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March 16, 2007
Would a Law Creating a Voting Congressman for the District of Columbia Be Unconstitutional, and If So, Who Has Standing to Challenge the Law?
Assuming the House, the Senate, and President sign on, or a veto-proof majority in Congress approve the bill, the question becomes whether the law is unconstitutional because it violates Article I, Sec. 2 of the Constitution -- which states:
The House of Representatives shall be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature.
It would seem pretty plain that the District of Columbia cannot have a voting member in the House for the simple reason that the D.C. is not a "state," as that term is used throughout Art. I. Moreover, Art. I, Sec. 8, Cl. 17 discusses Congress's power to create D.C. from land ceded to the U.S. by other "states." D.C., in terms of the Constitution's internal structure, would not appear to be a "state" for purposes of Art. I, Sec. 2.
Likewise, the Supreme Court has treated states and D.C. differently when it comes to the constitutional guarantees in the Bill of Rights. For example, in United States v. Moreland the Court held that the Fifth Amendment grand jury clause -- with its guarantee that all infamous crimes shall be charged by way of indictment -- applies to D.C. But, in Hurtado v. California, the Supreme Court said the Fifth Amendment's grand jury clause does not apply to the states -- that is, the "states" referred to in Art. I, Sec. 2 of the the Constitution.
Moreover, in District of Columbia v. Carter, the Supreme Court said very clearly that the District of Columbia is not a "state" for purposes of the Fourteenth Amendment. Sec. 1 of the Fourteenth Amendment of course provides that "No state shall . . . abridge the privileges and immunities of citizens of the United States; nor . . . deprive any person of life, liberty, or property without due process of law; nor deny any person within its jurisdiction the equal protection of the law."
So, who has standing to challenge such a law, if it passes, under Article III, Section 2 of the Constitution -- which, while framed as conferring jurisdiction in the federal courts over all "cases" and "controversies" arising under federal law, is the basis for requiring all plaintiffs in federal court to have, as decribed in Allen v. Wright, a personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief.
In Raines v. Byrd, the Supreme Court denied standing to four senators who challenged the Line-Item Veto Act, passed in March 1996, over those senators' objections. The Court rejected the senators' "diminution of legislative" power argument as a ground for standing by explaining that the any institutional injury to Congress was dispersed among all members and the plaintiffs had not been authorized to represent the Senate.
On the other hand, the Supreme Court did find standing for the plaintiffs to challenge the Line-Item Veto Act in Clinton v. City of New York. There, the president had exercised his authority under the Act and the plaintiffs had suffered a financial injury through the loss of funding.
So somewhere in between Raines and Clinton the question of standing falls. Certainly, all 50 states lose some federal legislative power by creating a 536th congressional seat. But that diminution is contained within the House of Representatives itself whose members all suffer equally.
Posted by shertaugh at March 16, 2007 10:49 AM
Comments
Not so fast, there. . .
Article I, Section 8, clause 17 of the Constitution gives Congress the power “[t]o exercise exclusive legislation in all cases whatsoever, over” the District of Columbia. This power has been interpreted broadly and certainly includes the power to give the residents of the District the right to vote in Congressional elections.
This interpretation is supported by voting rights that were accorded by Congress to the residents of the District of Columbia when it was first created in 1790 by cession of land from Maryland and Virginia. The Act of Congress that accepted the cession (Act of July 16, 1790, ch. 28, § 1, 1 Stat. 130.) provided that the laws of Maryland and Virginia would apply in the ceded land (which included the right to vote) until further action by Congress. Such further action did not occur until 1800 when Congress assumed the authority to legislate for the District. But in that decade, and by virtue of the District Clause, Congress provided a vote for the residents of the newly created district even though they were no longer a part of any state.
The District Clause has also been held to permit Congress to determine when rights normally accorded to “states” in the Constitution should be expanded to include the District of Columbia. Article III, Section II of the Constitution provides diversity jurisdiction over suits “between citizens of different states.” Congress passed a law extending diversity jurisdiction to include the District as a state for purposes of this clause. The Supreme Court upheld Congress’s power to do so in National Mutual Insurance Co. v. Tidewater Transfer Co., 337 U.S. 582 (1949), stating in the plurality opinion:
It is elementary that the exclusive responsibility of Congress for the welfare of the District includes both power and duty to provide its inhabitants and citizens with courts adequate to adjudge not only controversies among themselves but also their claims against, as well as suits brought by, citizens of the various states. . . . Congress is reaching permissible ends by a choice of means which certainly are not expressly forbidden by the Constitution.
Posted by: Clif Burns at March 16, 2007 3:26 PM
Other scholars say that the Constitution does actually give Congress the authority. Article I, Section 8, Clause 17 of the Consitution, which created the District and is commonly called the "District Clause," gives Congress plenary power over all matters regarding the District. I encourage you and your readers to peruse the piece, for example, submitted to the House's Committee on Government Reform by constitutional scholars Viet Dinh (of Georgetown Law) and Adam Charnes (a prominent attorney in private practice). That piece is called "The Authority of Congress to Enact Legislation to Provide the District of Columbia with Voting Representation in the House of Representatives." Readers can find links to this document and others explaining why the proposed legislation is indeed constitutional by follwing the link provided. - One of half a million District residents subject to taxation without representation.
Posted by: Bill Kellner at March 16, 2007 3:49 PM
The funny thing about this: I just took my "courts in a federal system" law school exam, and the question presented was very similar to your question.
You had to address standing, and then provide that in Tidewater, D.C. would be treated similarly to a state, and then it went on an on regarding the interplay of art. 1 and art. 3 courts.
Posted by: Robert at April 30, 2007 9:54 AM