is our view that under those express limitations, Congress or a court reviewing the merits of the legal issue would find the amendment to be outside the scope of the Charter amending process in Section 303 and also contrary to other federal laws, those found in Title 31 of the U.S. Code.

These objections were reiterated and expanded upon in an April 8, 2014 legal analysis by the Office of Attorney General. The GAO analysis articulated the following objections to the proposed charter amendment:

The Act is null and void because the Council exceeded its authority in enacting it and because it violates federal law .

The act violates the limitations of Section 602(a)(3) because it changes the functions of the United States and because it is not restricted in its application exclusively or to the District.

The Act violates the limitations of Section 603(a) because it changes the longstanding roles and procedures of Congress, the President, and other federal entities in the formation of the District's total budget.

The Act violates the limitations of Section 603(e) by using the ratification process to establish local budget autonomy.

The legal arguments advanced in support of the Act are unpersuasive.

A Government Accountability Office (GAO) legal analysis also raised the same objection and questioned the legal standing of the proposed charter amendment.

On April 17, 2014, the District of Columbia Council filed a suit in the United States District Court for the District of Columbia to compel the mayor to execute the charter amendment changes. On May 19, 2014, Judge Emmet G. Sullivan of the United States District Court for the District of Columbia issued an opinion concluding that the Local Budget Autonomy Act was unlawful and that District officials were permanently enjoined from enforcing it. The Council appealed the decision and on October 18, 2014, presented its case before a three-judge panel of the United States Court of Appeals for the District of Columbia. Before the panel issued a ruling, a new mayor was elected, Muriel Bowser, who reversed Mayor Gray's decision not to enforce the Budget Autonomy Act. On March 23, 2015, a Suggestion of Mootness and Motion to Dismiss was filed with United States Court of Appeals for the District of Columbia on behalf of the newly elected mayor. The motion claimed that since there was no dispute or disagreement between the Council and the newly elected mayor, the judgment rendered by the District Court for the District of Columbia in April 2014 should be vacated, the appeal dismissed, and the case remanded to the D.C. Superior Court. On May 27, 2015, the United States Court of Appeals for the District of Columbia granted the motion for dismissal of the case and sent it back to the District of Columbia Superior Court. Despite all that has transpired, the issue of budget autonomy remains an open question.

Although the Court of Appeals has ruled on the dismissal of the appeal, there is still an unresolved dispute between the Council and the District's Chief Financial Officer (CFO), who was also a party to the initial case challenging the legality of the budget autonomy act approved by the Council and who is being represented by the District of Columbia Office of the Attorney General (OAG). In a joint statement on the budget autonomy decision, issued on May 27, 2015, the CFO and AG articulated the following position:

The D.C. Circuit's decision in the Budget Autonomy Act case did not validate the legislation. In fact, the appellate court did not address the legality of the Budget Autonomy Act. Because the legality of the Act remains in doubt, the Office of the Chief Financial Officer and the Office of the Attorney General are exploring expedited legal options to obtain judicial clarity on this issue.

Current Legislative Proposal (H.R. 552)

On January 13, 2015, Delegate Norton introduced the District of Columbia Budget Autonomy Act, H.R. 552 . The bill, which was referred to the House Committee on Oversight and Government Reform, would amend the District of Columbia Home Rule Act by eliminating all requirements relating to congressional review and approval of the District's general fund budget, short-term borrowing, financial management, and accountability. The act also would grant the District the power to develop and institute its own budget process and rules governing the borrowing and financial management of District funds. No hearing or markup has been scheduled to consider the bill.

In addition to H.R. 552 , the Appropriations Committee, during its markup of the District's appropriation act for FY2016, may include language in the appropriations bill addressing the issue. The committee could act to incorporate language in the general provisions of the bill that would grant or deny the District voting autonomy.

Policy Questions

The long-debated issue of limited budget autonomy for the District of Columbia may soon be decided by the courts or Congress. Although there is support for budget autonomy among majority and minority leadership in the House and Senate, as well as the Obama Administration, Congress has not provided a permanent fix to address the issue. Instead, during the last two appropriations cycles, Congress has included language in appropriation acts that approved the District's local budget before the beginning of the fiscal year.

Congress did not move to overturn the voter-approved referendum on budget autonomy during the 35-day congressional review after the measure was transmitted to Congress in 2013. As it considers what actions to take during this session, Congress's deliberation may be complicated by a court decision regarding the validity of a citizen-approved referendum that amended the District's home rule charter. The case was recently remanded to the District's Superior Court.

Even though some Members of Congress may be sympathetic to the idea of budget autonomy and home rule, the issue of by what means can the status quo be changed is an important one. Should the District government continue to pursue a remedy through the courts or should Congress take action to settle the matter?

Voting Representation in Congress28

Voting representation in Congress for the citizens of the District of Columbia is an issue that dates back to the creation of the federal district in 1790, and its subsequent occupation as the seat of the national government in 1800. Since the passage of the District of Columbia Delegate Act in 1971, District residents have been able to elect a non-voting Delegate to the House of Representatives, but have unsuccessfully sought full voting representation in the national legislature.

At the heart of the debate on the question of voting representation for residents of the District of Columbia is the question of how constitutional dictates on the political status of the District are to be balanced with the principles of representative democracy. The U.S. Constitution confers upon Congress exclusive legislative control of the seat of the federal government. Conversely, among the principles on which the United States was founded is that of governance with the consent of the governed—that is, participation of the citizenry in the governing process. This principle is captured in the slogan "no taxation without representation," a rallying cry slogan for the nation in its war of independence that has been embraced by many citizens of the District of Columbia.

Strict readers of the Constitution see little merit and several hurdles to granting District residents voting representation in Congress. They point to constitutional provisions granting voting representation in the House and Senate only to states and granting Congress "Exclusive Legislation in all Cases whatsoever" over the District of Columbia. They further cite the founders' clear intention that the national interest should be paramount in the federal district, asserting that the principle remains valid today. Proponents of voting representation note that the United States is the only federal democratic republic that denies citizens of the national capital voting representation in the national legislature, while such citizens must meet all other requirements of citizenship including the payment of federal taxes and military service.

During the last 37 years citizens of the District have renewed efforts to gain voting representation in the national legislature, petitioning both the Supreme Court and Congress. In a decision issued in 2000, the Supreme Court affirmed a lower court ruling on voting representation in Congress for District residents. On March 20, 2000, in Adams v. Clinton and Alexander v. Daley , the United States District Court for the District of Columbia ruled that the question of voting rights for the citizens of the District was a legislative issue that could only be addressed by Congress through the political process. Since 1978 legislation has been introduced in Congress that would convey voting rights to the citizens of the District of Columbia. These proposals fall into four categories:

bills that would retrocede the nonfederal portion of the District of Columbia back to Maryland, bills granting statehood to the nonfederal portion of the District of Columbia, bills, including a joint resolution proposing a constitutional amendment, that would grant full voting representation in Congress for residents of the District of Columbia, and bills allowing city residents to vote for Maryland House and Senate candidates.

Over the past 10 years Congress's position on allowing the District to use public funds to lobby for voting representation has evolved. Congress has moved from strictly prohibiting the use of District and federal funds to lobby on behalf of statehood or voting representation before Congress or any state legislature, or to cover the cost of court challenges aimed at providing city residents with voting representation in Congress. Instead, since FY2010, Congress has modified the prohibitions to allow the use of District, but not federal funds, to advocate on behalf of voting representation in Congress and to cover the cost of court challenges to the status quo that currently denies District residents voting representation in Congress.

Current Legislative Proposals (H.R. 317 and S. 1688)

H.R. 317 , the New Columbia Admissions Act, introduced by Delegate Norton of the District of Columbia on January 13, 2015, would establish the 51 st state of New Columbia from portions of the current federal district. The unaffected portion of the District (the federal enclave) would remain the Nation's capital and under congressional control and would comprise the principal federal monuments, the White House, the Capitol Building, the U.S. Supreme Court, and the federal executive, legislative, and judicial office buildings located adjacent to the Mall and the Capitol. On June 25, 2015, Senator Carper introduced a similar measure, S. 1688 , that would provide for the admission to the union of a new state, New Columbia. The state would be created from portions of the current federal district.

During the 113 th Congress several bills were introduced in support of voting representation in Congress for residents of the District of Columbia:

H.R. 299 , District of Columbia Voting Rights Restoration Act, introduced by Representative Rohrabacher, is what best may be described as a semi-retrocession bill. It would have treated residents of the District, for purposes of voting rights only, as Maryland citizens. The bill would have allowed District residents to vote in Maryland, and to run for the Maryland Senate seats, but the city would remain an independent jurisdiction. H.R. 362 , District of Columbia House Equal Representation Act of 2013, introduced by Delegate Norton. The bill would have treated the District of Columbia as a state for purposes of representation in the House of Representatives and in the Senate. It would have increased the membership of the House from 435 to 436 Members. H.R. 2681 , the District of Columbia-Maryland Reunion Act introduced by Representative Gohmert, would have retroceded a portion of the District to Maryland and created a National Capital Service Area, which would have remained under congressional control. The National Capital Service Area would have comprised the principal federal monuments, the White House, the Capitol Building, the U.S. Supreme Court, and the federal executive, legislative, and judicial office buildings located adjacent to the Mall and the Capitol. The bill would have allowed for a temporary increase in the number of Representatives until the first reapportionment occurring after the effective date of the act with the District's Delegate serving as a member of the House of Representatives from the State of Maryland.

Policy Questions

The U.S. Supreme Court has ruled that a judicial response to the voting representation issue would be inappropriate and suggested that any remedy must be achieved through the legislative process. The lack of a judicial remedy requires proponents of voting rights to focus on Congress and the political process, although Congress has been reluctant to address this issue because of its broad political implications. A number of specific policy and constitutional questions would have to be addressed if Congress considered legislation granting District citizens voting representation in the national legislature. These include identifying a constitutionally acceptable means by which representation could be achieved (a constitutional amendment, statehood, retrocession, and the secondary effects of each option). Should residents of the District of Columbia, which is not a state, gain the same standing as states, including voting representation in both the House and the Senate, and would such an accommodation violate the Constitution? Would the granting of such representation necessitate a repeal of the 23 rd Amendment, which grants District citizens the right to vote in national elections and conveys three votes in the Electoral College to District voters?

Marijuana Decriminalization34

While activities involving marijuana are strictly regulated as a matter of federal law, over half of all states as well as the District of Columbia have enacted statutes that permit use of marijuana for medical and even recreational purposes. In 1998, the District of Columbia voters approved Initiative 59, which allowed the use of medical marijuana to assist persons suffering from debilitating health conditions and diseases, including cancer and HIV infection. The certification and implementation of the initiative, however, were delayed over a decade by Congress due to the passage of the "Barr Amendment," which, in a series of DC appropriations acts, prohibited the use of appropriated funds to conduct any ballot initiative that sought to legalize or otherwise reduce penalties. In 2010, however, Congress did not include the language in the 2010 District of Columbia Appropriations Act, allowing the law to go into effect. Subsequent appropriations acts have not included the Barr Amendment language either.

Prior to the middle of summer 2014, anyone in the District who knowingly or intentionally possessed marijuana without "a valid prescription or order of a practitioner" (under the District's medical marijuana program) could have been arrested and prosecuted by local authorities and been subjected to penalties of up to 180 days in prison and/or a fine of up to $1,000. In spring 2014, the D.C. Council passed the "Marijuana Possession Decriminalization Amendment Act of 2014" that decriminalized the possession of small amounts of marijuana by making such activity a civil violation subject to a civil fine of $25. The act went into effect in July 2014.

On November 4, 2014, almost 65% of District of Columbia voters voted to approve Initiative 71, which makes it "lawful" for adults 21 years of age or older to possess up to two ounces of marijuana, grow up to six marijuana plants within their home, or transfer up to one ounce of marijuana to another person (as long as no money, goods, or services are exchanged and the other person is at least 21 years of age). Initiative 71 does not permit public consumption of marijuana, which remains a criminal offense under DC law. The initiative also does not establish a regulatory scheme for selling and taxing marijuana. The initiative went into effect on February 26, 2015. Note that marijuana possession remains a federal offense regardless of the District's actions regarding marijuana and thus anyone possessing the drug could be arrested by federal authorities for violations of the federal Controlled Substances Act; nevertheless, it is uncertain whether such actions would represent a high law enforcement priority.

Current Legislative Proposals

Enacted into law on December 17, 2014, the "Consolidated and Further Continuing Appropriations Act, 2015'' (hereinafter Consolidated Appropriations Act) contains a provision relating to the decriminalization or legalization of marijuana in the District of Columbia. Section 809 of the Consolidated Appropriations Act has two subsections, one limiting the District's use of federal funds and one limiting the District's use of all appropriated funds. Subsection (a) provides that

None of the federal funds contained in this Act may be used to enact or carry out any law, rule, or regulation to legalize or otherwise reduce penalties associated with the possession, use, or distribution of any schedule I substance under the Controlled Substances Act (21 U.S.C. 801 et seq.) or any tetrahydrocannabinols derivative.

Subsection (b) provides that

None of the funds contained in this Act may be used to enact any law, rule, or regulation to legalize or otherwise reduce penalties associated with the possession, use, or distribution of any schedule I substance under the Controlled Substances Act (21 U.S.C. 801 et seq.) or any tetrahydrocannabinols derivative for recreational purposes.

Some Members of Congress believe that Section 809 nullifies Initiative 71 by preventing the District from moving forward with marijuana legalization. They have asserted that certain actions taken by DC employees with respect to Initiative 71 constitute a "knowing and willful violation" of the appropriations restriction contained in Section 809 and could, as a result, subject them to criminal liability for violating the federal Anti-deficiency Act. (Note that the U.S. Justice Department has prosecutorial discretion to enforce the criminal provisions of the Anti-deficiency Act and thus may choose to decline bringing such a case against DC employees.)

There is no apparent indication in the legislative history of the Consolidated Appropriations Act that it was the intent of Congress to prevent the implementation of Initiative 71. Floor statements from Representatives who opposed the language in question forwarded the view that the provision would not have the effect of overturning Initiative 71. Relatedly, it was reported that by omitting the words "carry out" in 809(b) (a phrase that is included in subsection (a)), Congress meant to allow the District to "implement" Initiative 71 using "local funds," or funds raised by local DC tax revenues. Advocates of this interpretation concede, however, that the appropriations restriction would appear to prohibit the District from enacting any new laws that pertain to marijuana legalization, such as those that might regulate or tax the sale of small amounts of marijuana.

Policy Questions

Unless and until there is further clarification from Congress (as expressed in legislation that has been enacted into law), the legal status of marijuana in the District appears unsettled. While possession of small amounts of marijuana by adults appears to be permitted (as a matter of District law), the District of Columbia Council is apparently blocked by the Consolidated Appropriations Act from enacting any new laws that would facilitate such possession, including those that would establish a licensing system to regulate and tax commercial suppliers of marijuana and retail sellers of marijuana. This appropriation restriction is binding only for the period of time covered by law (fiscal year 2015). If the restriction is not repeated in the next appropriations act or enacted in other legislation, it would no longer be binding on the District.

DC Gun Laws and Second Amendment Issues54

On June 26, 2008, the Supreme Court issued its decision in District of Columbia v. Heller , which reviewed the constitutionality of a District of Columbia law that essentially had banned handguns for 32 years, among other things. Passed by the District of Columbia Council on June 26, 1976, the Firearms Control Regulations Act of 1975, which became effective September 24, 1976, required that all firearms within the District be registered and all owners be licensed, but it prohibited the registration of handguns after September 24, 1976. In a 5-4 decision, the Supreme Court found the District's handgun ban to be unconstitutional because it violated an individual's right under the Second Amendment to possess a handgun in his home for lawful purposes such as self-defense.

In a related development, on July 24, 2014, the United States District Court for the District of Columbia issued a decision in Palmer v. District of Columbia , which declared unconstitutional a District law that prohibited the carrying of firearms in public in either open or concealed manner. On July 29, 2014, the District Court issued an order granting a 90-day stay of the decision to allow District of Columbia officials to implement measures to comply with the decision.

On October 7, 2014, the District of Columbia Council passed the License to Carry a Pistol Temporary Amendment Act of 2014 (D.C. Act 20-462). Then-mayor Vincent C. Gray signed the bill into law on October 31, 2014. The Metropolitan Police Department began accepting applications for concealed carry pistol licenses on October 23, 2014. This temporary measure, which was transmitted to Congress on January 23, 2015, to allow for the 30-day congressional review/layover, became effective March 7, 2015. Because the act is a temporary measure, it will expire on October 18, 2015, 225 days from the date it became effective (March 7, 2015).

On January 6, 2015, the District of Columbia Council passed the License to Carry a Pistol Second Emergency Amendment Act of 2014 (D.C. Act 20-564). Mayor Muriel Bowser signed the bill into law on the same day. The measure, which took effect immediately, expired after 90 days on April 6, 2015. The act was a temporary emergency measure that addressed or clarified a number of concerns raised since the passage of the temporary measure, including

clarifying due process provisions related to limiting or revoking a license to carry; clarifying amendment prohibiting consumption of alcohol while carrying a concealed weapon; and changes in rulemaking that give the mayor additional flexibility to get rules governing carrying concealed weapons in place.

These acts establish a "may issue" concealed carry permit system under which applicants must demonstrate to the DC police a good reason to fear injury to themselves or their property. Once an application is approved, an applicant is given 45 days to acquire 15 hours of firearms safety training. Such training is to include

firearms nomenclature; basic principles of marksmanship; care, cleaning, maintenance, loading, unloading, and storage of firearms; two hours range training; situational awareness, conflict management, and use of deadly force; selection of pistols and ammunition for defensive purposes; and any applicable District and federal laws.

According to WAMU Radio , the District of Columbia police department had taken in 66 applications for concealed carry permits by late January 2015. Of those applications, the DC police department granted 8 and rejected 11 applications. The District's new "may issue" provisions on carrying concealed were also challenged. On May 18, 2015, the District Court in Wrenn v. District of Columbia issued a preliminary injunction against the District that prohibits it from enforcing the requirement that applicants demonstrate they have a good reason or cause for needing a license to carry concealed as doing so would violate rights protected under the Second Amendment. However, on June 29, 2015, this preliminary injunction was overturned by the U.S. Court of Appeals for the District of Columbia Circuit, therefore allowing DC to enforce this concealed carry provision pending a final ruling from the court.

Current Legislative Proposals (H.R. 1701/S. 874)

Some Members of Congress find District of Columbia gun laws to be out of step with the spirit of both the Heller and Palmer decisions or otherwise objectionable, and have sponsored proposals to block the implementation of those District of Columbia laws. Along these lines, Representative Jim Jordan and Senator Marco Rubio have introduced bills ( H.R. 1701 / S. 874 ) in the 114 th Congress that would amend several provisions of District of Columbia law to

limit the Council's authority to regulate firearms; repeal handgun registration requirements, except for sawed-off shotguns, machine guns, and short-barreled rifles; remove restrictions on ammunition possession; repeal requirements and general policy that DC residents keep firearms in their possession unloaded and disassembled, or bound by a trigger lock; repeal certain penalties for possessing and carrying unregistered firearms; and create a "shall-issue" permitting system for concealed carry of firearms.

In the 113 th Congress, Representative Thomas Massie successfully offered an amendment ( H.Amdt. 1098 ) to the FY2015 Financial Services and General Government appropriations bill ( H.R. 5016 ) that would have prohibited the use of any funding provided under this bill to enforce certain District of Columbia gun laws. The Massie amendment was adopted on a recorded vote: 241-181 (Roll no. 425). The House passed H.R. 5016 with the Massie amendment (§922 of the engrossed bill) on July 16, 2014, but the amendment was not included in the Consolidated and Further Continuing Appropriations Act, 2015 ( P.L. 113-235 ).

Policy Questions

To what extent should Congress, in order to ensure Second Amendment protections for District residents, intrude on the District's prerogative to regulate the possession of firearms?

Reproductive Health Non-Discrimination Amendment Act67

On May 6, 2014, District of Columbia Councilman David Grasso introduced the Reproductive Health Non-Discrimination Amendment Act of 2014 (B20-790) (RHNDAA). The measure, which was approved by the District of Columbia Council on December 17, 2014, was transmitted to the mayor, Muriel Bowser, for her signature on January 8, 2015. The bill, which was signed by the mayor on January 23, 2015, as D.C. Act 20-593, would

amend the District of Columbia Human Rights Act of 1977 to protect individuals from discrimination by an employer or employment agency based on an employer's or employment agency's personal beliefs regarding the use or access to a particular drug, device, or medical service, including an individual's or a dependent's reproductive health decisions, including the decision to use or access a particular drug, device, or medical service; and define reproductive health decisions to include any decision by an employee, his or her dependent, or the employee's spouse related to the use or intended use of a particular drug, device, or medical service, including the use or intended use of contraception or fertility control or the planned or intended initiation or termination of a pregnancy.

Once signed by the mayor the act was transmitted to Congress on March 6, 2015, to begin a 30-day congressional review/layover period, whose end date was May 2, 2015. During this time Congress did not pass a resolution of disapproval that would have effectively rendered the act's provisions repealed and unenforceable.

As passed by the District of Columbia Council and signed by the mayor, the act would amend the District's Human Rights Act to include protection of employees, their spouses, and dependents against discrimination based on the employee's reproductive health decisions. As noted in the committee report accompanying the bill, the act defines reproductive health

to include a decision by the employee or the employee's dependent related to a particular drug, medical device, or medical service, including contraceptive or fertility control, or the planned or intended initiation or termination of a pregnancy.… By protecting the reproductive health care decisions of employees or their dependents, B20-790 will ensure that an employer's personal beliefs do not trump a woman's health or access to health care that she may chose as best for her. Bill 20-790 makes clear that an employee's standing in the workplace should be based on performance not based on personal, private health care decisions.

Much of the controversy surrounding this act centers on whether the act is a reaction to the Supreme Court ruling in the Burwell v . Hobby Lobby decision and its interpretation of the Religious Freedom Restoration Act of 1993. In that decision, the Court ruled that a closely held corporation/employer may act to limit or deny employees access to types of reproductive health choices and services, if such services or choices run counter to the religious belief/tenets of the employer. Opponents of the measure believe the act runs counter to the First Amendment religious freedom protections and the federal Religious Freedom Restoration Act of 1993. For instance, the Archdiocese of Washington has argued that the RHNDAA "prevents religious institutions, other faith-based employers, and pro-life advocacy organizations from making employment decisions consistent with their institutional mission and deeply held moral and religious beliefs about human life and sexuality."

Current Legislative Proposals (H.J.Res. 43)

The act, which was transmitted to Congress on March 6, 2015, was subject to the 30-day congressional review/layover period that ended on May 2, 2015. The House Committee on Government Oversight and Reform approved a resolution of disapproval, H.J.Res. 43 , on April 21, 2015, by a vote of 20 to 16. The committee vote was along party lines. Republican members of the committee voiced concern that the bill would require religiously affiliated institutions and pro-life organizations to support abortion services or other family planning practices that run counter to their religious beliefs or their pro-life positions. On April 30, 2015, the House approved H.J.Res. 43 by a vote of 228 to 192. However, passage by the House left insufficient time for Senate consideration. The bill was received in the Senate on May 4, 2015, two days after the expiration of the 30-day congressional review period. The bill also faced a certain veto by President Obama. Congress may still thwart the continued implementation of the act through the appropriations process. It is conceivable that a general provision may be included in the District's FY2016 appropriation, which faces approval by Congress, which would nullify or modify the language of the RHNDAA.

Policy Questions

Does the RHNDAA violate constitutional protections of freedom of religion and association guaranteed under the First Amendment and statutory prohibitions under the Religious Freedom Restoration Act of 1993?

Human Rights Amendment Act70

On May 21, 2014, District of Columbia Councilman Tommy Wells introduced the Human Rights Amendment Act of 2014, B20-803. The measure, which was approved by the District of Columbia Council on December 2, 2014, was signed by the mayor on January 25, 2015, as D.C. Act 20-605. The act removes a nondiscrimination exemption from the District's Human Rights Act for religious and religiously affiliated education institutions that was first included by Congress in 1989.

In 1989, Congress, when passing the District of Columbia's Appropriation Act for 1990, P.L. 101-168 , included a provision, the Nation's Capital Religious Liberty and Academic Freedom Act (popularly known as the Armstrong Amendment), that granted a nondiscrimination exemption to religiously affiliated educational institutions that allowed such institutions, consistent with their religious beliefs, the power to deny individuals and organizations that promoted or condone homosexuality recognition as a student organization or access to university facilities and resources. Senator Armstrong introduced the amendment on behalf of Georgetown University two years after a 1987 ruling by the District of Columbia Appeals Court that found that the university, in refusing to recognize a gay student organization, violated the District's Human Rights Act. Supporters of the Armstrong amendment argued that religious and religiously affiliated educational institutions should not be compelled to comply with an act that runs counter to their religious teachings.

While supporters of the District's Human Rights Amendment Act of 2014 (HRAA) contend that the act removes the last vestiges of government-sanctioned discrimination based on sexual orientation, religious-based organizations and others advocating against the District's Human Rights Amendment Act of 2014 (HRAA), including the Archdiocese of Washington and the Heritage Foundation, argued that the HRAA eliminates an important protection in the exercise of religious liberty. By rescinding the Nation's Capital Religious Liberty and Academic Freedom Act, District officials acted to eliminate a religious consciousness exemption first incorporated in the D.C. Code by Congress in 1989. The elimination of this exemption removes protections afforded to religiously affiliated educational institutions in the exercise of their religious beliefs regarding human sexuality by "promoting, encouraging, or condoning any homosexual act, lifestyle, orientation, or belief."

Current Legislative Proposals (H.J.Res. 44)

The HRAA, which was transmitted to Congress on March 6, 2015, was subject to the 30-day congressional review/layover period that ended on May 2, 2015. A joint resolution of disapproval was introduced in the Senate on March 18, 2015, and referred to the Senate Committee on Homeland Security and Governmental Affairs. An identical resolution, H.J.Res. 44 , was introduced and referred to the House Committee on Government Oversight and Reform on April 14, 2015. However, neither committee advanced or considered the measure within the 30-day congressional review period mandated under the District's home rule act. Congress may still move to overturn the act through the appropriations process by incorporating language in the general provision section that would nullify or modify the language of the HMAA.

Policy Questions

Is the District of Columbia's recent passage of the Human Rights Amendment Act, which removes non-discrimination protections for religious affiliated institutions, a violation of the constitutional guarantee of equal protection? Does the act run counter to the Supreme Court's decision in Burwell v . Hobby Lobby Stores and the Religious Freedom Restoration Act?