My next assignment from the Hugh Hewitt/Radioblogger effort to parse the document dump from the Reagan Library gives us a look at the arcane but politically potent issue of home rule for the District of Columbia. One could hardly select a less "sexy" topic for research regarding the confirmation of John Roberts to the Supreme Court, but given the proximity and the sensitivity of DC home rule to the Senate, it could provide for some inside-the-beltway debate in the upcoming hearings. The issue of home rule has had its partisan overtones, given the overwhelming Democratic advantage in DC, and that might influence a Senator or two to carefully peruse Roberts' writings on the subject.

My portion of Box 8 contains some provocation for debate, although nothing terribly explosive. The Reagan administration asked Roberts to review issues surrounding the Chadha decision by the Supreme Court, negating the one-house legislative veto on laws passed by the DC Council. Chadha required that Congress override the DC Council in both houses, not just one, to overturn Council actions with which they disagreed. That gave the DC Council much more latitude in which to operate, as they could only be overturned by a joint resolution -- a more difficult feat to engineer, especially given the touchy issue of home rule.

Roberts gave his advice to Fred Fielding on 4 October 1983, along with a slap at an OMB official that prematurely stated the White House position on a legislative response to Chadha, one that would support the Supreme Court decision. Roberts proposed taking a different tack regarding oversight of the DC Council to render Chadha moot:

Stan Harris reacted with understandable horror at the prospect of giving such a free hand to the D.C. Council, particularly in criminal matters, and has asked our office (through Richard Hauser) and the Justice Department to see if there was some different approach that could be taken. ...

Ted Olson is meeting with Harris to review Harris' arguments that Chadha may not be fully applicable to D.C. legislation. Even if these arguments fail, we can still point out policy concerns, and suggest alternatives to the bill. For example, at least in certain areas, it may be better to require affirmative Congressional approval of D.C. laws rather than an opportunity for disapproval by joint legislation.

This would have solved the issue created by Chadha by reversing the process. Instead of the D.C. Council enacting law and the Congress having to muster the necessary political will to reverse it, Roberts suggested that Congress require its approval for at least certain types of laws and regulations passed by the Council before they went into effect. A failure to act would therefore constitute a veto, a kind of legislative pocket veto, as it were.

This suggestion would hardly have captured the delight of DC residents, who firmly believe in Home Rule. The idea that every decision regarding criminal law, at the least, would have to find approval by Congress would not have proven popular at all with a town already predisposed to resent the Reagan Revolution -- and likely would have used his themes of self-government and the elimination of federal interference against this effort. However, I cannot find anything on the Internet that shows if Roberts' suggestion prevailed; what I do find makes it appear that Chadha still prevails.

This may not present a big opportunity for Roberts' opposition to paint him as an extremist, although it would certainly give the DC Home Rule crowd another opportunity to jeer. It might give Roberts a few moments of discomfort at most if his opinions and suggestions on Chadha get mentioned and he is asked about his efforts to circumvent a Supreme Court ruling. He should answer, correctly, that Congress has the power to correct Supreme Court decisions through positive legislation as part of the balance of power created by the Constitution, and that he suggested one legal manner in which Congress could re-establish its authority over the District of Columbia.

I will watch carefully to see if this gets mentioned. My guess: no Senator will find this interesting enough for their 10 minutes on C-SPAN.

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» Adopt A Box of Docs II from Truth Out Loud
My second leap into documents released by the Reagan Library was much more interesting. This set of documents addresses H.R. 3932, A Bill to Amend the District of Columbia Self-Government and Government Reorganization Act. The need for amendment was a... [Read More]

Tracked on August 21, 2005 5:13 PM