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August 20, 2005
Dafydd: the Gentle Spear of Box 9

As part of Hugh Hewitt's quixotic quest to review the trillions of pages of infodump on John Roberts, I was assigned Box 9 -- the Barry Box. (Like the Captain, my assignment came not from Sir Hugh hughmself but from his scribe and factotum and all-around varlet, Duane the Radioblogger.)

This portion of Box 9 comprises a long and tedious negotiation between the D.C. Council and Mayor Marion Barry, jr. on the one side and Congress, the Justice Department, and the White House Counsel's office on the other over what was to be done about the District of Columbia Self Government and Governmental Reorganization Act of 1983 -- which Assistant Attorney General Robert A. McConnell injudiciously kept referring to as "the Home Rule Act," conjuring up visions of the British Raj finally ceding authority to its various colonies in Africa and Inja, don'tcha know. Rawther.

After the Act was enacted by Congress, the Supreme Court came along and voided "legislative veto" as unconstitutional. This was rather embarassing for Congress, as the Act was just full of it... of legislative veto, I mean. The five-part disharmony quadrille was meant to restructure the Act to avoid having Congress itself declared unconstitutional, or somesuch dire consequence. Compromises were thrown back and forth, and finally McConnell wrote draft letters to Mayor Barry and to the D.C. Council. (The task was to find some way, not involving legislative veto, for Congress to overrule any weird or cockamamie legislative acts by the District of Columbia.)

Enter Mr. Roberts (what's past is prologue). Roberts was assigned by his boss, White House Counsel Fred Fielding, to review McConnell's letter and the compromise offer for constitutionality and for its political implications to the White House.

Roberts consulted with the Office of Legal Counsel and agreed with them that the McConnell counter-counter-compromise was constitutional. He went on to advise that it was a considerably better compromise than the one just proposed by the D.C. Council... but he cautioned that the White House should steer clear of becoming too involved in the brouhaha; it was a matter for Justice, not the White House Counsel.

There is only one sentence in this entire box of memos that could be called remarkable; and the specific "remark" that it conjures into my mind is at last, somebody on the Supreme Court who can write without drooling dependent clauses and hacking up whereases and citations! Here is Roberts concluding sentence about the McConnell letters:

I will call the attorney at Justice handling this matter and suggest use of a more neutral sobriquet than "the Home Rule Act" in the Clarke and Rolark reply, and some stylistic changes to prevent the last sentence in the Clarke and Rolark letter, which also appears in the Barry letter, from reading as if it were an awkward translation from Bulgarian.

(For reference, the objectionable last sentence in the McConnell letter to which Roberts refers is: "It is the alternatives which our letter attempted to address and what our efforts should be directed toward." Im glad Judge Roberts understands that sentence; perhaps someday he can explain it to me.)

And that is the box, the whole box, and nothing but the box. Well, actually not; there are ten other sections to Box 9. But having blazed the trail this far, it must fall to others to carry on from here. For there are many Box 9s in the vasty deep, and many bloggers to slog through each soggy box of docs.

Here endeth the lesson.

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Posted by Dafydd at August 20, 2005 10:58 PM

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» Box 'O John Roberts Docs, Part 2 from Sue Bob's Diary
Update: Dafyd blogging at Captain's Quarters looked at another of the Chadha boxes and has more here. [Read More]

Tracked on August 21, 2005 12:18 PM



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