Academic

Why the DC House Seat Bill is Unconstitutional -- and Who has Standing to Challenge It

By Calvin Massey

     Kenneth Starr and Viet Dinh argue that the DC House seat bill is a valid exercise of congressional power to "exercise exclusive legislation in all cases whatsoever" concerning the federal district.  The support they offer for this proposition is thin indeed.  Congress, they say, can provide for the  general welfare of the District's residents "by any ... legislation which it may deem conducive to that end."  This means that Congress has a general police power with respect to legislation affecting the District, and is not confined to its specifically enumerated powers, but it does not mean that Congress gets to ignore equal protection, due process, or the First Amendment in doing so.  Nor may it ignore the House composition clause -- Article I, section 2 -- which clearly states that the House is composed of members chosen by the people of the states. 

        Starr and Dinh reply that Congress may extend federal diversity jurisdiction to encompass the District, even though Article III desribes this head of jurisdiction as cases "between citizens of different states."  That Congress may treat the citizens of the District as though they were citizens of a state for purposes of diversity jurisdiction does not mean that Congress may do so for all purposes.  A suit between a citizen of Maryland and a District citizen is not a suit between citizens of the same states, and diversity jurisdiction was intended to enable the federal courts to be a forum in which local prejudice is absent.  That intention is fully served by extending diversity jurisdiction to such suits.  It is not true, however, that constitutional intentions are served at all by allowing Congress to create a House seat for the District.  The point of creating a federal district was to insulate the federal government from state influence and to create an independent federal enclave.  See Federalist 43.  In that Federalist, Madison notes that the ceding states "will no doubt provide in the compact for the rights and the consent of the citizens inhabiting it."  Whether Maryland could permit District residents to vote in its state elections is another matter, but that is not before us.  

     Starr and Dinh next assert that because a federal court has declared that Congress could pursue the goal of congressional representation for the District through the "political process," this establishes the validity of the DC House seat bill.  Frankly, I can't believe that two skilled constitutional lawyers would make this argument.  Constitutional amendment is also a political process, and it is the process that is pertinent.  Slivers of dicta referring to the political process do not establish much of anything. 

    Finally, Starr and Dinh argue that because Congress in 1790 provided that District citizens may vote in congressional elections means that Congress can do so now.  Not if it was unconstitutional for Congress to so act in 1790.  One might also wonder why the intervening 220 years, which have witnessed an absence of any such voting, is not relevant to the discussion. 

    The District is not a state.  Congress cannot make it a state by simply calling it a state.  Nor may Congress declare that the District is a congressional district.  This contempt for the constitutional structure is appalling.  If President Obama signs this legislation, he should be condemned, along with Congress, for abdication of their obligation to preserve, protect, and defend the Constitution. 

    There are several possible entities with standing.  After Massachusetts v. EPA states have standing, as parens patriae, to secure the benefits of federal union to their citizens.  One of those benefits is a Congress composed of representatives of the states, and only the states.  A Congress that includes representatives from the federal district is not such a Congress.  Any state has standing to challenge the validity of the act.  It is also possible that members of the House have standing to challenge the validity of the act.  In Raines v. Byrd members of Congress lacked standing to challenge the Line Item Veto act on the ground that their votes were rendered ineffective, because their votes "were given full effect. They simply lost that vote."  But in this case, a House member's vote is not given full effect, because it is diluted by the vote of an imposter -- a "member" who is not entitled to be a member.  

Full post as published by The Faculty Lounge on March 14, 2009 (boomark / email).