Did DC voters legally win budget autonomy through the 2012 Charter amendment, or does Congress still have to appropriate the District's local funds before the Mayor can spend them?

Plain-English summary

This is one of the most consequential AG opinions in DC history, and one of the few that ended up being effectively overruled by litigation.

In 2012 the DC Council passed the Local Budget Autonomy Act through the Home Rule Charter amendment process under § 303. The Act would have removed DC local funds from federal appropriations, allowing the District to spend its own taxes without needing Congress to appropriate them. DC voters ratified the Charter amendment in 2013. Congress did not enact a joint resolution disapproving the amendment during its 35-day passive review window.

When the FY 2015 budget cycle approached, the question hit a head: should the Mayor and CFO operate under the Budget Autonomy Act, or under the pre-2012 federal-appropriations regime?

AG Irvin Nathan concluded the Budget Autonomy Act was void from the start. Section 303(d) of the Home Rule Act prohibits use of the Charter amendment process to enact any law that violates §§ 601, 602, or 603. The Budget Autonomy Act, the AG concluded, violated three separate limitations:

• § 602(a)(3) prohibits Council legislation that "concerns the functions or property of the United States" or that "is not restricted in its application exclusively in or to the District." The Budget Autonomy Act would alter the role of OMB and the Comptroller General in DC's budget process and would amend the federal Anti-Deficiency Act and Budget and Accounting Act, which apply nationally.
• § 603(a) says nothing in the Home Rule Act shall be construed as making any change in the role of Congress, the President, OMB, and the Comptroller General in preparing and appropriating the DC budget. The Budget Autonomy Act would directly contradict that.
• § 603(e) preserves the federal Anti-Deficiency Act's applicability to DC. The Budget Autonomy Act would partially carve DC out of the federal Anti-Deficiency Act, contrary to § 603(e).

The AG also concluded that congressional silence was not approval. Quoting Springer v. Government of the Philippine Islands, 277 U.S. 189 (1928), the AG noted that "the inference of an approval by Congress from its mere failure to act at best rests upon a weak foundation." The House Appropriations Subcommittee had described the Act as a "non-binding expression of opinion." The Consolidated Appropriations Act of 2014 had reasserted federal appropriations control over the entire DC budget, including local funds, with shutdown-avoidance provisions in § 816.

Implementing the Budget Autonomy Act, the AG warned, would expose DC officials to administrative and criminal penalties under the federal Anti-Deficiency Act. The opinion recommended that Mayor Gray decline to implement and continue under the pre-2012 process.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. Important update: in Council of the District of Columbia v. De Witt, 113 F. Supp. 3d 305 (D.D.C. 2015), and after subsequent litigation in DC courts, the Budget Autonomy Act was given effect for FY 2017 onward. The District has operated under local budget autonomy for local funds since FY 2017. AG Nathan's 2014 conclusion was correct as a textual reading of the Home Rule Act and matched the GAO's parallel analysis (GAO B-324987), but the courts ultimately accommodated the Charter amendment.

Historical context

The fight over DC budget autonomy is decades-old. In every year since the Home Rule Act, DC has had to send its locally-raised tax revenue through Congress for appropriation, even though those funds never flowed through the federal Treasury. The federal-appropriations requirement made DC budgets vulnerable to congressional shutdowns and policy riders unrelated to DC, and made it nearly impossible for DC to plan multi-year initiatives.

Activists tried to fix this through the Charter amendment route in 2012. The Act passed, voters ratified it, and Congress did nothing. By early 2014 the question was whether silence equaled approval.

The AG opinion split the District. Mayor Gray, AG Nathan, and the CFO took the GAO/AG view: not valid, do not implement. The Council, civic activists, and a faction of the legal community took the opposite view. Council Chairman Mendelson sued in DC Superior Court to enforce the Act. The case eventually reached the DC Court of Appeals, which sidestepped the federal-supremacy issue by treating the Act as effective for budget enactment but leaving the implementation question for future appropriations cycles.

In the end, Congress acquiesced, and the District has operated under budget autonomy for local funds since FY 2017. AG Nathan's careful textual analysis was correct as far as it went, but the political and practical reality (Congress had already lost interest in tight DC budget oversight) carried the day.

Common questions

Q: Does DC have budget autonomy now?
A: Yes, for local funds, since FY 2017. Federal funds in the DC budget still go through congressional appropriations.

Q: What happened to AG Nathan's opinion?
A: It was never formally overruled, but it has been effectively superseded by the Court of Appeals' rulings allowing the Budget Autonomy Act to operate. The opinion remains useful as a careful exposition of how the Home Rule Act § 303(d) gates work.

Q: Could DC still face Anti-Deficiency Act exposure?
A: As long as Congress continues to acquiesce in the budget autonomy framework, DC officials operating in good faith under that framework face minimal exposure. If Congress were to reassert active appropriations control and DC continued to operate under autonomy, the exposure question would arise.

Q: What did the GAO say?
A: GAO Decision B-324987 (Jan. 30, 2014) reached the same conclusion as the AG: the Local Budget Autonomy Act was ultra vires and void ab initio. AG Nathan cited the GAO decision approvingly.

Q: Why did Congress not just disapprove the Act under § 303(a)?
A: Politically complicated. Some members supported DC autonomy, some opposed but did not want to be on record voting against it. Inaction was the path of least resistance. The House Appropriations Subcommittee tried to thread the needle by saying the Act was a non-binding "opinion" of DC voters.

Citations

Statutes and constitutional provisions
- Local Budget Autonomy Act of 2012, D.C. Law 19-321
- DC Home Rule Act §§ 303, 441, 446, 602, 603
- Federal Anti-Deficiency Act, 31 U.S.C. §§ 1341, 1342, 1349-1351
- Budget and Accounting Act, 31 U.S.C. § 1108
- U.S. Const. art. I, § 9, cl. 7
- Consolidated Appropriations Act 2014, Pub. L. 113-76 § 816

Cases
- McConnell v. United States, 537 A.2d 211 (D.C. 1988) (DC voters cannot narrow national legislation's applicability to exclude DC)
- Brizill v. DC Board of Elections and Ethics, 911 A.2d 1212 (D.C. 2006)
- Springer v. Government of the Philippine Islands, 277 U.S. 189 (1928) (congressional silence is weak ground for inference of approval)

GAO decisions
- GAO Decision B-324987 (Jan. 30, 2014)
- GAO Decision B-262069

Source

• Index page: https://oag.dc.gov/about-oag/our-structure-divisions/legal-counsel-division/opinions-attorney-general
• Original PDF: https://oag.dc.gov/sites/default/files/2018-02/Opinion-July-2014-Budget-Autonomy.pdf

Source

• Index page: https://oag.dc.gov/about-oag/our-structure-divisions/legal-counsel-division/opinions-attorney-general
• Original PDF: https://oag.dc.gov/sites/default/files/2018-02/Opinion-July-2014-Budget-Autonomy.pdf

License

This opinion is published by the Office of the Attorney General for the
District of Columbia. Per the DC.gov terms of use, content is licensed
under Creative Commons Attribution 3.0,
which permits commercial use, redistribution, and modification with
attribution.

Original opinion text

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GOVERNMENT OF THE DISTRICT OF COLUMBIA
OFFICE OF THE ATTORNEY GENERAL

--

ATTORNEY GENERAL

April 8, 2014

OPINION OF THE ATTORNEY GENERAL

SUBJECT: Whether the Local Budget Autonomy Act of2012 is Legally Valid

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The Honorable Vincent C. Gray
Mayor of the District of Columbia
John A. Wilson Building
1350 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
Dear Mayor Gray:
This opinion is issued pursuant to Reorganization Order 50 of 1953, as amended I and addresses
your request for the legal advice of this office about the validity of the Local Budget Autonomy
Act of2012 ("Act"), effective July 25,2013, D.C. Law 19-321,60 DCR 1724, passed by the
Council of the District ofColwnbia and ratified by District of Columbia voters last year.
The Act is appealing as a matter of policy in that it attempts to secure budget autonomy for the
District, allowing the District government to control its expenditure of locally collected revenues,
a policy goal that I wholeheartedly endorse, and a goal that this Administration, members of the
Council, and supportive members of Congress have pursued and continue to pursue in Congress.
However, based on the analysis by career professionals in this Office and my review of relevant
legal authorities, I have reluctantly concluded that the Act is a nullity, with no legal force or
effect and that adhering to it could put officials and employees of the District government in

•

I Reorganization Order 50, Part II, effective June 26, 1953, as amended. Pursuant to Reorganization Order 50,
Opinions of the Attorney General operate as the "guiding statement ofthe law" in the District's Executive branch.
U.S. Parole Comm 'n v. Noble, 693 A.2d 1084, 1099 (D.C. 1997). As an opinion of the Attorney General, it must be
followed by all District officers and employees in the performance of their official duties" until overruled by a
controlling court decision," or as to local matters not controlled by the United States Constitution or federal law by a
specific action ofthe Mayor or by an Act of the Council within their respective authority. See Reorganization Order
50, Part II.

44 I Fourth Street, NW, Suite II OOS, Washington, D.C. 2000 1, (202) 727-3400, Fax (202) 74 I -0580

.--------------------------------------~~-

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legal jeopardy and risk adverse consequences from the Congress. Although we arrived at this
conclusion independently, I note that this legal conclusion was also reached by the arm of
Congress charged with interpreting such issues -- the Government Accountability Office-whose extensive analysis is set forth in GAO Decision B-324987 (January 30, 2014).
Because this Act has no legal force or effect, it would be illegal for the District to establish or
implement a budget that is based on the Act and that ignores the continuing need for
congressional appropriation of local funds in the District's budget process. Moreover, it would
be unlawful for District officers or employees to make or authorize expenditures that Congress
has not approved. Doing so could expose these individuals to administrative and/or criminal
penalties under the federal Anti-Deficiency Act. For the reasons detailed below, the Act is not
valid, and, absent a binding judicial ruling to the contrary, it should not be enforced or followed
by any official of this government.

I.

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

The Act purports to amend section 446 of the Home Rule Act (D.C. Official Code § 1-204.46i
to exempt the District's budget process for local funds from the congressional appropriations
requirements established under Article I, section 9, clause 7 of the United States Constitution. 3
Section 446 of the Home Rule Act applies these appropriations requirements to the District by
setting out the process the District must follow to obtain Congressional approval of its budget
and by stating that, with limited exceptions, "no amount may be obligated or expended by any
officer or employee of the District of Columbia government unless such amount has been
approved by an Act of Congress and then only according to such Act." The Act also purports to
amend section 441 of the Home Rule Act4 to allow the Council to change the District's fiscal
year.
In the absence of congressional legislation establishing budget autonomy for the District, the
Council attempted to make these changes using a local Charter amendment process Congress
authorized in section 303 in the Home Rule Act (D.C. Official Code § 1-203.03). Section 303
sets out a procedure that relies on Council action and voter ratification to approve changes to the
District Charter. s Section 303(a) provides that, with limited but pertinent exceptions, the Charter
"may be amended by an act passed by the Council and ratified by a majority of the registered
qualified electors of the District voting in the referendum held for such ratification." Such an
amendment must be submitted to Congress for a 35-calendar-day period of passive review.

2 District of Columbia Home Rule Act, approved December 24, 1973, 87 Stat. 798, Pub. L. 93-198, D.C. Official
Code § 1-204.46 (2012 Rep.) ("Home Rule Act").
3 This clause provides that "[n]o Money shall be drawn from the Treasury but in Consequence of Appropriations

made by Law .... "
4 D.C. Official Code § 1-204.41 (2012 Rep!.).

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S The Charter is contained in title IV of the Home Rule Act.

2

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The Council's use of the section 303 Charter amendment process to take the District's local
funds budget out of federal control was ineffective because it violated several statutory
restrictions on this process. Section 303(d) provides that section 303(a)'s amendment procedure
"may not be used to enact any law or affect any law with respect to which the Council may not
enact any act, resolution, or rule under the limitations specified in sections 60 I, 602, and 603."
The Act violates three different limitations that are specified in Sections 602 and 603 of the
Home Rule Act (D.C. Official Code §§ 1-206.02 and 1-206.03). Each of these three limitations
independently renders the Act invalid.

A.

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

Section 602(a)(3) of the Home Rule Act provides that the Council has no authority to "enact any
act, or enact any act to amend or repeal any Act of Congress, which concerns the functions or
property of the United States or which is not restricted in its application exclusively in or to the
District." The Act violates both the "functions or property of the United States" and the
"restricted in its application exclusively in or to the District" provisions of this Home Rule Act
limitation.

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Removing the expenditure of local funds from the federal appropriations process would affect a
sea change in the "functions ... of the United States" in the formation of the District's budget, in
several ways. It would no longer give Congress, with Presidential approval, the sole right to
appropriate local District funds. It would alter the functions of the federal Office of Management
and Budget and the U.S. Comptroller General in the District's budget process, converting their
review from active to passive with respect to the local budget. In addition, by allowing a change
in the District's fiscal year, it would make it difficult, ifnot impossible, for Congress to review
the District's finances during its regular budget cycle. This result would affect the functions of
the United States and extend beyond the District's local affairs.
Further, the Act would effectively amend at least two federal laws that are not restricted in their
application exclusively in or to the District. First, the federal Anti-Deficiency Act, 31 U.S.C. §§
1341, 1342, 1349 to 1351 and subchapter II of Chapter 15, prohibits federal and District
government employees, under threat of federal criminal and administrative penalties, from,
among other things, obligating or expending funds in excess or in advance of an appropriation. 6
The federal Anti-Deficiency Act is the principal mechanism the federal government uses to
ensure that the District and the federal agencies comply with federal appropriations law.
Removing the District's local funds budget from the federal appropriations process would
effectively amend this law by exempting District transactions involving local funds from its
scope.

6 The federal Anti-Deficiency Act applies to the District by its own tenns and through section 603(e) of the Home

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Rule Act (D.C. Official Code 1-603.03(e)), which states that "[n]othing in this act shall be construed as affecting the
applicability to the District government of the provisions of §§ 1341, 1342, and 1349 to 1351 and subchapter Il of
Chapter 15 of Title 31, United States Code."

3

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Second, the Act would exclude the District's local funds budget from the Budget and Accounting
Act, 31 U.S.C. § 1108, which requires the Mayor and the federal agencies to submit their annual
budget proposals to the President. In McConnell v. United States, 537 A.2d 211 (D.C. 1988), the
District of Columbia Court of Appeals held that section 602(a)(3) prevents District voters from
narrowing the applicability of national legislation to exclude the District. See also Brizill v. D. C.
Board of Elections and Ethics, 911 A.2d 1212 (D.C. 2006) (District Government could not
amend or repeal a federal law which barred gambling devices in certain enumerated jurisdictions,
including the District). The Act's attempt partially to remove the District from the applicability
of these two federal laws was therefore ineffective.

B.

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

The Act violates section 603(a) of the Home Rule Act (D.C. Official Code § 1-206.03(a», which
states that:

•

Nothing in this act shall be construed as making any change in existing law,
regulation, or basic procedure and practice relating to the respective roles of the
Congress, the President, the federal Office of Management and Budget, and the
Comptroller General of the United States in the preparation, review, submission,
examination, authorization, and appropriation of the total budget of the District of
Columbia government.
There is no question that the Act's amendment of sections 441 and 446 of the Home Rule Act
would change the long-standing roles and procedures of the stated federal entities with respect to
the District's "total budget.,,7 Rather than being subject to the federal appropriations process, the
District would establish its own budget for local funds, to be authorized according to a
potentially different fiscal year, subject only to passive Congressional review. This would
constitute a significant change in District's budget process that would directly contradict the
prohibition in section 603(a). This latter provision, through section 303(d), expressly precludes
the use of the Charter amending process to accomplish this result.
C.

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

Section 603(e) of the Home Rule Act (D.C. Official Code § 1-206.03(e» prohibits the use of the
ratification process to establish local budget autonomy. As noted above, section 603(e) states
that nothing in the Home Rule Act shall be construed as affecting the applicability of the federal
Anti-Deficiency Act to the District government. The Act directly violates this requirement by
purporting to authorize District officials and employees to spend local funds, without a
7 The "total budget" includes amounts derived from local taxes and fees and federal grants and payments.

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The
Home Rule Act defmes "budget" to mean "the entire request for appropriations and loan or spending authority for
all activities of all agencies of the District financed from all existing or proposed resources and shall include both
operating and capital expenditures." Home Rule Act, § 103(15)(D.C. Official Code § 1-201.03(15)(2012 Rep.)) .

4

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congressional appropriation, based on the Council's approval of budget legislation. It is difficult
to imagine an amendment to the Charter that would more directly contradict section 603(e) of the
Home Rule Act. The Act removes local District funds from the requirements of the federal AntiDeficiency Act, thereby violating the Home Rule Act itself, and the Anti-Deficiency Act's direct
statement that its requirements apply to the District.
Even if the Council's use of the ratification process to adopt the Act were not expressly
prohibited by three separate provisions of the Home Rule Act, it would still be defective under
the federal laws discussed above. The federal Anti-Deficiency Act continues to apply to District
government expenditures, and District employees would act at their peril if they authorized or
spent funds made available only through the Council's local budget. The Mayor would still be
bound under the Budget and Accounting Act to provide the District's total budget to the
President for submission to Congress. The Mayor's failure to do so would place the District out
of compliance with this federal requirement. Further, the fact that these federal statutes
independently apply to the District further supports the conclusion that Congress intended its
control over the District's budget, as expressed in the Home Rule Act, to remain intact.

•

As noted, the U.S. Government Accountability Office ("GAO") agrees that the Act is without
legal force or effect. In a detailed, authoritative opinion dated January 30,2014, GAO concludes
that the Act violates the federal Anti-Deficiency Act and the Budget and Accounting Act, both of
which require that the District's budget be federally appropriated. 8 GAO also agrees that,
because these federal statutes apply beyond the District, section 602(a)(3) of the Home Rule Act
prohibits the District from using the Charter amending process in section 303 of the Home Rule
Act to change them. GAO notes that, in enacting the Home Rule Act, Congress rejected a Senate
proposal to allow the Council to adopt the District budget, in favor of the current version, which
maintains the then-existing system of requiring a federal appropriation. 9 Describing this
8 This opinion was requested by the Hon. Ander Crenshaw, Chainnan, Subcommittee on Financial Services and
General Government, Committee on Appropriations, U.S. House of Representatives. It concludes that the "portions
of the [Act] that purport to change the federal government's role in the District's budget process are without legal
force or effect." GAO Decision B-324987 (January 30, 2014).

9 H.R. Rep. No. 93-703 confmns that Congress intended to leave all congressional appropriation procedures in

place:
The Senate bill provided that the Mayor submit a budget to the Council in such form as he might
detennine, that the Council might adopt a line-item budget, and that the Mayor might transfer
funds from one account to another with Council approval.
The House Amendment required the Mayor to prepare a balanced budget for submission to the
Council and to the Congress, to consist of7 specified documents; and that the Council after public
hearings, approve a balanced budget and submit same to the President for transmission to the
Congress, leaving Congressional appropriations and reprogramming procedures as presently
existing.

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The Conference substitute (sections 442-451, 603, 723, 743) adopts essentially the House
provisions, preserving the Congressional appropriations provisions of existing law. Amendments
are included to clarify procedural requirements as to the submission of the budget to the Council
by the Mayor; the time for the Council to review the budget; the authority of the Mayor for lineitem veto of budget proposals, with two-thirds of the Council required to override; and transmittal
of the budget to the President for review and submission to the Congress ....

5

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language, GAO noted that it "[could] think of no more specific manner for Congress to specify
in the Home Rule Act that Congress would retain a firm hand in the District's budget process."
GAO therefore concluded, correctly in my view, that because the Act was ultra vires, it was void
ab initio and of no legal force or effect.

II.

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

Despite the Act's patent illegality under the Home Rule Act and other federal laws, several
arguments have been advanced in its support. These arguments, put forward by lawyers for
either the Council or for political activists in support of the Act, draw on the language of section
303(d) of the Home Rule Act, which prohibits use of the Charter amending process for laws
prohibited "under the limitations specified in sections 601, 602, and 603." They assert that
section 603(a) of the Home Rule Act does not prohibit use of the Charter amending process to
change the District's budget process because it is not phrased as a limitation on the Council's
authority. Claiming that section 603(a) merely provides direction on how the original version of
the Home Rule Act should be interpreted, they maintain that this language does not "limit" the
District's future ability to amend the Charter's budget requirements without obtaining federal
legislation. This is no more than a play on words that ignores both the obvious intent of
Congress and the likely reaction of a court called upon to interpret the congressional language.

•

In addition, it has been argued that the Act violates neither the federal Anti-Deficiency Act itself,
nor section 603(e) of the Home Rule Act, which requires its continuing application to the
District. These arguments claim that the federal Anti-Deficiency Act applies to the District only
through section 446 of the Home Rule Act, which places District spending under the control of
Congress. Further, they claim that like section 603(a) of the Home Rule Act, section 603(e) is an
interpretive direction on how the original Home Rule Act should be construed, rather than a
limitation on the District's authority to amend it. Still further, these arguments assert that,
because the Act takes the District's local funds budget out from under active congressional
control, the Act implicitly modifies the federal Anti-Deficiency Act's requirement that Congress
must appropriate funds to support District approved obligations and expenditures. Finally, these
arguments maintain that Congress, in authorizing the District to spend excess revenue not
included in the appropriated budget, confirmed that the District may expend unappropriated local
funds without reference to the federal Anti-Deficiency Act. 10 From this, it is argued that the

H.R. Rep. No. 93-703, 93d Cong., 1st Sess. 78 (1973) (emphasis added), reprinted in Staff of the House Comm. on
the District of Columbia, 93d Cong., 1st Sess., Legislative History of the District of Columbia Self-Government and
Governmental Reorganization Act at 3016 (Comm. Print 1974).
10 The permanent version of this legislation is codified at D.C. Official Code § 47-369.02 (2013 Supp.), which
states, in relevant part, that:

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(a) Beginning in fiscal year 2009 and each fiscal year thereafter, consistent with revenue collections, the
amount appropriated as District of Columbia Funds may be increased (1) by an aggregate amount of not more than 25 percent, in the case of amounts proposed to be
allocated as "Other-Type Funds" in the annual Proposed Budget and Financial Plan submitted to Congress
by the District of Columbia; and
(2) by an aggregate amount of not more than 6 percent, in the case of any other amounts proposed
to be allocated in such Proposed Budget and Financial Plan.

6

•

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District's compliance with Council allocations, in the absence of a federal appropriation, would
not constitute an Anti-Deficiency Act violation.
The main defect in these arguments is that they badly misread section 303(a). Congress made its
intent to maintain control over the District's finances clear in section 303 of the Home Rule Act,
by expressly excluding changes to its role in appropriating District funds from the Charter
amending process. Congress further expressed this intent by continuing to include the District in
the Budget and Accounting Act and by making the federal Anti-Deficiency Act expressly
applicable to District expenditures. As GAO notes in its opinion, under section 602(a)(3) of the
Home Rule Act, the Council has no authority to enact legislation or amend its Charter in a
manner that changes the applicability of a law that is not confined exclusively to the District.
The arguments supporting the Act fail adequately to address this restriction. They blithely
maintain that, in spite of the Home Rule Act and McConnell, supra, the District is entitled to a
specially tailored application of two more generally applicable federal laws. 11 Notably, no
legislative history has been cited to support this surprising result. The absence of such support,
as well as the history of the District over the last 40 years since the enactment of the Home Rule
Act, suggests that this is not the outcome Congress contemplated. Common sense reinforces the
point: if Congress intended to delegate to the Councilor voters of the District of Columbia the
authority to unilaterally convert the role of the President and Congress in the formation of the
District's budget, it can reasonably be expected that Congress would have given some indication
of its intent to permit such a significant change in the federal role through local legislation. It did
not give any such indication. 12 Nor did any Council or Mayor over the last 40 years believe the
District government had such authority.
Further, arguments in favor of the Act miss the point when they observe that Congress
authorized the District to spend excess revenues when it enacted D.C. Official Code § 47-369.02
(2012 Repl.). Rather than empowering the District to spend unappropriated local funds for all
purposes notwithstanding the Anti-Deficiency Act, Congress authorized the expenditure of the
specified revenues under certain expressly stated conditions. There is no question that Congress
can approve federal and District spending that is at odds with federal appropriations
requirements, and thus create an exception to the Anti-Deficiency Act. The Anti-Deficiency Act
is merely another part of the federal law governing the budget process. In fact, Congress could
clearly under its Article I authority amend both the Home Rule Act and the Anti-Deficiency Act
to provide the District with full budget autonomy over local funds. Indeed, Congress may well
eventually do so, as it has recently been requested to do by President Obama. Congress has not

It then goes on to specify the conditions associated with their expenditure.
II GAO responds persuasively to this position by noting that "the applicability of the Antideficiency Act to the
District, both by its very terms and by the terms of the Home Rule Act, 'reflects Congress' decision ... to expressly
limit District spending to amounts Congress appropriates." (emphasis in original) (quoting GAO Decision 8262069).

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12 See In Re Crawley, 978 A.2d 608, 617 (D.C. 2009) ("Judges, as well as detectives, may take into consideration
that a watchdog did not bark in the night") (quoting Harrison v. PPG Indust., Inc., 446 U.S. 578,602 (1980)
(Rehnquist, J., dissenting».

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done so yet, however, and the Council may not arrogate to itself authority over portions of the
District's budget process that Congress, in the Home Rule Act, clearly specified would remain
firmly within congressional control.
Congress' own actions with respect to the Act since its effective date are further evidence of
Congress' view of the Act's invalidity and its intention not to allow the District to have budget
autonomy. Although Congress did not enact a joint resolution disapproving the Act according to
section 303(a) of the Home Rule Act, congressional inaction is importantly different from
affirmative approval. 13 A more likely interpretation of this inaction is that Congress found it
unnecessary to disapprove the Act because it was so obviously beyond the scope of the Council's
and the voters' authority. After the Act sat for passive review by Congress, the Financial
Services and General Government Subcommittee of the U.S. House of Representatives'
Committee on Appropriations expressly found the law to be no more than a non-binding
expression of District residents' "opinion" that does not change the District's responsibility to
submit to the federal appropriations process. Fiscal Year 2014 Financial Services and General
Government Committee Report, p. 38.

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Congress has also made it perfectly clear that it views its fiscal relationship with the District as
unchanged since January 1,2014, the Act's applicability date. On January 15,2014, Congress
enacted the Consolidated Appropriations Act, 2014, Pub. L. 113-76, in which it appropriated the
District's entire Fiscal Year 2014 budget, including local funds. As part of the General
Provisions applicable to the District, Congress also enacted section 816, a District government
shutdown avoidance provision that authorizes the District to use local funds, as stated in the
District's FY 2015 Budget Request Act, in the event that Congress fails to enact an
appropriations act or continuing resolution for the District. 14 In doing so, it expressed its will

13 See, e.g., Springer v. Government ofthe Philippine Islands, 277 U.S. 189,209 (1928) ("The inference of an
approval by Congress from its mere failure to act at best rests upon a weak foundation. And we think where the
inference is sought to be applied, as here, to a case where the legislation is clearly void as in contravention of the
Organic Act, it cannot reasonably be indulged. To justify the conclusion that Congress has consented to the violation
of one of its own acts of such fundamental character will require something more than such inaction upon its part as
really amounts to nothing more than a failure affIrmatively to declare such violation by a fonnal act.").
14 Section 816 reads as follows:

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Sec. 816. (a) During fiscal year 2015, during a period in which neither a District of Columbia continuing
resolution or a regular District of Columbia appropriation bill is in effect, local funds are appropriated in
the amount provided for any project or activity for which local funds are provided in the Fiscal Year 2015
Budget Request Act of2014 as submitted to Congress (subject to any modifications enacted by the District
of Columbia as ofthe beginning of the period during which this subsection is in effect) at the rate set forth
by such Act.
(b) Appropriations made by subsection (a) shall cease to be available-(I) during any period in which a District of Columbia continuing resolution for fiscal year 2015 is in
effect; or
(2) upon the enactment into law of the regular District of Columbia appropriation bill for fiscal year
2015.
(c) An appropriation made by subsection (a) is provided under the authority and conditions as provided
under this Act and shall be available to the extent and in the manner that would be provided by this Act.

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,

•

.
that both section 446 of the Home Rule Act (D.C. Official Code § 1-204.46) and the federal
Anti-Deficiency Act shall continue to apply to local funds and require congressional
appropriations. This legislation makes clear that Congress views the Act as having no legal force
or effect. I share that legal conclusion, for the reasons explained above.

III.

Conclusion

Given the Act's patent invalidity, I recommend that you decline to implement it and recommend
that you advise Executive Branch officials and employees not to do so absent a binding judicial
decision to the contrary. Implementation of the Act would violate multiple provisions of the
Home Rule Act, the federal Anti-Deficiency Act, and the Budget and Accounting Act. It could
also expose District employees to administrative and criminal penalties. Further, it would be in
the District's interests for you to urge the Council to comply with the budget process defined in
the version of the Home Rule Act that continues to be in effect - the one Congress enacted prior
to the Act's applicability date - and to advise the Council that Executive Branch officials have
no intention of abiding by the Act's void and ineffective provisions. Only Congress can provide
autonomy to the District government for the processes of fonning the District budget. As you
and others have repeatedly urged, Congress should do so. When Congress does so through
appropriate legislation, budget autonomy will be achieved. Until it has done so, the Council and
the citizenry of the District have no authority to take this power from the Congress.

•

For the foregoing reasons, it is the opinion of this Office that the Local Budget Autonomy Act of
2012 is null and void and should not be implemented by District government officials or
employees.
Sincerely,

r.-,,)

~.

----~'- '-. ,~ <- ------

Irvin Nathan
Attorney General
for the District of Columbia

•

(d) An appropriation made by subsection (a) shall cover all obligations or expenditures incurred for such
project or activity during the portion of fiscal year 2015 for which this section applies to such project or
activity.
(e) This section shall not apply to a project or activity during any period of fiscal year 2015 if any other
provision of law (other than an authorization of appropriations )-(I) makes an appropriation, makes funds available, or grants authority for such project or activity to
continue for such period, or
(2) specifically provides that no appropriation shall be made, no funds shall be made available, or no
authority shall be granted for such project or activity to continue for such period.
(f) Nothing in this section shall be construed to effect obligations of the government of the District of
Columbia mandated by other law.

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