Rebuilding Place in the Urban Space

"A community’s physical form, rather than its land uses, is its most intrinsic and enduring characteristic." [Katz, EPA] This blog focuses on place and placemaking and all that makes it work--historic preservation, urban design, transportation, asset-based community development, arts & cultural development, commercial district revitalization, tourism & destination development, and quality of life advocacy--along with doses of civic engagement and good governance watchdogging.

Monday, October 14, 2013

Keeping DC government open in the face of the federal government shutdown

Left: Sarah Palin delivers remarks as veterans, their families and supporters hold a rally at the World War II Memorial.  Bill O’Leary: The Washington Post.

Despite all the posturing by Republicans like Sarah Palin and Ted Cruz over the closure of Federal parks and museums and all the dissembling (a fancy word for "lying") over the discussion that the National Park Service is being mean, over requiring payment by states to open and operate otherwise shut down federal parks, there is a reason that such agencies are closed:

The Antideficiency Act.

This law makes it illegal for Federal Agencies to spend money that hasn't been appropriated.  But the law is structured to make individual employees responsible for breaking the law, subject to fines and imprisonment.

Since the Federal Government doesn't have a budget for FY2014, agencies can't spend money, at least not legally, despite all the lies and posturings (e.g., "DEAN: Sorry! Your national parks do not belong to you" and "PRUDEN: The cheap tricks of the game" from the Washington Times).

DC's municipal  budget is subject to the approval of Congress

Because of how the District of Columbia was created within the Constitution as a federally-controlled political district separate from a state, for legal purposes, DC is treated as an agency of the federal government.

Even though 60% to 80% of the city's budget is generated by local revenues such as income, sales, and property taxes, the city's annual budget still requires approval by Congress, and spending this money is subject to the Antideficiency Act.

The city is slated to run out of money already appropriated and usable (the Reserve Fund) sometime this week.

It has been delaying payment of other obligations, such as to the local transit authority, WMATA, and to contractors, in turn forcing those organizations to lay off 50% or more of their staffs and stop providing services.

I am not a lawyer, but if the City Government officials truly believe that DC is worthy of "being a state," then I probably would argue for continuing to operate and spending locally generated money, even if Congress hasn't approved the local budget 

Changing the fiscal year.  In response to the current impasse, Councilmember David Grosso has put forth a creative idea ("Grosso Pushes Bill to Change Fiscal Year with Focus on D.C. Autonomy"), that the city should change its fiscal year to start in July, thereby putting the approval into a different issue cycle and removing the city from being one of the pawns in struggles between the Republicans and Democrats.

Referendum to eliminate the provision requiring Congress to approve the local budget.  This is an issue that has been festering for awhile, and was the subject of a local referendum calling on Congress to give up its requirement of having to approve the city's budget each year ("D.C. Budget Autonomy Advocates Still Looking for Congressional Approval" from Roll Call and "House Republicans say D.C. budget autonomy referendum doesn't change law" from the Washington Post).

What about the 14th Amendment?  My argument would be that there is a conflict of laws within the Constitution as it relates to the operation of DC as a residential city.  The Constitution makes DC a federal district, subject to the laws governing other "federal agencies."

But I don't think that the writers of the Constitution intended for the municipal government in DC to not be able to uphold its responsibilities as a local government in face of Congressional inability to pass a budget.

The 14th Amendment clause calls for "equal protection under the law."  
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
While this clause was written to guide action by states, conceptually the clause has been extended so that "state action" has been interpreted to pertain to how the "federal government" acts as well,  especially with regard to civil rights.

Why shouldn't this interpretation be brought to bear on the issue of spending DC's local funds, especially as the budget approval by Congress is for the most part, a mere formality.

It should be argued that the Constitution offers conflicting guidance ("conflict of laws") concerning the operation of DC government as it relates to its ability to conduct local services, and the Courts should rule against continued application of the Antideficiency Act to matters concerning DC's local budget.

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At 2:37 PM, Anonymous charlie said...

sorry, that was me.

And your 14th amndement/ equal protection argument doesn't (to me) have much legs. It is a failure to appropriate, not a "shutdown". Again, it is the OMB/OPM who shutdown based on that failure. One does not have to follow the other.

At 4:35 PM, Blogger Richard Layman said...

I worried that the argument could be eviscerated by a lawyer/Con. law lawyer, but still I can't see how forced failure to operate the city would have been countenanced by the founders.

At 6:24 PM, Anonymous charlie said...

my previous comment was erased -- maybe as spam?

In any case, what I was trying to stay than modifying the anti-defiency act and/or changing the regs on how district employees are treated would be the best way.

And in all honestly that is the FEDERAL city. The senate democrats can get us out of the mess in a second.

"“Fifteen minutes of the U.S. Senate’s time would resolve all this,” Ribeiro said, referring to the lack of upper-chamber action on a bill to fund the District government passed by the House shortly after the shutdown began."

The founders clearly wanted Congress to control the District. What they could have ever imagined was the level of congressional control envisioned by the ada act, and the budget control process from 76 onwards.

At 6:37 PM, Blogger Richard Layman said...

... wrt deleting comments, I only delete the ones that are obviously business promoting. I've never deleted comments otherwise.


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