Views on Legislation Making the District of Columbia a Congressional District ( 2009 )

Views on Legislation Making the District of
Columbia a Congressional District
The District of Columbia Voting Rights Act of 2009 is unconstitutional.
Congress may not by statute give the District of Columbia voting representation in the
House.
The District of Columbia is not a “State” within the meaning of the Composition Clause,
which governs the membership of the House of Representatives.
The District Clause gives Congress broad power to legislate for the District, but it does
not permit Congress to override the prescriptions of the Composition Clause.
February 25, 2009
MEMORANDUM OPINION FOR THE ATTORNEY GENERAL
We have prepared the attached letter for transmittal to the Counsel to
the President.* The letter elaborates on comments the Office of Legal
Counsel, at the request of the Office of Management and Budget, recently
provided on H.R. 157 and S. 160, the House and Senate versions of the
District of Columbia Voting Rights Act of 2009. See E-mail for Adrien
Silas, Office of Legislative Affairs, from David Barron, Acting Assistant
Attorney General, Office of Legal Counsel, Re: H.R. 157 and S. 160, D.C.
House Voting Rights (Feb. 9, 2009). We have also prepared for transmittal
the attached executive summary of the constitutional analysis set forth in
the letter.
DAVID J. BARRON
Acting Assistant Attorney General
Office of Legal Counsel
* Editor’s Note: The Attorney General provided a different memorandum opinion to
the Counsel to the President. See Constitutionality of the D.C. House Voting Rights Act
of 2009, 33 Op. O.L.C. 38 (2009).
156
Views on Legislation Making the District of Columbia a Congressional District
EXECUTIVE SUMMARY
The attached letter addresses the constitutionality of the District of Co-
lumbia Voting Rights Act of 2009, which would give the District of
Columbia one voting member in the House of Representatives. The key
provision of the two bills now pending in Congress states: “Notwithstand-
ing any other provision of law, the District of Columbia shall be consid-
ered a Congressional district for purposes of representation in the House
of Representatives.”
In recent years, this Office has twice concluded that essentially identi-
cal legislation was unconstitutional. See Constitutionality of the D.C.
Voting Rights Act of 2007, 31 Op. O.L.C. 147 (2007) (statement of John
P. Elwood, Deputy Assistant Attorney General, Office of Legal Counsel);
E-mail for Velma Taylor, Office of Legislative Affairs, from Michelle
Boardman, Deputy Assistant Attorney General, Office of Legal Counsel,
Re: H.R. 5388, the District of Columbia Fair and Equal House Voting
Rights Act of 2006 (May 22, 2006). Although Congress had never until
recently sought to give the District voting representation without state-
hood, our analysis of related questions for at least 40 years makes clear
that our recent conclusions reflect the consistent and longstanding view of
the Office.
We have carefully reviewed the arguments that have been advanced in
support of the pending legislation, and we now reaffirm the Office’s
earlier conclusion. In so doing, we are mindful of the exceptionally strong
policy reasons for extending congressional voting rights to citizens of the
District. We further recognize that, in light of those policy considerations,
it has been argued that any doubts concerning the constitutionality of the
pending legislation should, if reasonably possible, be resolved in favor of
Congress’s authority to give citizens of the District a voice in the national
legislature. After conducting a careful and thorough review of all relevant
authorities, however, we conclude that the legislation is clearly unconsti-
tutional even under that demanding standard.
Constitutional text, structure, original understanding, historical prac-
tice, and judicial precedent support this Office’s longstanding view. The
key constitutional provision is the Composition Clause, which governs the
157
33 Op. O.L.C. 156 (2009)
membership of the House of Representatives. The Clause provides: “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 nu-
merous branch of the state legislature.” U.S. Const. art. I, § 2, cl. 1. The
repeated textual references to “states” or “state” in this Clause, when
combined with the numerous constitutional provisions relating to federal
elections that similarly restrict voting to “states” and their people, reflect
a clear intention to exclude non-state entities, such as the District, unless
the Constitution expressly provides otherwise. See U.S. Const. amend.
XXIII, § 1 (The District “shall appoint . . . [a] number of electors of
President and Vice President equal to the whole number of Senators and
Representatives in Congress to which the District would be entitled if it
were a State, but in no event more than the least populous State; they shall
be in addition to those appointed by the States, but they shall be consid-
ered, for the purposes of the election of President and Vice President, to
be electors appointed by a State; and they shall meet in the District and
perform such duties as provided by the twelfth article of amendment.”)
(emphasis added). Our conclusion is reinforced by powerful evidence that
the Framers regarded states as uniquely important components of the
federal constitutional structure. See Adams v. Clinton, 90 F. Supp. 2d 35,
56 (D.D.C. 2000) (“The Constitution’s repeated references to states . . .
are reflections of the Great Compromise forged to ensure the Constitu-
tion’s ratification. There is simply no evidence that the Framers intended
that not only citizens of states, but unspecified others as well, would share
in the congressional franchise.”). It is further confirmed by Founding-era
statements and subsequent historical practice.
Recent judicial authority affirms this same conclusion. In a thorough
and thoughtful opinion, a special three-judge panel of the United States
District Court for the District of Columbia relied on similar evidence from
text, history, and precedent to conclude that the District of Columbia is
not a “state” within the meaning of the Composition Clause. Adams, 90
F. Supp. 2d at 55–56 (“In sum, we conclude that constitutional text,
history, and judicial precedent bar us from accepting plaintiffs’ contention
that the District of Columbia may be considered a state for purposes of
congressional representation under Article I.”). That decision was sum-
marily affirmed by the Supreme Court. Adams v. Clinton, 531 U.S. 941158
Views on Legislation Making the District of Columbia a Congressional District
(2000); see also Hicks v. Miranda, 422 U.S. 332, 344–45 (1975) (sum-
mary affirmance is a precedential ruling on the merits).
Conceding that the District is not a “State” within the meaning of the
Composition Clause, some have argued that Congress may evade the
strictures of that Clause by invoking its power to “exercise exclusive
legislation in all cases whatsoever” over the District.” See U.S. Const.
art. I, § 8, cl. 17. Adams did not directly address this argument, but the
reliance on Congress’s authority under the District Clause to support
District voting representation in the House is not persuasive. The District
Clause gives Congress broad power to provide for the governance of the
District, but it does not allow Congress to “contravene any provision of
the Constitution.” Palmore v. United States, 411 U.S. 389, 397 (1973)
(quoting Capital Traction Co. v. Hof , 174 U.S. 1, 5 (1899)); accord
Keller v. Potomac Elec. Co., 261 U.S. 428, 443–44 (1923). Nor can the
Composition Clause reasonably be read to permit Congress to treat the
District as a “State” for purposes of representation in the House. Indeed, if
it could be so read, we see no principled basis for concluding that Con-
gress could not, by statute, give territories voting representation in the
House as well.
In arguing to the contrary, proponents of the pending legislation rely
heavily on National Mutual Insurance Co. v. Tidewater Transfer Co., 337
U.S. 582 (1949). That case held Congress may give Article III courts
jurisdiction over suits brought by citizens of the District of Columbia
against citizens of the several states, even though Article III expressly
confers diversity jurisdiction only over cases involving residents of
“States.” Thus, the proponents of this legislation contend, the Composi-
tion Clause similarly should not prevent Congress from giving the District
voting representation in the House, even though that Clause refers only to
“States” and not the District. As we explain in our letter, however, Tide-
water Transfer is not persuasive authority for that proposition. Indeed, a
close examination reveals that the two opinions supporting the judgment
in that case (neither of which drew support from more than three Justices)
do not support it. The other relevant judicial precedents provide further
support for our conclusion.
In sum, we conclude that Congress may not by statute give the District
of Columbia voting representation in the House. The relevant constitu-
159
33 Op. O.L.C. 156 (2009)
tional text, original understanding, historical practice, and judicial prece-
dent all clearly support the proposition that the District is not a “State”
within the meaning of the Composition Clause. The District Clause gives
Congress broad power to legislate for the District, but it does not permit
Congress to override the prescriptions of the Composition Clause.
LETTER
At the request of the Office of Management and Budget, the Office of
Legal Counsel recently provided comments on H.R. 157 and S. 160, the
House and Senate versions of the District of Columbia Voting Rights Act
of 2009. See E-mail for Adrien Silas, Office of Legislative Affairs,
from David Barron, Acting Assistant Attorney General, Office of Legal
Counsel, Re: H.R. 157 and S. 160, D.C. House Voting Rights (Feb. 9,
2009). In those comments, the Office set forth its conclusion that this
legislation is unconstitutional and offered to provide a further elaboration
of its reasoning upon request. I am now writing in response to your of-
fice’s request for a more detailed explanation of the basis for our constitu-
tional conclusion and further consideration of the constitutional argu-
ments of the proponents of the legislation. We have also enclosed a
separate, executive summary of our analysis for your convenience.
H.R. 157 and S. 160 would give the District of Columbia one voting
member in the House of Representatives. In particular, each bill includes
a provision stating: “Notwithstanding any other provision of law, the
District of Columbia shall be considered a Congressional district for
purposes of representation in the House of Representatives.” H.R. 157,
§ 2(a); S. 160, § 2(a). Significantly, neither bill purports to grant the
District statehood. Instead, each bill would grant the citizens of the Dis-
trict the authority to elect a voting member of the House of Representa-
tives by identifying it as a congressional district in its own right.
In recent years, this Office has twice concluded that essentially iden-
tical legislation was unconstitutional. See Constitutionality of the D.C.
Voting Rights Act of 2007, 31 Op. O.L.C. 147, 147 (May 23, 2007) (“D.C.
Voting Rights Act ”) (statement of John P. Elwood, Deputy Assistant
Attorney General, Office of Legal Counsel) (“S. 1257 violates the Consti-
tution’s provisions governing the composition and election of the United
States Congress.”); E-mail for Velma Taylor, Office of Legislative Af-
160
Views on Legislation Making the District of Columbia a Congressional District
fairs, from Michelle Boardman, Deputy Assistant Attorney General,
Office of Legal Counsel, Re: H.R. 5388, the District of Columbia Fair
and Equal House Voting Rights Act of 2006 (May 22, 2006) (“We con-
clude that the creation of a District of Columbia seat by this legislation is
unconstitutional. Membership in the House of Representatives is limited
to representatives elected by the people of the several States, and the
District of Columbia is not a State.”). And although until recently Con-
gress had never sought to give the District voting representation without
statehood, our analysis of related questions for at least 40 years makes
clear that our recent conclusions reflect the consistent and longstanding
view of the Office. See, e.g., Letter for Benjamin Zelenko, Committee on
the Judiciary, House of Representatives, from Martin F. Richman, Acting
Assistant Attorney General, Office of Legal Counsel (Aug. 11, 1967)
(explaining that “provisions for elections of Senators and Representatives
in the Constitution are stated in terms of the States, and the District of
Columbia is not a State”); Memorandum for Warren Christopher, Deputy
Attorney General, from Frank M. Wozencraft, Assistant Attorney Gen-
eral, Office of Legal Counsel, Re: Budget, Economic, and State of the
Union Messages (Oct. 16, 1968) (same); District of Columbia Representa-
tion in Congress: Hearing on S.J. Res. 65 Before the Subcomm. on the
Constitution of the S. Comm. on the Judiciary, 95th Cong. 16–29 (1978)
(testimony of John M. Harmon, Assistant Attorney General, Office of
Legal Counsel) (stating that, “[i]f the District is not to be a state, then an
amendment [to the Constitution] is required” to give the District voting
representation in Congress, as “we do not believe that the word ‘state’ as
used in Article I can fairly be construed to include the District under any
theory of ‘nominal statehood’”).
We have carefully reviewed the arguments that have been advanced in
support of the pending legislation, and we now reaffirm the Office’s
earlier conclusion. In so doing, we are mindful of the strong policy con-
siderations that have been advanced in support of the extension of con-
gressional voting rights to citizens of the District. There is no denying the
force of the considerations in favor of enfranchising District residents.
See, e.g., Loughborough v. Blake, 18 U.S. 317, 324 (1820) (conceding
that “in theory it might be more congenial to the spirit of our institutions
to admit a representative from the district,” but omitting any suggestion
that Congress might provide such representation by simple legislation);
161
33 Op. O.L.C. 156 (2009)
Adams v. Clinton, 90 F. Supp. 2d 35, 66 (D.D.C. 2000) (“We do not
disagree that defendants have failed to offer a compelling justification for
denying District residents the right to vote in Congress.”). We are also
aware that some have argued that these policy considerations are implicit
in the constitutional structure and that, in consequence, Congress should
be assumed to have the authority to enact the pending legislation unless
the Constitution clearly prohibits it. See Peter Raven-Hansen, Congres-
sional Representation for the District of Columbia: A Constitutional
Analysis, 12 Harv. J. on Legis. 167, 191 (1975) (“If no constitutional
purpose is served by exclusion of the District, the broader principles of
representative government which the Constitution is meant to effect favor
making the District a nominal state for purposes of congressional repre-
sentation.”); accord Ending Taxation Without Representation: The Con-
stitutionality of S. 1257: Hearing Before the S. Comm. on the Judiciary,
110th Cong. 18–22 (May 23, 2007) (S. Hrg. No. 110-440; Serial No.
J-110-38) (statement of Patricia Wald) (“Wald Statement”). Our view,
however, is that this proposed legislation would be unconstitutional even
if such a clear statement rule were appropriate in this context.
We begin by explaining that Section 2 of Article I of the Constitution,
known as the Composition Clause, bars Congress from giving the District
of Columbia the authority to elect a voting member of the House of Rep-
resentatives unless and until the District becomes a state.1 This conclusion
follows from the plain text of the Constitution and draws additional sup-
port from founding-era understandings, subsequent historical practice, and
judicial precedent. In the course of our discussion, we consider the main
arguments that have been offered as to why the text and the historical
evidence are not as clear as we believe them to be. We next consider the
arguments, offered by some prominent defenders of the proposed legisla-
tion, and similar versions of it, that the District of Columbia Clause in
Article I authorizes Congress to grant the District voting representation in
the House, notwithstanding the Composition Clause. Two of these argu-
ments merit particular consideration: (1) that Congress’s so-called “plena-
ry” power under the District Clause, U.S. Const. art. I, § 8, cl. 17, is such
1 We wish to be clear that although this Office has in the past opined that District citi-
zens’ voting rights can only be effected by constitutional amendment, we do not address
here whether and how Congress may, by statute, confer statehood on the District.
162
Views on Legislation Making the District of Columbia a Congressional District
that it may give the District the authority to elect a voting member of the
House even though the District is not a state, and cannot be treated as one,
for purposes of the Composition Clause; and (2) that Congress possesses a
more specific authority under the District Clause to treat the District as a
“state” for purposes of the Composition Clause, even if Congress does not
formally confer statehood on the District. We have carefully reviewed
each of these arguments and find neither to be sound. Accordingly, we
conclude that the proposed legislation is unconstitutional and therefore
reaffirm the Office’s consistent position that Congress may not give
District residents the authority to elect a voting member of the House of
Representatives, such as by denominating the District a “congressional
district,” because the District is not a state.
I.
We begin our analysis with a consideration of the text of the constitu-
tional provision governing the composition of the House of Representa-
tives. This provision, known as the Composition Clause, provides in full:
“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.” U.S. Const. art. I, § 2, cl. 1.
It has been suggested that by providing that voting members of the
House be chosen by “the people of the several states,” the Clause supplies
a plausible textual basis for concluding that Congress may give the Dis-
trict voting representation in the House, even though the District is not a
state. See, e.g., Wald Statement at 19 (“[I]t is the House that has been
identified as deriving its power from the people and not necessarily from
the States.”); see also Sen. Orrin G. Hatch. “No Right is More Precious in
a Free Country”: Allowing Americans in the District of Columbia to
Participate in National Self-Government, 45 Harv. J. on Legis. 287, 304
(2008) (arguing that the Constitution allows Congress by statute to give
the District voting representation in the House but not in the Senate be-
cause “the House was designed to represent people, whereas the Senate
was designed to represent states”). The argument is that the Clause con-
fers authority on “the people” rather than on the states, and so residents of
the District—part of “the people” of the United States as a whole—are not
163
33 Op. O.L.C. 156 (2009)
excluded from the scope of the Clause. This argument is reinforced by
those who contend that the use of the word “states” in the Clause should
not be deemed preclusive of constituencies that might encompass the
District. See Adams, 90 F. Supp. 2d at 97 (Oberdorfer, J., dissenting)
(concluding that “the literal references to the ‘States’ in Article I do not
necessitate denying to the people of the District the right to vote for
voting representation in the House of Representatives”); id. at 87 (“In
essence, the defendants would apply the maxim expressio unius est exclu-
sio alterius—the expression of one thing is the exclusion of another—as
the basis for interpreting the term ‘State.’ . . . As the Supreme Court has
explained, ‘The “exclusio” is often the result of inadvertence or accident,
and the maxim ought not to be applied, when its application, having
regard to the subject-matter to which it is to be applied, leads to incon-
sistency or injustice.’” (citation omitted)).
The text, however, does not bear this construction, particularly when
considered in context and in light of the constitutional structure. The
language itself seems clear in limiting the right to choose “members” of
the House to people from states. 2 Certainly nothing in the text of the
Composition Clause indicates that the people of an entity other than a
state may do so. The Composition Clause commands that representatives
be chosen by “the people of the several states,” not by “the people of the
United States.” U.S. Const. art. I, § 2, cl. 1. As such, the reference to “the
people” must be read in connection with the language that follows (“of the
several states”). For that reason, the language does not naturally suggest
the possibility that “people” who are citizens of non-state entities—such
as, for instance, the citizens of federal territories or of the District—would
have a constitutional right to choose House representatives. Instead, the
reference to “the people” is best read to underscore that members of the
House would be selected by popular vote within “the several states”
whereas members of the Senate would be selected (prior to the adoption
of the Seventeenth Amendment) by state legislatures. It is this critical
distinction that underlies the familiar description of the House of Repre-
sentatives as “the people’s house.”
2 For purposes of this letter we use the term “members” to refer to voting members,
where not otherwise modified, as the District of Columbia has a delegate to the House.
164
Views on Legislation Making the District of Columbia a Congressional District
Further language in the Composition Clause underscores the conclusion
that only the people of a state are empowered to choose members of the
House. Immediately after providing that members of the House shall be
chosen by “the people of the several States,” the Clause directs that the
electors in House elections “shall have the qualifications requisite for
electors of the most numerous branch of the state legislature.” U.S. Const.
art. I, § 2, cl. 1 (emphasis added). “[F]or most of its history,” however,
“the District of Columbia has had nothing that could even roughly be
characterized as a legislature for the entire District.” Adams, 90 F. Supp.
2d at 47; see also id. at 49 (“The impossibility of treating Congress as the
legislature under that clause is manifest, as doing so would mean that
Congress would itself choose the District’s senators.”). Likewise, the
same section of Article I provides: “When vacancies happen in the repre-
sentation from any State, the executive authority thereof shall issue writs
of election to fill such vacancies.” As the Adams court explained, this
provision would be anomalous as applied to the District. Leaving aside
the fact that the Mayor of the District is a relatively recent office, “it is
Congress that is the ultimate executive authority for the District.” Id. at
49. And “[t]he possibility that the Framers intended Congress to fill its
own vacancies seems far too much of a stretch, even if the constitutional
fabric were more flexible than it appears to be.” Id.; see also U.S. Const.
art. I, § 2, cl. 2 (“No person shall be a Representative . . . who shall not,
when elected, be an inhabitant of that State in which he shall be chosen.”)
(emphasis added).
Nor is this textual conclusion rooted merely in the provisions of the
original compact and thus perhaps the consequence of an outdated con-
struction that has been overtaken by understandings that have developed
over time. It is confirmed by a much more recent constitutional develop-
ment. Section 1 of the Twenty-Third Amendment, ratified in 1961, pro-
vides that the District “shall appoint . . . [a] number of electors of Presi-
dent and Vice President equal to the whole number of Senators and
Representatives in Congress to which the District would be entitled if it
were a state, but in no event more than the least populous state; they shall
be in addition to those appointed by the states, but they shall be consid-
ered, for the purposes of the election of President and Vice President, to
be electors appointed by a State; and they shall meet in the District and
perfonn such duties as provided by the twelfth article of amendment.”
165
33 Op. O.L.C. 156 (2009)
This text would serve no purpose if the District were already a state for
purposes of constitutional provisions governing federal elections.
We are aware of the argument that the Twenty-Third Amendment is not
as significant as it would appear to be. Judge Oberdorfer, for example, has
argued in dissent in Adams that “the suggestion that the understanding of
the people adopting a constitutional amendment in 1961 could confirm the
1787 understanding of the Framers of the Constitution appears to have no
precedent in constitutional interpretation.” 90 F. Supp. 2d at 98. That
argument might have some force if the historical evidence demonstrated
that “the 1787 understanding of the Framers” was that citizens of the
District would enjoy voting representation in Congress. In such an event,
one could argue that the understanding of the Framers should trump the
mistaken and contrary understanding of a later generation. As we explain
at greater length below, however, the evidence from the Founding era is
wholly consistent with the evident understanding of those who drafted and
ratified the Twenty-Third Amendment. But whether or not the Twenty-
Third Amendment is confirmatory of the original understanding, the
question at issue here is not whether the nation should be bound by what
happened to be the prevailing “understanding of the people adopting a
constitutional amendment in 1961”; it is whether a particular understand-
ing carries interpretive weight when it is embodied in the text of the
Constitution itself. Fidelity to constitutional structure is a well-established
canon of interpretation. See, e.g., McCulloch v. Maryland, 17 U.S.
(4 Wheat.) 316, 414–15 (1819); see generally Charles L. Black, Jr., Struc-
ture and Relationship in Constitutional Law (1969); Akhil Reed Amar,
Intratextualism, 112 Harv. L. Rev. 747 (1999). Accordingly, we cannot
agree with Judge Oberdorfer’s contention that an understanding expressly
and unambiguously codified in the text of one constitutional provision
may be entirely ignored when interpreting a related constitutional provi-
sion. Regardless whether one looks to Article I or the Twenty-Third
Amendment—and one should look to both—one arrives at the same
result: participation in federal elections and representation in the national
government, except where the Constitution expressly provides otherwise,
is limited to the people of the “states.”
It is clear, moreover, that the District is not a state. The District Clause
itself makes that much plain, see U.S. Const. art. I, § 8, cl. 17, and the
proposed bills do not purport to alter that fact. They do not, for example,
166
Views on Legislation Making the District of Columbia a Congressional District
entitle District residents to choose two senators, an essential aspect of
statehood. (The Framers did not merely give each state a right to be repre-
sented by two Senators; they deemed this aspect of the Great Compromise
so sacrosanct that they included in Article V of the Constitution a provi-
sion that purports to foreclose the possibility of a constitutional amend-
ment that would deprive any state of this right without its consent.) Nor
would these bills limit Congress’s authority to control the District’s
operations under the District Clause, even though states enjoy independ-
ent authorities pursuant to their own constitutions and do not, as the
District does, derive their powers from congressional enactments. Instead,
the bills seek only to make the District an independent congressional
district, untied to any state, and on that basis to give its “people” the
power to elect a voting member of the House. 3 But that is precisely what
the text of the Composition Clause precludes.
Those who argue in favor of the proposed legislation’s constitutionality
contend that the broader purposes of the Constitution are best served by
concluding that the Composition Clause would permit District residents to
have voting representation in the House. They argue that “the right to vote
3 The pending legislation’s conspicuous refusal to treat the District as a state, even for
purposes of representation in the House alone, is underscored by the provision limiting
the District’s representation in the House to a maximum of one member regardless of
population. Section 2(b)(1) of both bills would amend 2 U.S.C. § 2a, which governs the
apportionment of representatives, by inserting a new subsection (d), which would provide:
“This section shall apply with respect to the District of Columbia in the same manner as
this section applies to a State, except that the District of Columbia may not receive more
than one Member under any reapportionment of Members.” This provision raises serious
constitutional concerns in its own right. Section 2 of the Fourteenth Amendment in
relevant part provides: “Representatives shall be apportioned among the several States
according to their respective numbers, counting the whole number of persons in each
State, excluding Indians not taxed.” Even assuming that Congress could by statute treat
the District as a “state” for purposes of representation in the House, any such representa-
tion would be subject to the constitutional requirement that the number of representatives
assigned to each state be allocated on the basis of population. The pending legislation
would seem to violate that requirement, as it would provide that “the District of Columbia
may not receive more than one Member under any reapportionment of Members.” We
note that, under each bill’s non-severability provision, this constitutional infirmity would
threaten to render the entire legislation invalid. See S. 160, § 6(a) (“If any provision of
this Act or any amendment made by this Act is declared or held invalid or unenforceable,
the remaining provisions of this Act and any amendment made by this Act shall be treated
and deemed invalid and shall have no force or effect of law.”); H.R. 157, § 4 (same).
167
33 Op. O.L.C. 156 (2009)
is one of the most important principles of democracy.” Viet D. Dinh &
Adam H. Charnes, The Authority of Congress to Enact Legislation to
Provide the District of Columbia with Voting Representation in the
House of Representatives at 19 (Nov. 2004), https://www.dcvote.org/
sites/default/files/upload/vietdinh112004.pdf (“Dinh & Charnes”); see
also id. (noting that the right to vote is regarded as “a fundamental politi-
cal right, because preservative of all rights” (quoting Yick Wo v. Hopkins,
118 U.S. 356, 370 (1886)); Adams, 90 F. Supp. 2d at 73 (Oberdorfer, J.,
dissenting) (“‘No right is more precious in a free country than that of
having a voice in the election of those who make the laws under which, as
good citizens, we must live. Other rights, even the most basic, are illusory
if the right to vote is undermined.’” (quoting Wesberry v. Sanders, 376
U.S. 1, 17–18 (1964)). “Given these considerations,” it is argued, “depriv-
ing Congress of the right to grant the District Congressional representa-
tion pursuant to the District Clause thwarts the very purposes on which
the Constitution is based.” Dinh & Charnes at 19.
As important as these constitutional purposes are, however, the fact that
the plain terms of the Composition Clause give the people of the states,
and only those electors, the right to choose House members is not surpris-
ing or at odds with the central purposes of the founding charter. The
Framers clearly looked upon states as unusually important components of
the constitutional structure. As much as they created the Constitution to
forge a union, they regarded states as distinct and independent units of
government that were to play key roles in choosing the elected officers of
the federal government. As the Supreme Court has explained, the consti-
tutional framework governing representation was carefully designed to
protect the integrity of the states in our federal system. See, e.g., Garcia v.
San Antonio Metro. Transit Auth., 469 U.S. 528, 550–51 (1985) (“Apart
from the limitation on federal authority inherent in the delegated nature of
Congress’ Article I powers, the principal means chosen by the Framers to
ensure the role of the States in the federal system lies in the structure of
the Federal Government itself. It is no novelty to observe that the compo-
sition of the Federal Government was designed in large part to protect the
States from overreaching by Congress.”). Indeed, the Constitution ensures
that all states are on an equal footing out of respect for their independent
status. See Coyle v. Smith, 221 U.S. 559, 573 (1911) (“[W]hen a new state
is admitted into the Union, it is so admitted with all of the powers of
168
Views on Legislation Making the District of Columbia a Congressional District
sovereignty and jurisdiction which pertain to the original states, and []
such powers may not be constitutionally diminished, impaired, or shorn
away by any conditions, compacts, or stipulations embraced in the act
under which the new state came into the Union, which would not be valid
and effectual if the subject of congressional legislation after admission.”);
cf. U.S. Const. art. IV, § 3, cl. 1 (protecting against the possibility that the
federal government might merge two states into one by providing that a
new state may not “be formed by the junction of two or more states . . .
without the consent of the legislatures of the states concerned as well as
of the Congress”). In sum, we read the word “state” in the Composition
Clause as denominating a unique and significant status that is exclusive of
other constitutionally recognized political jurisdictions, such as the Dis-
trict, and that reading is entirely consistent with the constitutional struc-
ture. See Adams, 90 F. Supp. 2d at 49 (incongruity of giving Congress
itself the authority to fill its own vacancies militates against theory that
the District may be deemed a “state” for purposes of constitutional provi-
sions governing representation).
Indeed, every Clause in the original Constitution addressing the qualifi-
cations of the electors for national office—whether members of the
House, Senators, or the President—uses language that is similar to that in
the Composition Clause. See U.S. Const. art. I, § 3, cl. 1 (“The Senate of
the United States shall be composed of two Senators from each State,
chosen by the Legislature thereof ”); id. art. II, § 1 (“Each State shall
appoint, in such Manner as the Legislature thereof may direct, a Number
of Electors, equal to the whole Number of Senators and Representatives to
which the State may be entitled in the Congress” for purposes of electing
the President). Here, too, the Twenty-Third Amendment is confirmatory.
In providing that the District may play a role in the selection of the Presi-
dent, and thereby amending the rule established in Article II, Section 1
that presidential electors are appointed by “Each State” and meet in “their
respective States,” the Amendment specifically acknowledges that its
provision for electors from the District is an exception to the constitution-
al rule that the states alone (and the people of those states) may be in-
volved in determining the composition of the federal government. That
states and states alone (and their people) are mentioned in the original
composition provisions of the Constitution suggests a degree of intention-
ality on the part of the drafters that is hard to square with the conclusion
169
33 Op. O.L.C. 156 (2009)
that the people of a non-state, such as the District or federal territories,
may nonetheless exercise the power to choose members of the House.
Simply put, the Constitution, in providing for the selection of the political
branches of the national government, assigned a critical role to the inde-
pendent states, which stand at arm’s length from federal power in a way
that no other constitutionally recognized political jurisdictions do.
In this regard, it is worth noting that the Constitution itself identifies a
range of political entities—from tribes to enclaves to territories. Yet it is
states and states alone that are referred to in the original provisions pre-
scribing the selection of Senators, the President, and the members of the
House. If the Composition Clause were not read in the exclusive manner
we contend it must be, it would seem hard to argue that Congress could
not pursuant to its similarly broad authority under the Territories Clause,
U.S. Const. art. IV, § 3, cl. 2, provide all territories with representation in
Congress. See Jonathan Turley, Too Clever by Half: The Unconstitution-
ality of Partial Representation of the District of Columbia in Congress, 76
Geo. Wash. L. Rev. 305, 362–64 (2008) (explaining why logic of provid-
ing congressional representation to the District also applies to the territo-
ries). It has been argued that the District is unique, so that even if Con-
gress may by statute give the District voting representation in the House,
that legislative authority would not necessarily extend to providing the
territories and other non-state entities with such representation. See, e.g.,
Dinh & Charnes at 21 n.103. But once one opens the word “state” up for
interpretation to include the District, it is not at all clear what limiting
principle could be identified, as a matter of text or history, that would
preclude other non-state entities from fitting within the Composition
Clause. At the limit, then, Congress would be able to overwhelm the
representatives of the “people of the several states” with those represent-
ing political jurisdictions lacking the attributes of statehood.
To this point, our focus has been on arguments concerning the text of
the Composition Clause and its relationship to the broader constitutional
structure. The evidence we have reviewed from founding-era history,
however, also supports our conclusion that Congress may not give the
District voting representation in the House without making the District a
state. See generally Adams, 90 F. Supp. 2d at 50–53. The District was
created to serve the distinct purpose of protecting the national government
and its institutions. It was a direct reaction to the fact that the Continental
170
Views on Legislation Making the District of Columbia a Congressional District
Congress was effectively run out of Philadelphia by an angry mob and
received little assistance from Pennsylvania. To ensure that the federal
government would not be at the mercy of a state government’s willingness
to protect it in the future, it was determined that a special non-state feder-
al district be established. See id. at 50 n.25. That particular purpose—
maintaining the nation’s capital as a non-state entity—obviously does not
require that the District be denied voting representation in Congress. See,
e.g., Raven-Hansen, Congressional Representation for the District of
Columbia, 12 Harv. J. on Legis. at 184. But Founding-era statements
addressing the voting rights of residents of such a district—including
statements from prospective district residents themselves—clearly reveal
an understanding that citizens of the District would have no right to vote
in national elections, as they were not residents of a state. See, e.g., 10
Annals of Cong. 991, 998–99 (1801) (remarks of Rep. Dennis) (stating
that because of District residents’ “contiguity to, and residence among the
members of [Congress],” “though they might not be represented in the
national body, their voice would be heard”; “[b]ut if it should be neces-
sary [that they be represented], the Constitution might be so altered as to
give them a delegate to the General Legislature when their numbers
should become sufficient”); id. at 992 (remarks of Rep. Bird) (assigning
“blame” for disenfranchisement of District residents to “the men who
framed the Constitutional provision, who peculiarly set apart this as a
District under the national safeguard and Government”); 5 The Papers of
Alexander Hamilton 189–90 (Harold C. Syrett ed., 1962) (reprinting text
of subsequently rejected amendment proposed by Alexander Hamilton
during the New York ratifying convention: “That When the Number of
Persons in the District of Territory to be laid out for the Seat of the Gov-
ernment of the United States, shall according to the Rule for the Appor-
tionment of Representatives and Direct Taxes Amount to [left blank] such
District shall cease to be parcel of the State granting the Same, and Provi-
sion shall be made by Congress for their having a District Representation
in that Body.”) (emphasis added); see also 12 Annals of Cong. 487 (1803)
(remarks of Rep. Smilie) (“Under the exercise of exclusive jurisdiction
the citizens are deprived of all political rights, nor can we confer them.”);
5 The Documentary History of the Ratification of the Constitution 621
(Merrill Jensen, John P. Kaminski & Gaspare J. Saladino eds., 1976)
(statement of Samuel Osgood, delegate to the Massachusetts ratifying
171
33 Op. O.L.C. 156 (2009)
convention, that he could accept the Seat of Government provision only if
it were amended to provide that the District be “represented in the lower
House,” though no such amendment was ultimately included in the
amendments recommended by the Massachusetts convention); see gener-
ally Adams, 90 F. Supp. 2d at 51–53 (recounting this history).
Some scholars and commentators have argued that certain pieces of ev-
idence suggest a contrary understanding. In particular, some have pointed
to the fact that, in the interim period between Congress’s acceptance of
the District and Congress’s assumption of jurisdiction over the District,
those living in the physical territory that would become the District were
permitted to vote in Virginia or Maryland. See, e.g., Arjun Garg, Note, A
Capital Idea: Legislation to Give the District of Columbia a Vote in the
House of Representatives, 41 Colum. J.L. & Soc. Probs. 1, 21 (2007). But
at the time, such persons were still citizens of Virginia or Maryland, and
thus this history does not show that the people of the District possessed
voting rights that they have since lost. Instead, this history shows only
that these persons’ prospective status as District residents did not deprive
them of the constitutionally conferred right as the “people” of one of the
several states to choose members of the House under the Composition
Clause. See Raven-Hansen, Congressional Representation for the District
of Columbia, 12 Harv. J. on Legis. at 174 (“District residents did not lose
state citizenship until December, 1800, and the prior decade of voting and
representation provided no precedent for the representation of District
citizens.”). 4
Nor is there any evidence that this original understanding was called
into question over time. Although the movement to provide District citi-
4 Professor Raven-Hansen argues that it was an act of Congress, and not the constitu-
tional provisions limiting voting representation to “states,” that disenfranchised citizens
of the District. See Raven-Hansen, Congressional Representation for the District of
Columbia, 12 Harv. J. on Legis. at 174–79. The evidence adduced for this proposition
does not overcome the contrary indications in the constitutional text and history that a
non-state entity may not enjoy voting representation in Congress. Indeed, the court in
Adams considered this very evidence and concluded that “it is the Constitution itself that
is the source of [the District’s] voting disability.” 90 F. Supp. 2d at 62 (emphasis in
original); see also id. (“Thus, it was not the Organic Act or any other cession-related
legislation that excluded District residents from the franchise, something we agree could
not have been done by legislation alone.”).
172
Views on Legislation Making the District of Columbia a Congressional District
zens with some representation in the national legislature has a long histor-
ical pedigree, for most of the nation’s history proponents of such a view
“have assumed that District representation requires a constitutional
amendment.” Id. at 167. Thus, until very recently, no legislation compa-
rable to that at issue here was even proposed, much less acted upon.
Instead, members of Congress have consistently sought to give the Dis-
trict the right to vote in federal elections by way of at least three other
devices: retrocession; statehood; and constitutional amendment. The
history associated with such efforts, including the history underlying the
adoption of the 23rd Amendment, demonstrates that Congress itself
understood that the District is not a state and therefore may not enjoy
voting representation in Congress. See, e.g., Providing Representation of
the District of Columbia in Congress, H.R. Rep. No. 90-819, at 4 (1967)
(“If the citizens of the District are to have voting representation in the
Congress, a constitutional amendment is essential; statutory action alone
would not suffice. This is the case because provisions for elections of
Senators and Representatives in the Constitution are stated in terms of the
States, and the District of Columbia is not a State.”); H.R. Rep. No. 86-
1698 (noting that, absent a constitutional amendment, “voting rights are
denied District citizens because the Constitution provides machinery only
through the States for the selection of the President and Vice President,”
and observing that “apart from the Thirteen Original States, the only areas
which have achieved national voting rights have done so by becoming
States”). 5
5 The Uniformed and Overseas Citizens Absentee Voting Act (“OCAVA”) does not
provide a legislative precedent for the proposition that Congress may give voting repre-
sentation to a non-state entity such as the District. As supporters of the pending legisla-
tion have observed, see, e.g., Dinh & Charnes at 17–18, one provision of the Act purports
to give a U.S. citizen residing abroad the right to vote by absentee ballot in federal
elections if that citizen once was domiciled in a state and, but for the fact of overseas
residence, is otherwise qualified to vote in that state’s elections. See 42 U.S.C. § 1973ff-
1(a)(1) (“Each state shall . . . permit absent uniformed services voters and overseas voters
to use absentee registration procedures and to vote by absentee ballot in general, special,
primary, and runoff elections for Federal office.”); id. § 1973ff-6(5)(C) (defining “over-
seas voter” to include, among others, “a person who resides outside the United States and
(but for such residence) would be qualified to vote in the last place in which the person
was domiciled before leaving the United States”). Assuming this particular aspect of the
Act is constitutional—compare Romeu v. Cohen, 265 F.3d 118, 130–31 n.9 (2d Cir. 2001)
173
33 Op. O.L.C. 156 (2009)
Notwithstanding clear and substantial evidence of the original under-
standing that the District was not a state and therefore would not enjoy
voting representation in Congress, some have argued that the Framers
inadvertently neglected to provide for voting representation for the Dis-
trict. Because the absence of such representation did not and does not
serve any valid purpose, they argue, Congress should for practical reasons
be deemed to have the authority to correct this omission by statute. See,
e.g., Raven-Hansen, Congressional Representation for the District of
Columbia, 12 Harv. J. on Legis. at 191 (“[D]enial of congressional repre-
sentation to District residents was neither necessary to effect the constitu-
tional purpose nor desired by those involved. Rather the problem was not
clearly perceived until the damage was done.”); see also Dinh & Charnes
at 7 & n.22; Adams, 90 F. Supp. at 87 (Oberdorfer, J., dissenting) (“As the
Supreme Court has explained, ‘The “exclusion” is often the result of
inadvertence or accident, and the [expressio unius est exclusio alterius]
maxim ought not to be applied, when its application, having regard to the
subject-matter to which it is to be applied, leads to inconsistency or injus-
tice.’”) (citation and quotation marks omitted).
This argument is unpersuasive. First, the constitutional text limiting
representation in Congress to states “is not a case where ‘[t]he “exclu-
(Leval, J.), with id. at 134 n.7 (Walker, C.J., concurring); see also Memorandum for John
R. Bolton, Assistant Attorney General, Office of Legislative Affairs, from Douglas W.
Kmiec, Assistant Attorney General, Office of Legal Counsel, Re: H.R.4393, 99th Cong.,
The Uniformed and Overseas Citizens Absentee Voting Act (Aug. 22, 1986) (“The bill
raises on its face serious questions about the proper relations between the Federal gov-
ernment and the States in the delicate area of voting rights.”); Dinh & Charnes at 18 n.89
(“Since the [Act] was enacted in 1986, the constitutional authority of Congress to extend
the vote to United States citizens living abroad has never been challenged.”)—such a
precedent would at most suggest that Congress might have the authority to give some
citizens of the District (those who used to live in one of the states and would be qualified
to vote in that state’s elections but for the fact of their residence in the District) the right
to vote in that state’s elections for federal officers. Cf. Romeu, 265 F.3d at 129. Because
the OCAVA does not treat U.S. citizens living abroad as part of a non-state entity entitled
to its own representation in Congress, the Act cannot be cited as evidence that Congress
may create freestanding congressional districts that do not belong to any state but never-
theless enjoy representation in the national legislature. Cf. Att’y Gen. of Guam v. United
States, 738 F.2d 1017, 1020 (9th Cir. 1984) (“The OCAVA does not evidence Congress’s
ability or intent to permit all voters in Guam elections to vote in presidential elections.”)
(emphasis added).
174
Views on Legislation Making the District of Columbia a Congressional District
sion” is . . . the result of inadvertence or accident.’” Adams, 90 F. Supp.
2d at 56 (citation and quotation marks omitted). To the contrary, “[t]he
Constitution’s repeated references to states . . . are reflections of the Great
Compromise forged to ensure the Constitution’s ratification. There is
simply no evidence that the Framers intended that not only citizens of
states, but unspecified others as well, would share in the congressional
franchise.” Id.; see also D.C. Voting Rights Act, 31 Op. O.L.C. at 150
(provisions governing the composition of Congress “were the very linch-
pin of the Constitution, because it was only by reconciling the conflicting
wishes of the large and small States as to representation in Congress that
the Great Compromise that enabled the Constitution’s ratification was
made possible”).
Second, even if were true that the Framers inadvertently neglected to
give the District voting representation, it does not follow that they would
have intended to give Congress the power by simple majority vote to
manipulate the membership of the national legislature. We have not found
any evidence suggesting that the Framers thought Congress would or
should have such authority, and the centrality of the Great Compromise in
the drafting of the Constitution cuts the other way. See D.C. Voting Rights
Act, 31 Op. O.L.C. at 152 (“Given the great care with which the Framers
provided for State-based congressional representation in the Composition
Clause and related provisions, it is implausible to suggest that they would
have simultaneously provided for the subversion of those very provisions
by giving Congress carte blanche to create an indefinite number of addi-
tional seats [representing the territories and the federal enclaves] under
the [District] Clause.”).
Finally, proponents of the pending legislation argue in support of its
constitutionality by appealing to judicial precedent. Their primary conten-
tion is that affirmative precedent for their position exists in cases consid-
ering the District Clause, and we discuss this line of argument at consid-
erable length in the next section. The proponents are less forceful,
however, in contending that there is affirmative support for their position
in precedents interpreting the Composition Clause itself. Here, as we
explain, the available precedent is entirely consistent with the conclusion
that the Clause excludes non-state entities such as the District and pro-
vides no meaningful support for the contrary position.
175
33 Op. O.L.C. 156 (2009)
Most recently, in a thorough and thoughtful opinion, a three-judge pan-
el of the United States District Court for the District of Columbia (with
Judges Garland and Kollar-Kotelly in the majority and Judge Oberdorfer
dissenting) concluded that “the clauses of Article I that provide for con-
gressional voting [] are not applicable to residents of the District of Co-
lumbia.” Adams, 90 F. Supp. 2d at 65. The Supreme Court summarily
affirmed the ruling in Adams, turning aside the District’s argument that
Article I, Section 2 should be construed, in accord with broader democrat-
ic principles and purposes of the Constitution, to allow District citizens to
vote for a congressional representative. See Alexander v. Mineta, 531 U.S.
940 (2000); see also Hicks v. Miranda, 422 U.S. 332, 344–45 (1975)
(summary affirmance is a precedential ruling on the merits). 6 Because
Adams addressed the question whether the Constitution requires giving
the District representation, the court’s decision in that case does not
directly answer whether Congress might have the authority to confer such
electoral authority by legislation. See D.C. Voting Rights Act, 31 Op.
O.L.C. at 149 (emphasizing that “the courts have not directly reviewed the
constitutionality of a statute purporting to grant the District representation
because . . . Congress has not previously considered such legislation
constitutionally permissible”). Proponents emphasize that point by way of
suggesting that Adams is not of great significance as to whether Congress
6 In its appeal to the Supreme Court, the District of Columbia and 54 residents of the
District specifically contended (as the Adams plaintiffs in the companion case did not)
that citizens of the District have a constitutional right “to be counted as ‘People of the
several States’ for purposes of congressional representation” under Article I, Section 2.
Jurisdictional Statement at 10, Alexander v. Daley, 531 U.S. 940 (No. 99-2062). The
Solicitor General, on behalf of the federal Appellees, devoted virtually all of his Motion
to Affirm to the argument that citizens of the District are not among the “People of the
several States” under Article I, Section 2; and, in responding to the District’s primary
argument “that the Court should ‘reject[] the most literal reading of a constitutional
provision in favor of one that is more harmonious with the principles enunciated by the
document as a whole and in keeping with its underlying purposes,’” the Solicitor General
argued that “[d]eparting from the ‘most literal reading’ of the constitutional text in this
case would . . . lead to insurmountable textual difficulties and conflict with both historical
evidence and judicial precedent.” Motion to Affirm at 10–11, Alexander v. Mineta, 531
U.S. 940 (No. 99-2062). The Supreme Court summarily affirmed the decision of the
three-judge court in Adams, a decision that included the holding that the citizens of the
District are not among the “People of the several States” for purposes of Article I, Sec-
tion 2.
176
Views on Legislation Making the District of Columbia a Congressional District
may provide voting representation to the District. In fact, however, the
Adams court conducted an exhaustive analysis of the Composition Clause
itself and concluded that its references to “states” exclude the District
from its scope. Adams, 90 F. Supp. 2d at 62 (rejecting argument that
congressional legislation disenfranchised citizens of the District, conclud-
ing that “it is the Constitution itself that is the source of plaintiffs’ voting
disability,” and noting that “it was not the Organic Act or any other ces-
sion-related legislation that excluded District residents from the franchise,
something we agree could not have been done by legislation alone”)
(emphasis in original). Nor did the court suggest that the issue was close.
See id. at 56 (“[T]he overlapping and interconnected use of the term
‘state’ in the relevant provisions of Article I, the historical evidence of
contemporary understandings, and the opinions of our judicial forebears
all reinforce how deeply Congressional representation is tied to the struc-
ture of statehood. The Constitution’s repeated references to states cannot
be understood . . . as merely the most practical method then available for
holding elections. . . . There is simply no evidence that the Framers in-
tended that not only citizens of states, but unspecified others as well,
would share in the Congressional franchise.”).
Moreover, there are additional dicta in other cases indicating that Con-
gress cannot either expand the constitutional definition of “state” for
purposes of the Composition Clause or invoke one of its enumerated
authorities to avoid the strictures of that Clause by giving the District
some of the voting representation that the Constitution affords only to the
states. See, e.g., Michel v. Anderson, 623 F.3d 623, 630 (D.C. Cir. 1994)
(holding that House rule giving delegates from non-state entities authority
to cast certain non-decisive votes did not make those delegates “mem-
bers” of the House for purposes of the Composition Clause, but stating in
dictum that the Clause “precludes the House from bestowing the charac-
teristics of membership on someone other than those ‘chosen every sec-
ond Year by the People of the several States’”); Adams, 90 F. Supp. 2d at
50 (“[T]he Constitution does not contemplate that the District may serve
as a state for purposes of the apportionment of congressional representa-
tives.”); Michel v. Anderson, 817 F. Supp. 126, 140 (D.D.C. 1993) (“One
principle is basic and beyond dispute. Since the Delegates do not repre-
sent States but only various territorial entities, they may not, consistently
with the Constitution, exercise legislative power (in tandem with the
177
33 Op. O.L.C. 156 (2009)
United States Senate), for such power is constitutionally limited to ‘Mem-
bers chosen . . . by the People of the several States.’”) (emphasis added);
see also Banner v. United States, 428 F.3d 303, 309 (D.C. Cir. 2005)
(stating that the “Constitution denies District residents voting representa-
tion in Congress”) (emphasis added).
As noted above, the Supreme Court in Adams affirmed the District
Court’s holding that the District of Columbia is not a “state” within the
meaning of the Composition Clause. The Court has not had occasion to
address whether Congress may by statute give the District voting repre-
sentation in the House even though the District is not a “state” for purpos-
es of the Composition Clause. But insofar as it has discussed the issue in
dicta, it has without exception expressed the view that the District may
not choose elected federal officials, other than where expressly provided,
because it is not a state. See Loughborough, 18 U.S. at 324 (stating that
the District “voluntarily relinquished the right of representation”); Hep-
burn & Dundas v. Ellzey, 6 U.S. (2 Cranch) 445, 452–53 (1805) (suggest-
ing in dictum that the District is not a state for purposes of the Composi-
tion Clause).
We have not found any judicial authority suggesting, even in dictum,
that Congress might by statute treat the District as a state for purposes of
federal enfranchisement and representation in the House. The absence of
any such suggestion is revealing, particularly in those cases where courts
have acknowledged that the lack of voting representation for the District
is at odds with the nation’s democratic principles. See, e.g., Loughbor-
ough, 18 U.S. at 324 (conceding that “in theory it might be more congen-
ial to the spirit of our institutions to admit a representative from the dis-
trict,” but omitting any suggestion that Congress might provide such
representation by simple legislation); Adams, 90 F. Supp. 2d at 66 (“We
do not disagree that defendants have failed to offer a compelling justifica-
tion for denying District residents the right to vote in Congress.”).
II.
Proponents of the legislation advance two main arguments against this
formidable body of authority for the proposition that the Composition
Clause precludes giving the District voting representation in the House.
Each rests on a contention about Congress’s authority under the District
178
Views on Legislation Making the District of Columbia a Congressional District
Clause, U.S. Const. art. I, § 8, cl. 17, which gives Congress the power to
“exercise exclusive legislation in all cases whatsoever” over the District.
We address each of these arguments in turn.
The first argument would read the District Clause to, in effect, trump
the seemingly plain command of the Composition Clause. Proponents of
this argument begin with the premise that the District Clause “grants
Congress plenary and exclusive authority to legislate in all matters con-
cerning the District.” Dinh & Chames at 4. “This broad legislative author-
ity,” they contend, “extends to the granting of Congressional voting rights
for District residents,” regardless whether the District is a state within the
meaning of the Composition Clause. Id.
Pursuant to the District Clause, Congress has broad authority to “exer-
cise all the police and regulatory powers which a state legislature or
municipal government would have in legislating for state or local purpos-
es.” Palmore v. United States, 411 U.S. 389, 397 (1973). Congress’s
power under the Clause has been described as “plenary.” Id. But what
this means is simply that Congress has “all legislative powers that the
legislature of a state might exercise within the state.” Capital Traction
Co. v. Hof, 174 U.S. 1, 5 (1899). 7 As courts have repeatedly stressed,
Congress’s broad power to provide for the governance of the District does
not give it the authority to “contravene any provision of the Constitution.”
Palmore, 411 U.S. at 397 (quoting Hof , 174 U.S. at 5); see also Neild v.
Dist. of Columbia, 110 F.2d 246, 249 (D.C. Cir. 1984) (“Subject only to
those prohibitions of the Constitution which act directly or by implication
upon the federal government, Congress possesses full and unlimited
jurisdiction to provide for the general welfare of citizens within the Dis-
trict of Columbia by any and every act of legislation which it may deem
conducive to that end.”) (emphasis added).
Therefore, for example, the power of Congress in the District of Co-
lumbia is limited by the individual rights guarantees of the Federal Con-
stitution: Congress’s District Clause power does not give it the authority
to pass a bill of attainder or an ex post facto law, to dispense with trial by
jury, to establish a religion, or to abridge the freedom of speech. See
7 The word “exclusive” in the clause is to specify that the legislative power of Con-
gress over the District is not concurrent with that of the ceding states. See Dist. of Colum-
bia v. John R. Thompson Co., 346 U.S. 100, 109 (1953).
179
33 Op. O.L.C. 156 (2009)
Keller v. Potomac Elec. Co., 261 U.S. 428, 443 (1923) (“Subject to the
guaranties of personal liberty in the amendments and in the original
Constitution, Congress has as much power [under the District Clause] to
vest courts of the District with a variety of jurisdiction and powers as a
state legislature has in conferring jurisdiction on its courts.”). Nor can
Congress invoke its power under the District Clause to alter the structural
provisions of the Constitution, as Keller itself demonstrates. See 261 U.S.
at 444 (holding that the District Clause does not give Congress the author-
ity to vest “legislative or administrative jurisdiction” pertaining to the
governance of the District in Article III courts). Likewise, Congress may
not use its power to govern the District, no matter how “plenary” that
authority may be, to alter the constitutional prerequisites for representa-
tion in the national legislature itself—prerequisites that include the com-
mand that members of the House are to be chosen “by the people of the
several states.”
Proponents of the pending legislation argue, in the alternative, and
more persuasively, that even if the District Clause does not give Congress
the power to act in direct contradiction of an express constitutional limita-
tion or requirement, such as the one we believe is established by the
Composition Clause, the District Clause does give Congress the more
limited power to enact “legislation treating the District as a state, even for
constitutional purposes.” Dinh & Charnes at 4. In support of this argu-
ment, proponents of the legislation note that the term “state” may in some
contexts be interpreted to include the District. See Dist. of Columbia v.
Carter, 409 U.S. 418, 420 (1973) (“Whether the District of Columbia
constitutes a ‘State or Territory’ within the meaning of any particular
statutory or constitutional provision depends upon the character and aim
of the specific provision involved.”). Therefore, they argue, Congress
should at the very least be permitted to treat the District as a state for
purposes of the Composition Clause, particularly given that doing so
would enfranchise citizens of the United States who would otherwise be
denied the right to vote for a voting member of the House.
The most relevant case concerning Congress’s authority under the Dis-
trict Clause, and the case on which proponents of the pending legislation
most heavily rely, is National Mutual Insurance Co. v. Tidewater Trans-
fer Co., 337 U.S. 582 (1949). There, a fractured court held that Congress
may give Article III courts jurisdiction over suits brought by citizens of
180
Views on Legislation Making the District of Columbia a Congressional District
the District of Columbia against citizens of the several states, even if
those suits do not involve a federal question or any of the other non-
diversity-related heads of federal jurisdiction spelled out in section 2 of
Article III. One of the four opinions in the case, authored by Justice
Jackson and joined by two other Justices, concluded that Congress could
use its authority under the District Clause to authorize Article III courts
to hear such cases, even though, in Justice Jackson’s view, such jurisdic-
tion was not part of the federal judicial power as defined in Article III.
See id. at 588, 600. Two other Justices concurred in the judgment but
specifically rejected Jackson’s broad view of Congress’s power under the
District Clause; those two justices would have upheld the statute on the
ground that by operation of the Constitution itself the District is a state for
purposes of the provision of Article III that extends the federal judicial
power to controversies between citizens of different “states.” See id. at
604–06, 625–26 (Rutledge, J., concurring). Unlike Justice Jackson’s
plurality opinion, Justice Rutledge’s opinion argued that the statute at
issue was constitutional by rejecting the Court’s longstanding view re-
garding the meaning of the term “state” for purposes of the diversity
jurisdiction provision of Article III. See Hepburn & Dundas v. Ellzey,
6 U.S. (2 Cranch) 445 (1805) (holding that statute giving federal courts
jurisdiction over disputes between citizens from different states did not
give those courts jurisdiction over a case between a citizen of the District
and a citizen of one of the several states, based on conclusion in dictum
that the meaning of the term “state” as used in Article III and other consti-
tutional provisions did not include the District).
At first glance, the Jackson opinion might seem to provide a precedent
for holding that Congress may use its power under the District Clause to
give citizens of the District representation in Congress. His opinion was
the only one in the majority to attract as many as three votes (including
his own). Moreover, that opinion reasoned that the statute at issue in
Tidewater Transfer effectively added an additional head of federal juris-
diction to those specifically enumerated in Article III. If Congress’s
power to legislate for the District may be used to expand the scope of
federal jurisdiction under Article III, proponents of voting representation
for District residents in the House have suggested, it should be reasonable
to suppose that the same power may likewise be used to expand the basis
of voting representation in Congress under Article I. Indeed, legislation
181
33 Op. O.L.C. 156 (2009)
giving citizens of the District voting representation would seem to right a
much more serious wrong, and to vindicate a much more fundamental
principle, than the law at issue in Tidewater Transfer. Compare id. at 651(Frankfurter, 1., dissenting) (“Concededly, no great public interest or
libertarian principle is at stake in the desire of a corporation which hap-
pens to have been chartered in the District of Columbia, to pursue its
claim against a citizen of Maryland in the federal court in Maryland on
the theory that the right of this artificial citizen of the District of Colum-
bia cannot be vindicated in the State courts of Maryland.”), with Wesberry
v. Sanders, 376 U.S., 17–18 (1964) (“No right is more precious in a free
country than that of having a voice in the election of those who make the
laws under which, as good citizens, we must live. Other rights, even the
most basic, are illusory if the right to vote is undermined.”); Yick Wo v.
Hopkins, 118 U.S. 356, 370 (1886) (“the political franchise of voting . . .
is regarded as a fundamental political right, because preservative of all
rights”).
Framed at a high level of generality, then, the analogy to the Jackson
opinion in Tidewater Transfer seems both appealing and superficially
plausible. On deeper analysis, however, it becomes clear that the Jackson
opinion in Tidewater Transfer does not provide persuasive authority for
the constitutionality of the pending legislation.
Most importantly, the rationale underlying Justice Jackson’s opinion
is not a controlling holding of the Court. Six Justices in Tidewater Trans-
fer expressly rejected Justice Jackson’s theory that Congress’s power to
legislate under the District Clause enables it either to give content to, or
else to circumvent the constraints of, the term “state” as used in a consti-
tutional provision. 8 Given that two-thirds of the Justices in Tidewater
8 See id. at 605 (Rutledge, J., concurring, joined by Justice Murphy) (“The Constitution
is not so self-contradictory. Nor are its limitations to be so easily evaded.”); id. at 607 (“I
think that the Article III courts in the several states cannot be vested, by virtue of other
provisions of the Constitution, with powers specifically denied them by the terms of
Article III.”); id. at 626 (“I am not in accord with the proposed extension of ‘legislative’
jurisdiction under Article I for the first time to the federal district courts outside the
District of Columbia organized pursuant to Article III, and the consequent impairment of
the latter Article’s limitations upon judicial power . . . . That extension, in my opinion,
would be the most important part of today’s decision, were it accepted by a majority of
the Court. It is a dangerous doctrine which would return to plague both the district courts
182
Views on Legislation Making the District of Columbia a Congressional District
Transfer disapproved the Jackson rationale, the case cannot be said to
hold that Jackson’s theory is valid. See The Congressional Pay Amend-
ment, 16 Op. O.L.C. 87, 93 n.11 (1992) (explaining that when the Su-
preme Court issues a splintered decision, an opinion does not constitute
the holding of the case unless it “‘embod[ies] a position implicitly ap-
proved by at least five Justices who support the judgment’”) (quoting
King v. Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991)); cf. Seminole Tribe
of Fla. v. Florida, 517 U.S. 44, 66 (1996) (previous decision was of
“questionable precedential value, largely because a majority of the Court
expressly disagreed with the rationale of the plurality”). It therefore is not
surprising that, as far as we are aware, no court has ever relied on Justice
Jackson’s opinion as the holding of the case, or as precedential authority
for the proposition that Congress may, in other contexts, invoke its power
under the District Clause to circumvent otherwise applicable constitution-
al constraints. 9
Moreover, even if Justice Jackson’s opinion were of some precedential
effect, two aspects of the reasoning of that opinion suggest that it would
not extend to support Congress’s use of its power under the District
Clause to alter the structure of congressional representation.
and ourselves in the future, to what extent it is impossible to say.”); id. (Vinson, J.,
dissenting, joined by Justice Douglas) (“I agree with the views expressed by Mr. Justice
Frankfurter and Mr. Justice Rutledge which relate to the power of Congress under Art. I
of the Constitution to vest federal district courts with jurisdiction over suits between
citizens of States and the District of Columbia.”); id. at 652 (Frankfurter, J., dissenting,
joined by Justice Reed) (“To find a source for ‘the judicial Power,’ therefore, which may
be exercised by courts established under Article III of the Constitution outside that Article
would be to disregard the distribution of powers made by the Constitution.”); id. at 655(“[T]he cases to which jurisdiction may be extended under Article III to the courts
established under it preclude any claim of discretionary authority to add to the cases listed
by Article III or to change the distribution as between original and appellate jurisdiction
made by that Article.”).
9 Shortly after Tidewater Transfer, courts characterized that case as holding only that
the statute at issue in that case was constitutional—not that the statute was permissible as
an exercise of Congress’s authority under the District Clause. See, e.g., Siegmund v. Gen.
Commodities Corp., 175 F.2d 952, 953 (9th Cir. 1949) (“The National Mutual case
upheld the constitutionality of the Act involved here as applied to an action between a
citizen of the District of Columbia and a citizen of a state.”); accord Detres v. Lions Bldg.
Corp., 234 F.2d 596, 603 (7th Cir. 1956) (adopting Siegmund’s understanding of “what
was actually held by the Supreme Court” in Tidewater Transfer).
183
33 Op. O.L.C. 156 (2009)
First, Justice Jackson repeatedly stressed that Congress’s decision to
extend diversity jurisdiction to cases involving citizens of the District
would not “substantially disturb the balance between the Union and its
component states.” Tidewater Transfer, 337 U.S. at 585. Nor, perhaps,
would a mere addition to the number of representatives in Congress
compromise that balance. But a law expanding the categories of represen-
tation in Congress to include non-state entities would implicate the “bal-
ance between the Union and its component states” to a much greater
extent than the extension of diversity jurisdiction to cases involving
District residents. See id. (“This constitutional issue affects only the
mechanics of administering justice in our federation. It does not involve
an extension or a denial of any fundamental right or immunity which goes
to make up our freedoms.”); see also Adams, 90 F. Supp. 2d at 56 (“[T]he
overlapping and interconnected use of the term ‘state’ in the relevant
provisions of Article I, the historical evidence of contemporary under-
standings, and the opinions of our judicial forebears all reinforce how
deeply Congressional representation is tied to the structure of state-
hood.”); D.C. Voting Rights Act, 31 Op. O.L.C. at 150 (provisions govern-
ing the composition of Congress “were the very linchpin of the Constitu-
tion, because it was only by reconciling the conflicting wishes of the large
and small States as to representation in Congress that the Great Compro-
mise that enabled the Constitution’s ratification was made possible”).
Thus, the rationale of the Jackson opinion, by its own terms, would not
seem to encompass the pending legislation.
Second, Justice Jackson relied upon on a pragmatic argument for ex-
tending diversity jurisdiction that would not apply here. In particular,
Justice Jackson assigned great weight to the fact that Congress concededly
enjoyed analogous authority that as a practical matter was indistinguisha-
ble from the power at issue in the case. As Justice Jackson explained, the
parties agreed that Congress could use its Article I power to create courts,
located inside and outside the District, with jurisdiction over cases be-
tween citizens of the District and citizens of the several states. The only
question, then, was whether Congress had to create two distinct categories
of courts across the country—one consisting of Article I courts empow-
ered to hear diversity cases involving residents of the District, and one
consisting of Article III courts authorized to hear all other cases. Justice
Jackson saw no good reason for forcing Congress to maintain two sepa-
184
Views on Legislation Making the District of Columbia a Congressional District
rate systems; in his view, practical reasons supported the conclusion that
Congress had discretion to combine both functions in the same courts. See
id. at 585, 602. The statute Congress enacted in that case, in other words,
had very little practical effect, in light of other statutes that Congress
concededly could have enacted. 10 Giving residents of the District voting
representation in Congress, however, is not analogous in this respect;
here, unlike in Tidewater Transfer, it is very much disputed whether
Congress has any authority to alter by simple legislation the structure of
congressional representation.
Justice Rutledge’s two-Justice opinion also cannot be relied upon as
authority to support this legislation. It, too, was adopted by a minority of
the Court, and the theory itself was rejected by the remaining seven Jus-
tices. Moreover, Justice Rutledge’s theory—that the constitutional provi-
sion conferring diversity jurisdiction included the District in its reference
to cases between citizens of different “states”—was clause-specific and,
as he himself explained, would not extend to the meaning of the term
“state” as used in the Composition Clause. Id. at 619, 623 (Rutledge, J.,
concurring) (concluding that the term “state,” as used in the Article III
provision providing for diversity jurisdiction, should be understood to
include the District, but suggesting that the term should not be so defined
for purposes of constitutional provisions “relating to the organization and
structure of the political departments of the government,” expressly in-
cluding the provisions of Article I pertaining to the composition of Con-
gress).
10 See id. at 602 (“We could not of course countenance any exercise of this plenary
power [under the District Clause] either within or without the District if it were such as to
draw into congressional control subjects over which there has been no delegation of
power to the Federal Government. But as we have pointed out, the power to make this
defendant suable by a District citizen is not claimed to be outside of federal competence.
If Congress has power to bring the defendant from his home all the way to a forum within
the District, there seems little basis for denying it power to require him to meet the
plaintiff part way in another forum. The practical issue here is whether, if defendant is to
be suable at all by District citizens, he must be compelled to come to the courts of the
District of Columbia or perhaps to a special statutory court sitting outside of it, or whether
Congress may authorize the regular federal courts to entertain the suit. We see no justifi-
cation for holding that Congress in accomplishing an end admittedly within its power is
restricted to those means which are most cumbersome and burdensome to a defendant.”).
185
33 Op. O.L.C. 156 (2009)
While acknowledging that neither Justice Jackson’s view of Congress’s
power under the District Clause nor Justice Rutledge’s view of the mean-
ing of state in Article III commanded the support of a majority of the
Court, some commentators argue that “[t]he significance of Tidewater” to
pending legislative efforts to give the District voting representation in the
House “is that the five justices concurring in the result believed either that
the District was a state under the terms of the Constitution or that the
District Clause authorized Congress to enact legislation treating the Dis-
trict as a state.” Dinh & Charnes at 13; see also Hatch, No Right is More
Precious, 45 Harv. J. on Legis. at 301 (quoting The Authority of Congress
to Enact Legislation to Provide the District of Columbia with Voting
Representation in the House of Representatives: Hearing Before the H.
Comm. On Government Reform, 108th Cong. 13 (2004) (statement of Viet
D. Dinh, Professor, Georgetown University Law Center, and Adam
Charnes, Partner, Kilpatrick Stockton L.L.P.)). On this view, the Court
might rely on Tidewater Transfer in justifying a decision to reach the
similar conclusion that the Composition Clause either implicitly includes
the District as one of several “states” or at least does not necessarily bar
Congress from exercising its authority under the District Clause to treat it
as a state for purposes of that clause.
This argument fails, we believe, for a number of reasons. As we have
explained, both theories supporting the particular statute in Tidewater
Transfer were rejected by a majority of the Court in that case, and thus
neither is part of the holding of the case. The fact that at one particular
point in time five of the nine Justices then sitting on the Court would have
embraced one of the two theories—although no more than three Justices
accepted either one—does not mean that either theory can be viewed as
governing authority in a different context. Indeed, each of the opinions
from Tidewater Transfer that arguably provides support rested on a theory
that, by its own terns, would not cover the Composition Clause, given its
important function in establishing the nation’s political structure. In sum,
Tidewater Transfer does not provide authority in support of the constitu-
tionality of the pending legislation. Six of the nine Justices in the case
unambiguously rejected the theory that the District Clause might be used
to circumvent constitutional constraints on the scope of federal judicial
power; and the remaining three Justices, so far as one can tell from the
reasoning set forth in their opinion, most likely would not have approved
186
Views on Legislation Making the District of Columbia a Congressional District
the substantial extension of their theory that would be needed to sustain
the constitutionality of the legislation at issue here. Rather, the most that
can be said in support of the Tidewater Transfer analogy is that Justice
Jackson’s opinion articulates a theory that would offer a plausible basis
for the pending legislation if that theory, in either Tidewater Transfer or
later cases, had been (1) accepted as valid constitutional doctrine and (2)
extended in a way Justice Jackson very likely would not have approved.
Although commentators arguing that Congress may statutorily grant the
District voting representation in the House rely largely on Tidewater
Transfer, they do also cite a number of other cases. They contend these
cases support the proposition that Congress’s power under the District
Clause allows it, by statute, to treat the District as a state for purposes of
various constitutional provisions. See, e.g., Dinh and Charnes at 9–17
(discussing cases and concluding that “Congress can legislate to treat the
District as a state for purposes of Article I representation” even though
“[t]he District is not a state for purposes of . . . Article I, section 2,
clause 1”); Hatch, No Right is More Precious, 45 Harv. J. on Legis. at 300
(citing cases for proposition that “Congress may extend to the District
through legislation what the Constitution applies to the states”); Garg, A
Capital Idea, 41 Colum. J.L. & Soc. Probs. at 20 (“In various instances in
which the District or its residents have asserted rights under the Constitu-
tion, courts have held that this specific constitutional grant of congres-
sional authority over the District is so strong that it trumps the ordinary
application of other constitutional provisions.”); Lawrence M. Frankel,
Comment, National Representation for the District of Columbia: A Legis-
lative Solution, 139 U. Pa. L. Rev. 1659, 1679–83 (1991) (same).
None of the Supreme Court cases cited by those commentators, howev-
er, holds or implies that Congress’s power to legislate for the District
gives it the authority to define the term “state” to include the District for
purposes of any particular constitutional provision (let alone Article I,
Section 2). Nor can any of those cases be cited for the proposition that
Congress’s power under the District Clause enables it to circumvent
otherwise applicable constitutional constraints. Some of the cases cited by
supporters of the pending legislation stand for the unremarkable proposi-
tion that the term “state,” as used in certain statutes and treaties, should be
understood to include the District. See, e.g., Geofroy v. Riggs, 133 U.S.
258, 272 (1890) (holding that the District is one of “the States of the
187
33 Op. O.L.C. 156 (2009)
Union” for purposes of a particular consular convention with France). 11
Other of the cases on which the proponents of the legislation rely argua-
bly imply that the term “state,” as used in constitutional provisions other
than those governing the composition of the House, includes the District
independent of any congressional action. See, e.g., Stoutenburgh v. Hen-
nick, 129 U.S. 141, 148–49 (1889) (holding that Congress did not purport
to delegate to the local government of the District the power to regulate
interstate commerce but arguably proceeding on the assumption that the
District is a state within the meaning of the Commerce Clause); Callan v.
Wilson, 127 U.S. 540, 548–51 (1888) (holding that citizens of the District
are covered by the constitutional provisions concerning the right to a jury
trial in criminal cases). Because, as noted above, the District is not a
“state” for purposes of Section 2 of Article I, these latter authorities,
concerning distinct constitutional provisions not “relating to the organiza-
tion and structure of the political departments of the government,” Tide-
water Transfer, 337 U.S. at 619, do not support the constitutionality of the
pending legislation.
Our understanding of the scope of Congress’s authority under the
District Clause is also wholly consistent with Loughborough v. Blake,
18 U.S. 317 (1820). In that case, the Court held that Congress has the
authority to impose a direct tax on the District of Columbia. Section 2 of
Article I provides that “direct taxes shall be apportioned among the sever-
al states which may be included within this Union, according to their
respective numbers.” Because the District is not a “state,” it was argued
in Loughborough that Congress lacked the power to tax citizens of the
District. The Court rejected this contention because other provisions of
the Constitution give Congress broad power to lay taxes and do not say or
11 Some other cases on which commentators rely hold that the District is not a state
within the meaning of certain statutes. Dist. of Columbia v. Carter, 409 U.S. at 419(“[W]e hold that the District of Columbia is not a ‘State or Territory’ within the meaning
of § 1983.”); Hepburn & Dundas, 6 U.S. at 452–53 (holding that the District was not a
state within the meaning of the statute conferring diversity jurisdiction and reasoning that
the clause governing the composition of the House provides evidence that “the members
of the American confederacy only,” as distinguished from the District, “are the states
contemplated in the constitution”). Those cases plainly do not support the proposition that
Congress can treat the District as a state for purposes of a constitutional provision that
does not, by operation of the Constitution itself, embrace the District.
188
Views on Legislation Making the District of Columbia a Congressional District
imply that such taxes may be imposed only on the states. See U.S. Const.
art. I, § 8, cl. 1 (“The Congress shall have power to lay and collect tax-
es[.]”); id. cl. 17 (Congress has power to “exercise exclusive legislation in
all cases whatsoever” over the District). The purpose of the apportionment
provision of section 2 of Article I, the Court concluded, was “to furnish a
standard by which taxes are to be apportioned, not to exempt from their
operation any part of our country.” Loughborough, 18 U.S. at 320. Ac-
cordingly, the Court held that “Congress possesses, under the constitution,
the power to lay and collect direct taxes within the District of Columbia,
in proportion to the census directed to be taken by the constitution.” Id. at
325. As the foregoing summary makes clear, Loughborough cannot rea-
sonably be read to stand for the proposition that Congress can, by simple
legislation, bring the District within the ambit of the term “state” for
purposes of a constitutional provision that does not of its own force in-
clude the District. Indeed, the Court in Loughborough concluded that the
District “has voluntarily relinquished the right of representation,” id. at
324–25, and nothing in its discussion of that issue suggests that Congress
could give by statute what, in the Court’s view, the Constitution had taken
away.
Defenders of the legislation also point to lower-court cases that they
argue demonstrate Congress’s authority to treat the District as a state for
the purposes of the Constitution. See Milton S. Kronheim & Co. v. Dist. of
Columbia, 91 F.3d 193 (D.C. Cir. 1996); Clarke v. Wash. Metro. Area
Transit Auth., 654 F. Supp. 712, 714 n.1 (D.D.C. 1985), aff’d, 808 F.2d
137 (D.C. Cir. 1987). Those cases do not, however, address the question
whether the District can be treated as a state for purposes of Article I,
Section 2, a provision that implicates the special concerns relating to the
political structure of the federal government that both Justices Jackson
and Rutledge singled out in their Tidewater Transfer opinions. Moreover,
the provisions at issue in these lower-court cases, the Eleventh and Twen-
ty-first Amendments, also differ from the Composition Clause. Not only
do they have different constitutional texts (e.g., “[t]he transportation or
importation into any State, Territory, or possession of the United States
for delivery or use therein of intoxicating liquors, in violation of the laws
thereof, is hereby prohibited”), but their legal effect is very different, as
well. The Composition Clause is the exclusive source of the benefit it
confers: Unless an entity can be deemed a state, there is no plausible basis
189
33 Op. O.L.C. 156 (2009)
for it having voting representation in the House. By contrast, neither the
Eleventh Amendment nor the Twenty-First is the exclusive source of the
benefits they confer. Even without “treating” the District as a state, Con-
gress could grant the District immunity from suit, or confer on the District
the power to regulate the use of alcohol. For this reason, there could be no
argument that Congress’s action in either Kronheim or Clarke “contra-
vene[d] any provision of the Constitution.” Palmore, 411 U.S. at 397.
In sum, we conclude that Congress may not by statute give the District
of Columbia voting representation in the House. The relevant constitu-
tional text, original understanding, subsequent history, and judicial prece-
dent—including a recent summary affirmance by the Supreme Court—all
clearly support the proposition that the District is not a “state” within the
meaning of the Composition Clause. The District Clause gives Congress
broad power to legislate for the District, but it does not permit Congress
to override the prescriptions of the Composition Clause. 12
12 Our analysis addresses the most fundamental problem with the pending legislation,
which is that Congress may not by statute give the District voting representation in the
House without making the District a state. We note that, in addition to this fundamental
problem, another provision of the Senate bill raises additional concerns. Section 3(c)(l) of
S. 160 would require the President to “transmit a revised version of the most recent
statement of apportionment . . . to take into account this Act and identifying the State of
Utah as the State entitled to one additional Representative pursuant to this provision.”
This provision raises potential constitutional concerns of its own. As noted above, section
2 of the Fourteenth Amendment provides that “Representatives shall be apportioned
among the several States according to their respective numbers.” Although Congress may
by law expand the total number of Representatives in the House, the constitutional
requirement that those representatives be allocated on the basis of population could be
construed to preclude Congress from directing that additional representatives be assigned
to a particular state. This constitutional concern could be addressed by replacing the
language quoted above with the language used in the House bill, which requires the
President to submit a report “identifying the State (other than the District of Columbia)
which is entitled to one additional Representative pursuant to this section.” H.R. 157,
§ 3(c)(2). The fix we have suggested for this particular provision would not, however,
address the broader constitutional problem with the bill.
190