District of Columbia officials have been warned not to send controversial new laws to Congress for approval until legislators can sort out the impact on the D.C. Home Rule Act of a recent Supreme Court ruling that outlaws legislative vetoes.
Of particular concern is a pending bill to prohibit D.C. investments in corporations doing business with South Africa. The measure, scheduled for consideration by the City Council next month, is expected to attract strong opposition from powerful business interests and some members of Congress.
Losers on either side in a Hill fight over the bill could bring a lawsuit challenging the manner in which D.C. laws move through Congress, some legislators fear, with unpredictable results for D.C. home rule.
The danger arises because of a provision in the Home Rule Act that allows Congress to overturn D.C.-passed laws by a majority vote of either the House or the Senate. The Supreme Court ruled in June that such legislative vetoes are unconstitutional.
Some congressmen and legal experts fear that a suit challenging the legislative veto portion of the Home Rule Act could result in the act itself being thrown out, along with laws passed under it in the last 10 years. To short-circuit that possibility, work already is under way on legislative proposals to resolve the potential problem, but in the meantime these experts urge caution.
"They city officials don't really comprehend how dangerous it is," said one Hill source who asked not to be identified. "They need to understand that they can't do anything controversial until the whole thing is resolved."
"There is a possibility that the whole Home Rule Act could be in danger," said Rep. Stewart McKinney (R-Conn.), ranking Republican on the House District Committee. But he added that the Hill's legal experts simply do not know what a court might decide in case of a challenge.
Some city officials and legal experts do not see the court's decision as opening the door for a fundamental blow at the legislation setting up self-government for D.C.
D.C. Mayor Marion Barry acknowledged there are concerns about home rule in light of the Supreme Court ruling and said his office is analyzing the impact, but he said he refuses to believe the act itself is in jeopardy.
"I think home rule is too entrenched. I don't think we can get to a point, as we did in 1873 to 1874, when they took it from us. I just don't believe it," he said in an interview.
Top city officials, congressmen and legal experts met for 1 1/2 hours last month, and staff aides have met again since then, to discuss how to deal with the problems raised by the Supreme Court ruling.
While the group discussed the idea of simply letting the issues be resolved through court challenges, the predominant view was that legislation should be developed to change the disapproval mechanism, according to several persons involved.
The basic proposal under consideration, several who attended the meeting said, would require that, in order to overturn D.C.-passed laws, both houses of Congress pass a resolution of disapproval that would have to be signed by the president. This would take care of the Supreme Court's objections to actions taken without both houses of Congress and the president being involved.
Still to be worked out by those developing the legislation is just how much time Congress would have to start a disapproval action and at what point a city-passed bill would go into effect in the absence of such action.
It is also unclear whether Congress would be willing to agree to a mechanism involving that many steps, which would make it more difficult to overturn city-approved ordinances. In the past decade, Congress has only disapproved two D.C. laws--one by a one-house veto and one with a two-house veto.
The South Africa bill could be No. 3, according to McKinney, who advised Barry and Clarke to tread lightly.
"That bill would be a red banner . . . We would get a resolution of disapproval in 2 1/2 minutes," McKinney said. "I just said that until this matter is settled, this is bringing an unnecessary flag in front of the Congress."
D.C. Council Chairman David A. Clarke was unavailable for comment this week. His executive assistant, Richard Clark, said congressional concerns would be taken into account when the South Africa bill is considered, but this does not mean the council would not decide to approve it anyway.
"It is a factor to be weighed, and one that we would not totally ignore," Clark said. "But I wouldn't say it would be a deciding factor."
"The priority would be to clarify the situation on home rule in the best way we could and not do things that would be detrimental to that . . . . There is a sense of urgency."
Council member John Ray (D-at large), author of the South Africa bill, said he sees no reason to hold off action on the proposal.
"I don't see any reason for the District of Columbia to be alarmed," Ray said. He said he has read the Supreme Court ruling several times and does not believe it would affect home rule at all.
The strongest argument in support of this view is the broad authority the Constitution specifically gives Congress over D.C. legislation. The Supreme Court only last year said in a decision that the Constitution gives Congress unique executive and judicial as well as legislative authority over the District, according to Principal Assistant U.S. Attorney Joseph diGenova, formerly the minority staff director of the Senate District subcommittee, who has analyzed the Supreme Court's ruling on the legislative veto.
DiGenova said he is convinced that the courts would uphold home rule and its legislative veto provisions as a mere delegation of Congress' exclusive legislative authority, in much the same way it delegates authority to one of its committees.
A Congressional Research Service analysis prepared last month makes these same points but also counters them with other considerations. The CRS concluded that the constitutionality of the legislative veto in the Home Rule Act as it now stands and of the act itself could only be resolved through litigation.