[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]












  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




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              COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

                     JASON CHAFFETZ, Utah, Chairman
JOHN L. MICA, Florida                ELIJAH E. CUMMINGS, Maryland, 
MICHAEL R. TURNER, Ohio                  Ranking Minority Member
JOHN J. DUNCAN, Jr., Tennessee       CAROLYN B. MALONEY, New York
JIM JORDAN, Ohio                     ELEANOR HOLMES NORTON, District of 
TIM WALBERG, Michigan                    Columbia
JUSTIN AMASH, Michigan               WM. LACY CLAY, Missouri
PAUL A. GOSAR, Arizona               STEPHEN F. LYNCH, Massachusetts
SCOTT DesJARLAIS, Tennessee          JIM COOPER, Tennessee
TREY GOWDY, South Carolina           GERALD E. CONNOLLY, Virginia
BLAKE FARENTHOLD, Texas              MATT CARTWRIGHT, Pennsylvania
CYNTHIA M. LUMMIS, Wyoming           TAMMY DUCKWORTH, Illinois
THOMAS MASSIE, Kentucky              ROBIN L. KELLY, Illinois
MARK MEADOWS, North Carolina         BRENDA L. LAWRENCE, Michigan
RON DeSANTIS, Florida                TED LIEU, California
MICK MULVANEY, South Carolina        BONNIE WATSON COLEMAN, New Jersey
KEN BUCK, Colorado                   STACEY E. PLASKETT, Virgin Islands
MARK WALKER, North Carolina          MARK DeSAULNIER, California
ROD BLUM, Iowa                       BRENDAN F. BOYLE, Pennsylvania
JODY B. HICE, Georgia                PETER WELCH, Vermont
STEVE RUSSELL, Oklahoma              MICHELLE LUJAN GRISHAM, New Mexico
EARL L. ``BUDDY'' CARTER, Georgia
GLENN GROTHMAN, Wisconsin
WILL HURD, Texas
GARY J. PALMER, Alabama

                   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                     GERALD E. CONNOLLY, Virginia, 
TIM WALBERG, Michigan, Vice Chair        Ranking Minority Member
TREY GOWDY, South Carolina           CAROLYN B. MALONEY, New York
THOMAS MASSIE, Kentucky              ELEANOR HOLMES NORTON, District of 
MICK MULVANEY, South Carolina            Columbia
KEN BUCK, Colorado                   WM. LACY CLAY, Missouri
EARL L. ``BUDDY'' CARTER, Georgia    STACEY E. PLASKETT, Virgin Islands
GLENN GROTHMAN, Wisconsin            STEPHEN F. LYNCH, Massachusetts


























                            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

 
  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.
    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 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 committee, 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.
    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 municipal 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.
    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. 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.
    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.
    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 Congress 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 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 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.
    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 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 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 that you actually had submitted in terms of briefs and 
other opinions 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----
    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?
    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 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, 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 Autonomy 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 
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.
    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----
    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.
    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.
    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?
    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.]


                                APPENDIX

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