What Would Happen If Trump Revoked Home Rule

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Today on ZDC, anyone paying attention to the DC mayor's race knows that for all the

talk of affordability and crime, the stuff, all mayors everywhere have to deal with, there's

one central issue that's unique to DC, home rule.

Today, we're revisiting a conversation we had last year with Howard University's Robinson

Woodward Burns about what home rule is, how it happened, and how it might go away.

Today is Wednesday, March 11th, I'm Michael Schaefer, here's what DC is talking about.

Robinson, thank you so much for being here.

Thank you for having me.

The conversation these days about home rule is like, oh my God, we might lose home rule.

And for most of my life, and I'm 51, it's been like, is this sort of insufficient version

of home rule, how can we get rid of it and get statehood?

So DC's conversation has gone in a very different direction, but I feel like, given the current

moment of the real threat that home rule will disappear, can you just take us back for

a second?

What was it like before home rule?

What was the system, how was Washington, DC governed?

That's a great question.

So the US Constitution calls for the creation of a federal district under the on-played

clause that gives Congress plenary or complete power over the federal district.

The district was organized in 1790, and from this period between 1790 up to the year 1973,

Congress exercised that authority, sometimes giving the district more discretion over

its own affairs and sometimes giving it less discretion over its own affairs.

So briefly in the 1870s, for example, DC was actually a territory on the path to statehood

when that territory went over budget with these kind of capital improvement projects, infrastructure

projects, Congress took away territorial status.

So there's been a kind of a long period in which Congress granted more power or less

power to the district, often for partisan reasons, members of Congress would give more power

to the district into its voters when they thought that those voters would support the majority

party in Congress.

And that happened back and forth all the way up to 1973 when the home rule act was passed.

After a bulk of that time, after the end of the territorial experiment, it was this

so-called Commissioner system, the coming of home rule, the end of this Commissioner system,

and the civil rights movement are pretty hard to separate from one another because it

was ultimately driven by people being offended that you have this, this, it's un-American,

this group of people who are being taxed and don't get to vote for who taxes them.

And particularly, it was an increasingly black city being run by a bunch of white segregationists.

How did home rule get accomplished?

I think that's a great question.

So there's this period in the mid-20th century where there's a change in federal politics

around the district of Columbia.

Remember, Congress under the enclave clause is Plenary Authority of the Districts of

Congress.

It's really what you want to look at in Congress.

There is across both parties a good deal of moderation.

It's a period of very low polarization.

And so there are pro civil rights Republicans and there's a pro civil rights wing of the

Democratic Party as well.

Across the two parties, you can say that there's something like consensus for support for

civil rights.

It's the Democratic Party, especially in the 1960s, that drives this.

You'll note that the 23rd Amendment, which gives district residents the right to vote

for president, was actually passed and championed by Republican president Eisenhower.

And so this consensus across the parties in favor of civil rights reform brings us the

23rd Amendment.

It's in the 1964 election that district residents are first able to vote for presidential

candidate.

And then in 1967, the district gets its first appointed city council under Lyndon Baines

Johnson.

Now, still, there's this denial of the right to vote in the 1960s, D.C., the proportion

of the population that's black is increasing, especially after the 1968 uprisings or riots.

And so this kind of leads to the argument that the disenfranchisement is on the basis

of race.

And it is in 1973 with the passage of the Home Rule Act that residents of the district

get to elect that council as well as a mayor.

So I'll get to the civil rights piece of it.

But one thing that sort of gets short shrift because it was sort of less dramatic than the

civil rights implications, when it had a white majority, when it had a black majority,

either way, Washington was not very well governed, like the roads weren't that good and the

schools weren't that good.

We're talking about the pre-Home Rule period.

That was part of the argument for home rule that government works better when the people

in power can be unseated by if people are pissed off about bottles.

I think that's right.

So we see the district going through phases in which it has more and less authority in

the antebellum period in which black people were wholly denied the right to vote.

We actually see the same pattern happening.

D.C.

briefly had representation in the U.S. House, albeit as a kind of adjunct to the U.S.

House representatives to Maryland and Virginia, D.C.

got an extra seat that was appended to the Maryland delegation and one appended to the

Virginia delegation.

Congress took that away even when the district's selector was entirely white.

And so the story of kind of racial disenfranchisement can't explain the entire story of the districts,

disenfranchisement or push for enfranchisement.

And often when Congress delegates more authority to the district, it's because it doesn't want

to deal with the day-to-day struggles of governing jurisdiction, which in the mid-20th century

had nearly a million people.

So by the time the home rule act came about, this was one argument for creating a district

government, was that governance by committee, was the two congressional committees, plus

the old commissioner system, it was just an inefficient way to run things.

In contemporary debates, there is sort of a push and we can talk about this to repeal

the home rule act.

I'm not sure members of Congress gesturing in that direction actually understand how much

work it would put on that plate.

So in the early 70s, they get home rule and it's incomplete in the sense that, you know,

I think they didn't trust these black people to persecute crime.

So they kept the US attorney at the DA.

Locals didn't get to elect a DA or have a DA the way that regular Americans do.

But it was more or less run like a normal city for a time.

And now that time, there's a talk of it coming to an end.

What would have to happen for home rule to be ended?

Could Trump just end it like that with the fiat as he seems to be threatening to or would

they have to pass a law?

They would have to pass a law to do it constitutionally.

The enclave clause is pretty clear that Congress and only Congress has plenty of authority

over the district of Columbia such that repeal of the home rule act would have to happen

by congressional statute.

Now, Republicans do have a razor thin majority in both chambers.

It's not clear whether they would actually have the numbers to pass a bill like that,

especially if under consideration they understood the amount of work it would put on their

plate in terms of reassembling those committees.

Would it be subject to filibuster?

Yep.

And any form of normal legislation that's not related to, for example, budget carveouts

would be subject to a filibuster and the congressional research service said that, you know, home

rule, though it does relate to budgetary concerns, the home rule act or a state of a bill,

would be subject to filibuster sort of a rules change or creation of a new rule for

an exemption.

So with simple majority or even with a kind of filibuster threshold, I think it's unlikely

to see an act like that passed.

Now, that being said, Donald Trump effectively abolished the Department of Education, which

has to be done by statute, effectively the way this might work if you wanted to abolish

the district's government is to simply defund it and we've seen a gesture in that direction.

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So what can Trump do legally?

Trump has two legal or constitutional routes to exert authority over the district.

One is to take control over the district guard, unlike national guards in states which

answer directly to the governor, the National Guard and the District of Columbia answers

through the Department of Defense to the president rather than directly to the mayor.

This has sort of been a recurring issue of debate in the annual Defense Authorization,

National Defense Authorization Act.

But it does give Trump the authority to deploy or withhold deployment of the National

Guard.

As we saw, you know, this is pretty contentious.

The second thing Trump can do is briefly for one month period to control over the Metropolitan

Police Department DC's police force.

And this is really reserved for emergencies.

But we have seen Trump really pushing the sort of constitutional limits on emergency powers

famously claiming that tariffs can be passed as a through a emergency executive orders,

really sort of stretching the limits of what's constitutionally possible.

I think the last thing to note is that while there are these pretty strong legal restraints

on what the executive can do in governing the District of Columbia, because Congress

is controlled by this very slim Republican majority right now, the Republican Congress

isn't really actively enforcing its constitutional powers.

And I would not be surprised if Trump exceeded its constitutional powers in cracking down

on the District of Columbia in ways that Congress was unlikely to contest.

I don't think law is a really serious constraint against Trump in this case.

All right.

And what can't Trump do legally?

Yeah, because the Constitution grants powers, plenary powers over the District of Columbia

to Congress, these are exclusive powers.

It means that Congress has the powers to the exclusion of other branches, including the executive.

So while Trump has these narrow powers to, say, control the DC National Guard or DC police

forces, he doesn't really have the power to control day-to-day life in DC,

at least legally in ways that would say relate to beautification of the city,

something he's talked about, or kind of broader questions of policing and crime.

Those are a really municipal concerns that fall to the District government.

I don't think I would stop him for trying to exceed his constitutionally granted powers.

Right. So Senator Mike Lee filed a bill July 23rd that would alter the home relax,

effectively expanding how much what the federal government controls in DC.

Again, is that is that a thing that it's just going to die with a filibuster?

Yeah, there are kind of, you might think of this as three levels of aggression or

intensity in terms of rolling back the district's home rule.

Right. The first would be a wholesale repeal of the home rule act by statutory legislation.

It seems a little unlikely. A second option would be to reduce the district's budget authority.

And we've seen some movement towards this in the US House and a little bit in the Senate.

Like Lee famously is a major opponent of the district's home rule rights in the Senate.

So reducing the district's fiscal or budgetary authority can be done in a few ways,

can be done statutorily a little easier to pass perhaps on a wholesale repeal of the home

rule act, or it can be done by forcing the trigger of the control board.

So the district between 1995 and 1999 was under Congress's authority through the enclave

clause partly because the district under Mary and Barry's fourth term ran over budget.

If the district failed to meet the fiscal requirements under the control board act,

then you could effectively override at least on the temporary basis the district's government.

A third way, which is sort of what we see now is just placement of riders.

And this is kind of a longstanding pattern in which individual house members will try to knock out

a part of the district budget. And we see this with house members who might be facing a really

tough primary where they're being challenged by say more conservative members and they want to

establish their conservative bonafides. And so they'll attack or try to remove a district funding

for things that conservatives are opposed to. That's probably the most likely out of the three.

And like you said, that's been a longstanding thing for the entirety of the home rule era.

But it's become, you know, this year there's there's a lot more of them and there are a lot

weirder in the sense of like messing around with like transportation regulations.

But look, reading the tea leaves, what do you see as the most likely scenario,

just sort of an agroversion of riders or what?

Yeah, it's a good question. It's really hard to make predictions in the current era in that

some pretty important parts of our constitutional system have begun to fail. And I mean,

that's, you know, it's happening at the national level. We see the abolition of the,

for as I said, the Department of Education without congressional statute. That's perhaps a problem

for the Department of Education, but it reflects a broader constitutional problem in that the

executive has now assumed powers of the legislature. This is a sort kind of a third grade checks and

balances thing that we're taught that that's now begun to fail. So what does this mean for the

district in this period of unconventional legislation? So I would expect to see this pattern

continue, but amplified in that it was the case of district riders, the specificities increasing

as you pointed out. Let's talk for a second about what it would actually practically day to day

mean if DC lost home rule. Do you have a sense of what would replace it? Would we go back to the

commissioners? Yeah, it's really hard to know what it would look like if home rule disappeared.

We have had home rule rolled back under the control board and through riders.

During the control board, if I recall correctly, there was a control board. They hired a

professional city manager who took over, I think, every part of the DC government took it away

from Barry except for the parks. But the home rule act did remain on the books, such that this,

I think, would be best understood as an administrative or a fiscal restriction on the districts of

authority. And that's different from abolishing the district of Columbia's government,

holy, the control board was set up as a temporary kind of override. And really Congress did this

because they didn't trust voters in the district after voters reelected Barry after his

federal imprisonment. So, you know, to the regional question, what repeal of the home rule act

would look like? It's not really clear. A repeal bill would have to establish some form of governance

in its stead to wholly fail to do that would be kind of a remarkable abdication of Congress's

authority over the district. But, you know, it would also be a moment when there are a lot of

sometimes crap butts, sometimes earnest, right-wing ideas about governing, about privatizing

schools, about ending abortion rights, etc. Which would, it would be, I imagine, quite hard for

some of these more ideological members of the House to not do these things. I could certainly

imagine if home rule repealed a situation in which the replacement included a basically long-term

statutory entrenchment of the writers that we've talked about. So, restriction of abortion rights,

expansion of school voucher programs, these kinds of writers are generally unpopular in the district

and really do affect the lives of district residents. So, a famous example is that the district

funded a needle-sharing program. This did reduce the rate of intravenously communicated diseases.

When Congress defunded the program, the rate of the disease communication and the death rate

went up right. Getting rid of the home rule act and creating these basically kind of legalizing

a lot of these writer policies indefinitely would probably have a similar effect. You know,

jurisdictions know best how to govern themselves and taking away the rights of district residents

to engage in self-government. It's not just kind of normatively a bad thing to do, but it also

can harm people. And there's also this that, you know, over the years that I've been a reporter here,

a lot of the sort of jerking around with the local government of DC by Congress has involved

things that are programs that benefit or focus on a very small percentage of the people. So,

poor women who need abortions, right? That's an important thing, but it's not sort of a

broad middle class or intravenous drug users or whatever. A lot of the stuff that would be quite

tempting, I would imagine, to ideological members of Congress would actually affect like congressional

staffers who send their kids to public, at least public elementary schools or who might need abortions

sometime even if they can pay for them. And I wonder if that would, you know, it would sort of be

like a virtual representation insofar as they'd have to run into these people in the hallways.

Yeah, that's an interesting point. So, you are correct that once Congress passed the Home

Rule Act, it really kind of gained, it retained authority over the district of Columbia most

directly in budgetary and fiscal concerns and often it exercised that by cutting federal funding

for district programs, the people who needed those programs in the district were often the people

who relied on federal or what would be state funding elsewhere, which is to say low income

people, it generally hurt TC's black majority or black plurality most. Now, if you got rid of

the Home Rule Act and you like left DC in a lurch without clear, say, trash collection

or without the clear authority to fund or empower garbage collectors, this would be a problem

for the Republican staffers who want to live in the Navy, our neighborhood, right, which is kind of

a slick new development for young transplants. All of the people who've been piling in from places

like Kansas and want the kind of things that come with living in the city might be disappointed to

find what it actually looks like to defund or wholly abolish the district government.

We're also in a moment when on the right, particularly on the tech world that has swung so hard

to the Trump movement, there is this sort of this world of like fantasies about if only you could

create your ideal city somewhere out there and it would be technologically run and we wouldn't

have to worry about all this democracy of people asking for irrational things. That is I think

currently part of the culture of the Trump coalition. It's not the entirety of it, but I wonder if

there would be a temptation to sort of live out some of that fantasy scenario stuff.

That's a really interesting hypothetical one I haven't heard. So it is true that Congress has

used throughout a district's history its own authority, its congressional authority to

basically experiment with different forms of government governance in the district of Columbia.

So there's a book by the historian Kate Maeser called an example for all of the land in which

Congress during reconstruction Republicans in Congress enfranchised black men. Congress

has used DC sometimes as an authority as a jurisdiction to test public policies that haven't been

instantiated elsewhere. Now what we've really seen from the last like 30 years is that Republican

members of Congress will just ask budget items that they don't want because they're worried about

re-election without thinking about public policy consequences. What would happen though if Donald

Trump and Elon Musk reunited they're both famously mercurial and then Elon Musk got pointed

permanent governor of the district of Columbia. I think that would be bad. District residents

should have the right to govern themselves and I think San Francisco doesn't really have a full

sense of just how big Washington is both I mean Washington is a city and then Washington is the

national government and I would guess that they probably will eventually get burned out and

they're attempt to take over the national government. The city government might be a little more

easy and you know your hypotheticals and interesting one I just I haven't thought about what

would happen if members of Congress used that authority to allow tech bros to kind of experiment

with our government. So listen you teach political science I'm curious what do you make of the way

Mayor Bowser is is handling this sort of unprecedented threat. What do you make of her tactics

defending home rule? Is there anything anything in history that might inform what she could do?

She is in an unusual place right so Trump's assaults on the rule of law in the United States

are new. The United States is moved from a period of democracy into what political scientists call

competitive authoritarianism. Our elections matter but you know the power is so centralized in the

hands of so few people that we now qualify as an authoritarian system. So it's really hard to know

what to do and how to kind of contest these forms of government that are really new this this

type of regime that's new in the United States. Bowser is in a difficult position so you might say

that you know this is kind of hypocritical or capitulatory. The counterpoint would be that the

district is solely and completely subject to the authority of Congress that they're you know

are not many legal forms of legal recourse that the district has and that the courts have largely

been hostile to claims from progressive petitioner so that you know even if Congress overextended

its authority courts probably wouldn't find in favor of the district. And then the final thing to

is that Congress at least the current Republican Congress really is abdicated its law-making

authority to Trump such that Trump as an individual really does hold all the cards and has

extraordinary authority over power over the lives of the three quarters of million people who

live in the district. Bowser isn't a pretty tough spot in this sense whether she's handled it

well or not I'll leave to listeners. So do you feel like the statehood conversation just to

circle back to the beginning? Is it just so far on the bat burner that it's not even worth talking

about? So Congress before last Democrats had to trifecta and the statehood built past the House

Biden signaled his intent to sign it. There were 46 senators signed on and really needed four more

to them said that if you know they and this is Kelly and King of Arizona and Maine that if there

was 50 votes in favor of it they'd get on board. So the real obstacles just four years ago were

just two people. Christian cinema of Arizona and Joe Manchin of West Virginia there were only two

votes that stopped statehood from happening and then you know had those two individuals been

feeling a little bit different we would probably now be talking about the inevitability of statehood

and the sort of 230 year strut all that brought us here. Now that didn't happen and Donald Trump won

he won the election pretty narrowly in 2024 Republicans retook both houses of Congress very narrowly

but Congress keeps flipping back and forth assuming that we have continued to have competitive

free elections at the national level assuming that we you know have a competitive and free

system I think Democrats will get a trifecta again I would say if you zoomed out that we're

closer to statehood then we have been in any other period but again there's no guarantee

that that'll happen right that that kind of remains to be seen. Right and it's none of these people's

top priority. Yeah the Democratic leadership including Senate Democratic leadership when they

had the majority didn't push for creation of two seats for the district even though those would

have likely been Democratic seats. Hey Robinson thank you so much for being here. Thank you for having

you. It was an absolute pleasure and that's all for today here on CityCast DC if you enjoyed

the show why not tell a friend rate the show leave us a review and subscribe to the morning

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