Biden may be forced to use his veto pen as Congress battles DC over softening of capital’s criminal code

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President Biden has never used his veto pen, but Congress could force his hand early next month.

The Senate is set to align with the House on a measure to block the Washington, D.C., city council from imposing what Republicans say is a softening of the District of Columbia’s criminal code.

Article I, Section 8 of the Constitution grants Congress the power to "exercise exclusive Legislation" over the District of Columbia. In other words, Congress serves as a super city council for the District of Columbia. However, lawmakers tempered some of that Congressional power in the 1970s, granting the city "home rule." This awarded D.C. a local city council and mayor. But Congress retained the right to intervene if it didn’t like how local Washington, D.C., policymakers decided things.

It has been more than 30 years since Congress overruled a local D.C. law via a resolution of disapproval. 

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Congress inserted itself into D.C. politics in 1990 when it big footed a plan for a large apartment complex in the city. The proposal violated the 1910 Congressional "Height of Buildings Act." That restricted all buildings to a maximum of 130 feet. The exception was a stretch of Pennsylvania Avenue and the White House. Buildings along that corridor may grow to 160 feet.

Congress also stepped in to disapprove of Washington’s Sexual Assault Reform Act in 1981. Prior to that, Congress crushed the city’s Location of Chanceries Act in 1979.

Republicans have meddled in local D.C. affairs since the GOP won the House in 1995.

But it’s rare that any measure to supplant local Washington, D.C., laws make it very deep in Congress.

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That could be about to change.

Crime is a white-hot issue in the country. And there’s a bipartisan coalition of lawmakers who oppose changes by the D.C. city council to its criminal laws.

The House voted in mid-February to reject D.C.’s controversial overhaul of the local criminal code. The D.C. city council wanted to require jury trials in misdemeanor cases and diminish penalties for robbery, burglary and carjackings. The House voted to disapprove of the D.C. plan 250-173. Thirty-one Democrats joined all Republicans in rebuking the city council. That included Rep. Angie Craig, D-Minn., who was mauled by an attacker in the elevator of her Washington, D.C., apartment on the morning of the vote. 

Usually such a measure would die in the Senate. But that may not be the case this time.

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D.C.’s home rule act allows for the Senate to go over the head of the Majority Leader and put a measure on the floor to reject action by Washington, D.C. City Council. All 49 Senate Republicans are expected to support the effort to reject the local D.C. policy. Anywhere from five to 10 Democrats could join them. That would send the measure to the President’s desk.

The District of Columbia Home Rule Act grants the Senate two paths to bypass filibusters to quash local laws. One course is specifically for measures pertaining to the city’s criminal code. The other route is for every other local code.

Early next week, the Senate Homeland Security Committee will likely vote to discharge to the floor a measure by Sen. Bill Hagerty, R-Tenn., to eclipse D.C.’s criminal justice revisions. That will take a simple majority despite Republicans being in the minority. If the committee successfully jettisons Hagerty’s measure, it goes to the floor for debate and a vote sometime around March 8-9.

Because of its very specific nature tailored to D.C., there is no way to successfully filibuster the bill from getting to the floor. Senate Majority Leader Chuck Schumer, D-N.Y., could slightly delay consideration of Hagerty’s plan by filling the Senate calendar with debate and votes on nominations. But that’s about it. The Senate must consider Hagerty’s plan soon after the committee dispatches it to the floor. 

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So, no filibuster. No 60 vote threshold to crack a filibuster. All it takes is a simple majority vote to pass the plan and align with the House. Then the package heads to President Biden’s desk for signature or veto. 

President Biden has zero vetoes to his credit at this stage of his presidency. Keep in mind that both the House and Senate were under Democratic control until January. Former President Trump issued his first veto on March 15, 2019 in relation to a bill about the border. But at that stage, the House had flipped to Democratic control after the GOP held the House during the first two years of Mr. Trump’s presidency.

Mr. Biden would find himself in a similar situation now. Democrats ran the House until January during the first two years of President Biden’s term. But now Republicans are in charge.

American Presidents have vetoed 2,584 pieces of legislation in the history of the republic. Congress has only overridden 112 vetoes in U.S. history. It takes a two-thirds vote by both bodies to override a presidential veto.

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It’s doubtful that Congress will have the wherewithal to override a prospective veto. It would require 67 senators to override. The Senate won’t get anywhere near that figure even if it has the votes to pass the underlying measure. In the House, 423 members cast ballots on the D.C. crime bill. That means 282 yeas are necessary to override the veto. The House isn’t within striking distance, either.

So it’s unlikely that Congress tramples on local control in DC when it comes to the criminal code revamp – even if the Senate syncs up with the House.

But it all hinges on President Biden producing his veto pen.

That scenario presents the GOP with a political opportunity.

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Republicans have long berated large American cities run by Democrats. This is augmented by spikes in crime. So a potential presidential veto on the D.C. plan falls conveniently into the Republican narrative that Democrats are "soft on crime." Republicans will suggest that Mr. Biden is willing to coddle Washington, D.C. – a place which is anathema to many Americans. 

Republicans can harp on other big cities run by Democrats all they want. But they can only take action in Washington, D.C.