Sunday, May 14, 2006
More on DC Voting in the House
Earlier I had posted my quick review of the constitutionality of giving DC a full vote in the House and I received several thoughtful replies. Thanks to AGR for pointing me toward this paper which analyzes the authority of Congress to grant DC House voting rights. AGR states that this is Rep. Davis’ (R-VA) constitutional support source for his proposal. Now, Professor Dinh is a bright guy and all but I remain unpersuaded by their arguments.
But AGR’s find inspired me to look elsewhere and I came across this 2004 article from the Law ands Society Review at UCSB - Curing Disenfranchisement In DC. It provides a decent timeline of various proposals and offers a sober assessment of the constitutional, political and bureaucratic obstacles faced and to be faced.
Towards the end is this comment:
“Frankel proposes a new idea for legislation that would treat the District as a state for voting representation. He states, “If the exclusive legislation clause allows Congress to treat the District as a state for purposes of article III and federal jurisdiction, then it should also allow Congress to treat the District as a ‘state’ for purposes of article I, the seventeenth amendment, and congressional representation.”
This actually mirrors much of what Professor Dinh and Mr. Charnes advance as a basis for Congress having the authority to act here without a constitutional amendment. Without going all kinds on Con Law geeky on you, I still don’t buy it. I continue to believe it a real stretch to expand Congressional action to provide a House vote is the natural result of granting DC access to federal courts. Further, I will always be suspicious of new “powers” suddenly discovered in broad daylight that had previously gone unnoticed. The Constitution lays out the terms for House and Senate representation; DC has never had its own voting member: I think the two are (and have always bee understood to be) related.
But AGR’s find inspired me to look elsewhere and I came across this 2004 article from the Law ands Society Review at UCSB - Curing Disenfranchisement In DC. It provides a decent timeline of various proposals and offers a sober assessment of the constitutional, political and bureaucratic obstacles faced and to be faced.
Towards the end is this comment:
“Frankel proposes a new idea for legislation that would treat the District as a state for voting representation. He states, “If the exclusive legislation clause allows Congress to treat the District as a state for purposes of article III and federal jurisdiction, then it should also allow Congress to treat the District as a ‘state’ for purposes of article I, the seventeenth amendment, and congressional representation.”
This actually mirrors much of what Professor Dinh and Mr. Charnes advance as a basis for Congress having the authority to act here without a constitutional amendment. Without going all kinds on Con Law geeky on you, I still don’t buy it. I continue to believe it a real stretch to expand Congressional action to provide a House vote is the natural result of granting DC access to federal courts. Further, I will always be suspicious of new “powers” suddenly discovered in broad daylight that had previously gone unnoticed. The Constitution lays out the terms for House and Senate representation; DC has never had its own voting member: I think the two are (and have always bee understood to be) related.
Comments:
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Thanks for giving me more to read!
For the record, here's another paper, which takes a similar analysis, from none other than Ken Starr.
By the way, what do you think of retrocession? I have a hunch that Maryland would say "no thanks" and that District residents wouldn't want that either.
For the record, here's another paper, which takes a similar analysis, from none other than Ken Starr.
By the way, what do you think of retrocession? I have a hunch that Maryland would say "no thanks" and that District residents wouldn't want that either.
Thanks for the add'tl reading...I'll havemore comments later on Judge Starr's remarks...as to retrocession; why would anyone want that host of problems - that school system, coupled with Baltimore's, would put us in the fast lane for worst overall.
It has been noted that attorneys Starr and Dinh have held the Davis bill constitutional.
But even if Congress had the power to designate DC as a state for congressional representation, the bill would still be unconstitutional on equal protection grounds. If Congress can make it a state for the House, then it can do the same for the Senate. To give DC a Representative, but no Senators, violates the Equal Protection Clause by denying its citizens the equal protection of the laws.
Technically, this is the equal protection aspect of the Due Process Clause of the Fifth Amendment, applicable to Congress’s exercise of its plenary exclusive jurisdiction over the District since 1954, when Bolling v. Sharpe held that Congress could not run segregated schools in DC.
The bill does not even pass muster under equal protection in the House itself, since it expressly provides that “the District of Columbia may not receive more than one Member under any reapportionment of Members,” regardless of the actual population of D.C.
Neither opinion even identifies the equal protection issue, let along discusses it. Judge Starr is revered as one of the finest legal minds of his time, so perhaps Homer nodded. But the omission in the opinion by Viet Dinh is inexcusable, because the Washington Post reported that the House committee paid him $25,000 for his effort. See “Opinion Backs Davis's Effort To Grant D.C. Vote in House, Constitutional Amendment Not Needed, Official Finds,” by Spencer S. Hsu, November 20, 2004; Page B01.
Dinh and Starr know all about this, but have not responded, so we can draw the adverse inference, a rebuttable presumption that the bill fails the equal protection test.
Vince Treacy
Washington DC
vtreacy@msn.com
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But even if Congress had the power to designate DC as a state for congressional representation, the bill would still be unconstitutional on equal protection grounds. If Congress can make it a state for the House, then it can do the same for the Senate. To give DC a Representative, but no Senators, violates the Equal Protection Clause by denying its citizens the equal protection of the laws.
Technically, this is the equal protection aspect of the Due Process Clause of the Fifth Amendment, applicable to Congress’s exercise of its plenary exclusive jurisdiction over the District since 1954, when Bolling v. Sharpe held that Congress could not run segregated schools in DC.
The bill does not even pass muster under equal protection in the House itself, since it expressly provides that “the District of Columbia may not receive more than one Member under any reapportionment of Members,” regardless of the actual population of D.C.
Neither opinion even identifies the equal protection issue, let along discusses it. Judge Starr is revered as one of the finest legal minds of his time, so perhaps Homer nodded. But the omission in the opinion by Viet Dinh is inexcusable, because the Washington Post reported that the House committee paid him $25,000 for his effort. See “Opinion Backs Davis's Effort To Grant D.C. Vote in House, Constitutional Amendment Not Needed, Official Finds,” by Spencer S. Hsu, November 20, 2004; Page B01.
Dinh and Starr know all about this, but have not responded, so we can draw the adverse inference, a rebuttable presumption that the bill fails the equal protection test.
Vince Treacy
Washington DC
vtreacy@msn.com
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: Tuesday, June 13, 2006 3:37:00 PM
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