Democrats: Constitution? What Constitution?

Congress is certain to approve a bill that will give the District of Columbia a voting representative in the House. The President has already said that he would sign such a bill. Such an act is plainly unconstitutional.

As the linked article points out, until now the District, along with various areas whose inhabitants are American nationals though not full citizens, has sent a delegate to the House. That delegate may vote in committee (itself a practice of dubious constitutionality, though it can be argued to be an internal procedural matter), but not as part of the House. The right to vote in the House and the Senate belongs to “members.” Article I, Sections 2 and 3 as amended by the 17th Amendment, require that these “members” be elected by the people of each “state” and be inhabitants of the “state” in which they are elected. Article I, Section 4, requires essentially that the “state” legislatures set the terms of election.

The District is not a “state.” It is true that the word “state” in the Constitution can have different meanings. But Article I, Section 8, cl. 17, of the Constitution very clearly distinguishes between the “District” and the “states” from which it might be carved. That clause also gives exclusive legislative power to Congress over the internal administration of the district. Put another way, Congress exercises the full “police (regulatory) power” over the District as well as an “organic power” to organize the District’s government. Congress has used those powers actively since at least 1801. Article I, Sections 1 and 8, as well as structural principles of federalism signified by the 10th Amendment, make it clear that Congress has no such power over the states.

In similar vein, Section 2 of the Fourteenth Amendment makes it clear that “Representatives shall be apportioned among the several States.”

Further, when the residents in the District were granted the power to participate in the election of presidents, the 23rd Amendment’s language made it crystal clear that the District is not a state. The amendment refers to the “District” that is to be entitled to electors equal to the number of Representatives and Senators it would have “if it were a State.” Moreover, “they shall be considered, for the purposes [of such election] to be electors appointed by a State.” That is not language that recognizes the District to be a state. Of course, the whole amendment would have been unnecessary if the District were a state.

It is noteworthy that it was considered necessary to have a formal constitutional amendment to give District residents the right to vote in presidential elections. A mere Congressional statute would not have been enough. Further still, the 23rd Amendment only gives the District votes in the electoral college. It does not give the District the right to participate, as states do, in voting pursuant to the 12th Amendment in the House of Representatives if no presidential candidate receives a majority of the electoral vote.

Another constitutional provision also undercuts the District’s status as a “state.” Article V of the Constitution, which controls the amendment process, requires “state” participation. The District has never been permitted to participate in amendment of the Constitution, yet further recognition of its distinct status.

The Supreme Court, too, has recognized the difference between the District and the states. In the recent Heller case, which addressed the District’s ban on private handgun possession and other firearms restrictions, the Court applied the Second Amendment. Since the Court has held for almost two centuries that the Bill of Rights only applies to the federal government, this decision rests on the premise that the District is a federal enclave, not a state. Were it a state, the Court would have analyzed the matter under the 14th Amendment, which does apply to states and their subdivisions. That is the principle driving the challenges to local handgun restrictions such as in Chicago. There are plenty of other precedents that show a similar judicial understanding of the constitutional status of the District.

“But,” say those who are not troubled by constitutional text, “This leaves the District’s residents unrepresented in Congress. No taxation without representation.” There are two responses, one constitutional, the other political.

On the constitutional issue, the Supreme Court in Term Limits v. Thornton struck down an Arkansas state constitutional amendment that imposed term limits on the state’s federal representatives and senators. The Court held that the state could not impose conditions on those representatives beyond those specifically enumerated in the Constitution. The reason? Those representatives may be elected by the people of Arkansas, but they represent the entire people of the United States, not just those of Arkansas. Therefore, any such change would have to be adopted by formal amendment of the U.S. Constitution. The thrust of that opinion is that the senators from Arkansas represent people who reside in California, Maine, Guam, Puerto Rico, and, presumably, in the District of Columbia. So, constitutionally speaking, the District’s residents are represented even if they cannot vote, under the Supreme Court’s adoption of the theory of “virtual representation.”

On the political side, it is easy to enable the District’s residents to vote for federal representatives and Senators. Just cede most of the territory back to Maryland. That was done once before, in 1846, when a large piece of the District was given back to Virginia. Then those residents could vote in Maryland elections for federal representatives and Senators. The part of the District that contains the main government buildings might be retained under federal control, but it is unlikely that there would be a significant number of people other than the President and Vice-President that would actually live in such a truncated area.

Although the statute is blatantly unconstitutional, the difficulty lies in challenging the action in the courts. One problem is that the courts are reluctant to inject themselves into such a political matter that is not readily susceptible of a judicial remedy other than a mere declaration of unconstitutionality. What, after all, can a court do? Say that any vote cast by such a representative taints the whole bill? The problem here vexes the usual manner of providing relief, even in the rare case where the courts have injected themselves in the internal administration of Congress.

“Standing” is another problem. Who, exactly, would have suffered a concrete and specific enough constitutional injury to be able to sue? A couple of possibilities come to mind. Under the Supreme Court’s reapportionment cases as well as other precedent (such as Bush v. Gore), a plaintiff has suffered a constitutional injury when his or her voting rights are diluted because the government’s unconstitutional action weighs the plaintiff’s votes differently than would be the case without the unconstitutional action. The problem with that theory is that it has been applied to differential treatment of voters that results from action within a single state, not from action by the federal government that affects different states.

The other theory is that a member of Congress has suffered a political injury because his or her vote is diluted as a result of the Congress’ action in adding the District’s “member.” However, the Court has been reticent to recognize such an injury, since the “injured” member can still perform his or her constitutional tasks. Worse, in the absence of a case where the District’s member casts a deciding vote on a bill that subsequently becomes law, it might be difficult for anyone to claim a justiciable injury that the courts will recognize.

Congress’ attempt to create a veneer of bipartisanship by giving a supposedly likely Republican seat to Utah is a constitutional red herring. Leaving aside the political possibility that the “Utah seat” will be given to another state after the next census, whereas the D.C. seat is fixed, the two seats are constitutionally different. Congress can fix individual states’ representation by statute. There is nothing in the Constitution that sets the maximum number of seats in the House of Representatives, or how many seats each state can have today above the constitutional minimum of one seat per state. After the federal government was established in 1788, Congress repeatedly modified the numbers of the states’ seats in the House of Representatives. So, Congress can change the total number of seats in the House. It can also fix a formula to determine the states’ representation. Changing Utah’s representation is not a constitutional problem; giving D.C. a seat is.

Congress is engaged in this flagrant constitutional violation because it cannot get a constitutional amendment adopted for D.C. statehood. The willingness of the Democrats to go against clear and specific constitutional text about a matter that does not deal with a momentous issue such as national security speaks volumes about their fidelity to that document in other contexts.