Gary v. United States
| Decision Date | 17 October 1985 |
| Docket Number | No. 84-703,No. 83-796,No. 84-997.,83-796,84-703,84-997. |
| Parties | Michael D. GARY (No. 83-796), Sylvester Cole (No. 84-703), and Leroy Pee (No. 84-997), Appellants, v. UNITED STATES, Appellee. |
| Court | D.C. Court of Appeals |
Michael W. Farrell, Asst. U.S. Atty., Washington, D.C., with whom Joseph E. diGenova, U.S. Atty., Harold H. Koh, Atty., U.S. Dept. of Justice, and Robert K. Reed, Asst. U.S. Atty., Washington, D.C., were on brief in No. 84-997.
John H. Suda, Principal Deputy Corp. Counsel, Washington, D.C., with whom Inez Smith Reid, Corp. Counsel, and Charles L. Reischel, Deputy Corp. Counsel, Washington, D.C., were on briefs for Intervenor District of Columbia.
Cynthia A. Giordano, Jacquelyn V. Helm, James C. McKay, Jr., and Phyllis D. Thompson, Washington, D.C., were on brief for amicus curiae, Division VI (District of Columbia Affairs), District of Columbia Bar.
Daniel J. Popeo, Paul D. Kamenar, Robert Dowlut, and Richard E. Gardiner, Washington, D.C., were on brief for amicus curiae Washington Legal Foundation.
J. Philip Kessel, Washington, D.C., for appellant in No. 83-796. James Klein, Washington, D.C., with whom Mark S. Carlin, Randy Hertz, Blair G. Brown, and John P. Dwyer, Washington, D.C., were on brief for appellant in No. 84-703. Lawrence M. Baskir, Washington, D.C., for appellant in No. 84-997.
Michael W. Farrell, Asst. U.S. Atty., Washington, D.C., with whom Joseph E. diGenova, U.S. Atty., Harold H. Koh, Atty., U.S. Dept. of Justice, Mark J. Biros, Susan R. Holmes, Mary Ellen Abrecht, and Bradley L. Kelly, Asst. U.S. Attys., Washington D.C., were on brief for appellee in Nos. 83-796 and 84-703.
Before PRYOR, Chief Judge, NEBEKER, MACK, NEWMAN, FERREN, BELSON, TERRY and ROGERS, Associate Judges.
The principal issue presented for decision in these cases is the impact of Immigration & Naturalization Service v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983), on the one "House of Congress" veto provision of the D.C. Self-Government and Governmental Reorganization Act, D.C.Code §§ 1-201 to -295 (1981) ("Home Rule Act") and the consequences upon the convictions on appeal in these cases. We hold that the one house veto provision contained in § 233(c)(2) of the Home Rule Act is invalid based on Immigration & Naturalization Service v. Chadha, supra, that this provision is severable, and that our decision shall apply prospectively only.
Gary challenges his conviction for rape (D.C.Code § 22-2801 (1981)), and Cole his conviction for carnal knowledge (D.C.Code § 22-2801 (1981)). They contend that the Code provisions, under which they were convicted, had been repealed by the adoption of the District of Columbia Sexual Reform Act of 1981, D.C.Act. No. 4-69, 28 D.C.Reg. 3409 (1981) (S.A.R.A. of 1981), since the "veto" of that Act by the House of Representatives was a nullity. They both agree with the position of the United States that the one house veto provision is severable. Gary contends he is entitled to a new trial for this and other reasons while Cole argues that he is entitled to be resentenced for this and other reasons. Pee was convicted of possession of heroin with intent to distribute (D.C.Code § 33-541(a)(1) (Supp. 1984)). He contends that the one house veto provision is invalid, unseverable, and that without the one house veto, the Home Rule Act would not have been passed by Congress. He thus contends the government of the District of Columbia was without authority to enact the statute he was convicted of violating. (District of Columbia Uniform Controlled Substance Act of 1981, D.C.Code §§ 33-501 to -567 (Supp. 1984)). We hold that none of the appellants is entitled to relief.
Self-government existed within what were to become the boundaries of the District of Columbia when Maryland in 1778 and Virginia in 1779 ceded territory to the United States to enable the location of the nations capital on the river Potomac, at some place between the mouths of the eastern branch and Connogocheque.1 In 1801, Congress passed the Organic Act,2 which formed the city into two counties, Washington and Alexandria, and provided for presidentially appointed judicial officers. The Act of May 3, 1802,3 incorporated the city of Washington and created a mayorcouncil system of government. The bicameral council was popularly elected and the mayor was presidentially appointed. In 1812, the composition of the council was revised (although it remained bicameral), and the mayor was to be elected by both chambers of the council. The Act of May 15, 18204 provided for a popularly elected mayor and bicameral council.
In 1871, the first step backwards from local self-government was taken. Congress, by the Act of February 21, 1871,5 unified the entities of Georgetown, the City of Washington and the County of Washington to create a "municipal corporation." A governor was appointed by the president but only one chamber of the bicameral legislature was popularly elected. Beginning in 18746 and culminating in 1878,7 the right of citizens of the District of Columbia to participate in the election of those who would govern them was abolished. The government became three presidentially-appointed Commissioners, one of whom was to be a member of the Corps of Engineers of the U.S. Army. Thus, the situation remained until 1967.
In 1967, using his authority of executive reorganization, the President established a mayor-council government. The mayor and the council were presidentially appointed, subject to Senate confirmation. This form of government continued until the enactment of the Home Rule Act which is at issue in these cases.8
The Home Rule Act contains two separate legislative veto provisions — that contained in § 233(c)(1) and that contained in § 233(c)(2). Section 233(c)(1) provides for veto of certain acts of the District of Columbia government (including certain voter approved initiatives and referendums) by Congress adopting "a concurrent resolution disapproving such act." Section 233(c)(2) provides:
In the case of any such act transmitted by the Chairman with respect to any act codified in Title 22, 23, or 24, such act shall [become effective after a certain time] . . . only if . . . 1 House of Congress does not adopt a resolution disapproving such act.
It is with respect to the "1 House of Congress" veto provision that we must be concerned.
The issue presented in Chadha as stated in the opinion of the Court was the constitutionality of the provision in § 244(c)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1254(c)(2), authorizing one House of Congress, by resolution to invalidate the decision of the Executive Branch, pursuant to authority delegated by Congress to the Attorney General of the United States, to allow a particular deportable alien to remain in the United States.
Chadha, supra, 462 U.S. at 923, 103 S.Ct. at 2770.
The Supreme Court found the one-house veto provision to be unconstitutional because it violated the bicameralism and presentment requirements of art. I of the Constitution which provide:
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives. [Art. I, § 1.]
Every Bill which shall have passed the House of Representatives and the Senate, shall before it become a Law, be presented to the President of the United States; . . . [Art. I, § 7, cl. 2.]
Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations, prescribed in the Case of a Bill. [Art. I, § 7, cl. 3.]
The Court held that all legislative acts by Congress must be presented to the President after bicameral passage before becoming law. "The President's role in the law-making process also reflects the Framer's careful efforts to check whatever propensity a particular Congress might have to enact oppressive, improvident, or ill-considered measures." Chadha, supra, 462 U.S. at 947-48, 103 S.Ct. at 2782-83. The Court pointed out that the bicameral requirement was of no less importance and it would help insure that legislative measures had been carefully considered. Id. 462 U.S. at 948-49, 103 S.Ct. at 2783.
The Chadha holding is broad and sweeping and it undoubtedly invalidates most, if not all, legislative veto provisions enacted by Congress. See Chadha, supra, 462 U.S. at 959, 103 S.Ct. at 2788. (Powell, J., concurring), and, id. at 967, 103 S.Ct. at 2792 (White, J., dissenting). It is its impact on the Home Rule Act to which we now turn.
Admittedly every action taken by Congress is not legislative. The determining factor is not the form of the action but whether it is legislative in character. Chadha, supra, 462 U.S. at 952, 103 S.Ct. at 2784. On the issue presented in Chadha, the Court found the use of the one house veto to be essentially legislative in purpose and effect. This legislative character was demonstrated in Chadha by the fact that Congress could not have required the Attorney General to deport Chadha, absent the legislative veto provisions, unless it passed separate legislation requiring deportation. I...
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