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Holder, OLC, and the DC Voting Rights Bill:
The Washington Post reports:
  Justice Department lawyers concluded in an unpublished opinion earlier this year that the historic D.C. voting rights bill pending in Congress is unconstitutional, according to sources briefed on the issue. But Attorney General Eric H. Holder Jr., who supports the measure, ordered up a second opinion from other lawyers in his department and determined that the legislation would pass muster.
  A finding that the voting rights bill runs afoul of the Constitution could complicate an upcoming House vote and make the measure more vulnerable to a legal challenge that probably would reach the Supreme Court if it is enacted. The bill, which would give the District a vote in the House for the first time, appeared to be on the verge of passing last month before stalling when pro-gun legislators tried to attach an amendment weakening city gun laws. Supporters say it could reach the House floor in May.
  In deciding that the measure is unconstitutional, lawyers in the department's Office of Legal Counsel matched a conclusion reached by their Bush administration counterparts nearly two years ago, when a lawyer there testified that a similar bill would not withstand legal attack.
  Holder rejected the advice and sought the opinion of the solicitor general's office, where lawyers told him that they could defend the legislation if it were challenged after its enactment.
  I don't quite know what to make of this story, not being so familiar with how OLC reviews proposed legislation. First, are OLC opinions about the constitutionality of proposed legislation normally binding on the executive? OLC opinions on interpreting enacted legislation are binding on the executive branch, but I don't know if opinions on the constitutionality of proposed legislation are generally treated the same way. And what is the AG's usual role in reviewing OLC opinions about proposed legislation? I'm not really sure.

  Hat tip: Ed Whelan, who has more on this.
Steve:
It seems to me that there are reasonable arguments on both sides of the constitutional issue, notwithstanding the large volume of blog commentors who think it's the simplest issue ever. I've read the legal arguments advanced by Ken Starr and Viet Dinh (both of whom think Congress can constitutionally give DC the vote) and they're certainly not frivolous.

But at the end of the day, if the bill passes there will be a court challenge, and a final determination one way or the other. I respect the acumen of the smart folks at OLC, but I'm very confused as to how an unpublished OLC opinion could "make the measure more vulnerable to a legal challenge that probably would reach the Supreme Court if it is enacted." It's a purely legal question; the opinion of OLC is irrelevant (as is the opinion of Ken Starr, except to the extent he makes a persuasive argument). Is the idea that opponents of DC voting would be likely to sway a court by arguing that hey, this bill must be unconstitutional, because the OLC secretly says so?
4.1.2009 12:31pm
Clayton E. Cramer (mail) (www):
The request for a second set of opinions reminds me of the joke about the engineer, the accountant, and the lawyer, all applying for a job, and all answering a question about what is 2+2. The lawyer gets the job by asking, "What do you want it to be?"
4.1.2009 12:32pm
Goliath of Gath:
OLC says the legislation likely is unconsitutional. Holder asks a different question of the solicitor general: Can you defend this? "Yes," they say, "we can defend unconstitutional legislation. We may lose in court because it is unconstitutional, but we can defend it."

It's all about appearances. Obama will say he tried to assist his friends in DC, but the courts simply obstructed him. All the reason for the DC folks to support Obama even more -- maybe he can do something about those recalcitrant judges.
4.1.2009 12:33pm
OrinKerr:
Clayton Cramer,

Of course, in the last Administration they made sure the lawyers would give them that answer the first time.
4.1.2009 12:34pm
OrinKerr:
Steve,

I suspect the idea is that publication of the fact that the Obama OLC also thought it was constitutional helps create more of a sense that those who disagree are outliers. Of course, if Obama puts Ken Starr and Viet Dinh on the Supreme Court, that would be two votes in favor of the legislation.
4.1.2009 12:39pm
Dan M.:
I am hoping that this will pass with the gun rights amendment and that the meat of the bill gets declared unconstitutional.
4.1.2009 12:39pm
OrinKerr:
Er, make that unconstitutional.
4.1.2009 12:40pm
Brett Bellmore:
It seems to me that there are "reasonable" arguments on both sides only because, when the question is whether something the federal government wants is constitutional, the threshold for "reasonable" is set remarkably low. None the less, I wouldn't want to bet on this measure being found unconstitutional. That threshold IS insanely low. Any lower, and we might as well stop asking the question.

Anyway, the earlier opinion and the latest are on different questions. The first opinion was that the bill was unconstitutional. The second was that a defense of the bill could be mounted. Both are true: It won't be a good defense, but it can be done.

And deserves to fail.
4.1.2009 12:41pm
Edmund Unneland (mail):
Perhaps the opinion was changed because the President is worried about carrying the District of Columbia in 2012 ... :-)
4.1.2009 12:41pm
Anon321:
Consultation with the SG's office seems odd here. In part, that's because OLC and the SG's office seem to be answering different questions: the OLC opinion purports to answer the question, "Is this bill constitutional?", which would presumably inform the President's decision to sign or veto it. The SG's opinion, on the other hand, seems just to answer the question, "If this bill became law and its constitutionality was challenged it court, would you defend it?" Not surprisingly, the answer is yes -- there are certainly colorable arguments that the bill is constitutional. But an opinion saying, "sure, we'd defend it in court -- we're committed to defending the constitutionality of federal legislation so long as there is any colorable argument to be made" is not the same as an opinion saying, "in our view, it is constitutional." That latter opinion is generally the province of OLC, not the SG, as I understand it.
4.1.2009 12:43pm
Just an Observer:
I may be wrong, but I think that since the OLC function is a delegated one, the AG could take the unusual step of overruling it with his own opinion. But it does not seem that is what Holder has done. I don't know the answer to Orin's question about whether an OLC opinion about proposed legislation is actually binding.

As for the merits, my own opinion is that the DC voting-representation bill is unconstitutional. I read the arguments by Starr and Dinh but did not find them persuasive.
4.1.2009 12:46pm
Eric Rasmusen (mail) (www):
This is of course a much clearer case than in the Bush Administration of the top political leaders overruling the civil service lawyers on a legal stance. So I hope the people who objected to John Yoo's stance call for AG Holder's disbarment even more strongly.

As for myself, though, I find it appalling that anyone thinks the civil service lawyers ought to be making these decisions instead of the elected leaders. The OLC is just a bunch of staffers (mostly civil service staffers-- i.e., lawyers who couldn't get better jobs and who probably have strong ideological preferences). Staffers are supposed to give their best technical expertise to the organization leader, who then makes the actual decision-- in this case, What Shall the Executive Branch's Position be on the DC Bill? I do think the bill is blatantly unconstitutional, but I didn't get elected President and I'm not on the relevant court. I say: Let Holder and Obama defend the position they want in court. And the opinion of his staffers should not be admissible there.
4.1.2009 12:47pm
martinned (mail) (www):
I would imagine OLC opinions are only binding to the extent the Attorney-General or the President does not overrule them.

This case does remind me of another question: How come there is such a tradition in the US, or at least in the US congress, of sticking unrelated amendments on bills? I don't think any country has a rule against this (I've been thinking about it, and I can't think of a way to write one), but I know of no country where they would tack an amendment about gun rights onto a bill about the electoral system.
4.1.2009 12:48pm
Oren:

First, are OLC opinions about the constitutionality of proposed legislation normally binding on the executive?

In what sense could they be? The OLC cannot obligate the President to veto legislation, nor can it forbid the DOJ from defending it in court.

Hopefully the bill has a provision mandating direct review by the SCOTUS so it can get resolved without dragging it through the DC CA.
4.1.2009 12:51pm
mga (mail):
Assuming that the bill is unconstitutional, who would have standing to challenge it?
4.1.2009 12:52pm
Eric Rasmusen (mail) (www):
p.s. I'm an economist. Did any of us ever get upset when a staff economist told a politician, truthfully, that all reputable economists believe X and he did Y instead?
4.1.2009 12:52pm
Bretzky (mail):
I would think that before any legislation is enacted it is up to the President to decide whether it is constitutional. Whatever the OLC thinks of legislation is only relevant insofar as the President accepts the OLC's argument. If Obama decides on his own that the proposed law is constitutional, then, for all practical purposes, the executive branch has decided it is constitutional.
All executive power in our federal government is, after all, reposed in the President.
4.1.2009 12:53pm
w&c:
Eric Rasmusen,

While OLC attorney-advisers are indeed "staffers" they are hardly unable to get another job--in fact, an OLC stint on your resume is a ticket to a great private sector job in this town and the younger attorney-advisers are almost all COA/SC clerks. If you don't know that, not sure you can meaningfully contribute to a discussion of the OLC's role at DOJ.
4.1.2009 12:53pm
DiversityHire:
Oh come on, check the dateline. Between this and the Stevens thing, Eric Holder is in the running for best AG prankster since Kleindienst.
4.1.2009 12:53pm
trad and anon (mail):
This doesn't look good; another small sign that I am not getting the change I hoped I was voting for.

I think the bill is almost certainly unconstitutional, and am still waiting to hear these "reasonable arguments" on the other side. Maybe there are precedents I don't know of that can be read to support Congress's power to do this, but nobody has ever told me what they are and I'm not motivated enough to do the research anyway. I just stick this in my (ever-growing) list of things that suck about the Constitution.

I still think the Democrats should ram statehood through the Senate. The citizens of the District are morally entitled to the franchise, and adding two ultra-safe Senate seats would have obvious partisan benefits. It also has the benefits of being less politically infeasible than retrocession: there's no way Maryland is taking the District given how screwed up it is.
4.1.2009 12:54pm
Oren:

I don't think any country has a rule against this (I've been thinking about it, and I can't think of a way to write one), but I know of no country where they would tack an amendment about gun rights onto a bill about the electoral system.

The IL Constitution

Bills, except bills for appropriations and for the
codification, revision or rearrangement of laws, shall be
confined to one subject.

The IL Supreme Court hasn't interpreted the provision incredibly strictly, giving deference to the legislature, but they have required a "natural and logical connection" between the matters (People v. Reedy).
4.1.2009 12:56pm
Abdul Abulbul Amir (mail):

...I know of no country where they would tack an amendment about gun rights onto a bill about the electoral system.



Both are narrowly about the rights of citizens of DC.

PS. Guns have no rights.
4.1.2009 12:57pm
Soronel Haetir (mail):
Martin,

I believe it's mostly a procedural dodge. There are lots of rules about introducing new bills, but amendments to existing bills don't have those limitations.

Also, the amendment might not have enough support to pass on its own, but if it's successfully attached to something else it's also not so odious as to kill the entire measure.

Also, when compared to fusion governments such as the UK, the executive has far less influence over what measures are brought up for a vote and what the final form of any particular bill will look like. Whether that is a feature or a bug is left as an exercise for the partisan hacks.
4.1.2009 12:57pm
Constantin:
As an aside, I find the Washington Post's use of the term "pro-gun" to be interesting. To conform with the Post's choice of words with regard to another contentious issue, shouldn't the proper term be "pro-gun rights" or even "pro-choice"?

After all, couldn't one be personally opposed to guns, but recognize that the right to a gun is protected by the Constitution?
4.1.2009 12:58pm
martinned (mail) (www):
@Oren: Thanks. It wasn't the writing of such a rule itself that I expected to be the problem, but more the question of who decides what "one subject" is. I presume that courts would normally be reluctant to get involved in this question. I'll take a look at the Ill. case.
4.1.2009 12:59pm
Dan Schmutter:
I don't think the Starr/Dinh reasoning is all that reasonable. They rely on the assertion that Congress's sweeping super powers to provide for the district allow it to contradict an explicit provision of the Constitution (Art. I Sec. 2).

If that were true then Congress could by legistation provide D.C. with 3 Senators, which would violate the equal suffrage provision of the Constitution.

I think that kind of super powers reading of the District clause is grossly mistaken.

Dan Schmutter
4.1.2009 12:59pm
Oren:

Assuming that the bill is unconstitutional, who would have standing to challenge it?

Any citizen of the next state in line to get a house seat (since the total number is fixed) should suffice, no?


It also has the benefits of being less politically infeasible than retrocession: there's no way Maryland is taking the District given how screwed up it is.

Entirely academic constitutional puzzler -- can Congress retrocede parts of DC to MD unilaterally? The Constitution requires the consent of the state legislature to remove parts but not to add them ...
4.1.2009 1:00pm
Oren:

I presume that courts would normally be reluctant to get involved in this question.

While the IL Supreme Court is many things, bashful is not one of them.
4.1.2009 1:01pm
martinned (mail) (www):
@Soronel Haetir: I suspect it has less to do with the parliamentary/presidential system question, and more with how amendments are introduced and voted. I imagine that in many parliaments, it would be about as difficult to attach an amendment to a bill as it is to introduce a new bill. (Say, the measure needs 50% + 1 in either case.) In such circumstances, there is nothing to be gained from sticking alien amendments on bills. (Except maybe to make it more difficult for the president to veto.)

In the vagaries of US congressional committees, it is probably easier to add an amendment than to write a whole new bill.
4.1.2009 1:04pm
ShelbyC:

The citizens of the District are morally entitled to the franchise, and adding two ultra-safe Senate seats would have obvious partisan benefits


How 'bout the citizens of Puerto Rico?
4.1.2009 1:08pm
Oren:

How 'bout the citizens of Puerto Rico?

Guam, Virgin Islands, Marshall Islands, Samoa, Palau ...

This is way offtopic, but I always thought the insular cases were/are a disgrace to the US Constitution. A territory either is or is not part of the United States. We fought a hard war to prove that Britain did not have the power to govern colonies without granting them franchise ...
4.1.2009 1:15pm
MarkField (mail):

How 'bout the citizens of Puerto Rico?


They've turned down the statehood option, so apparently they're satisfied with the current situation.
4.1.2009 1:19pm
Borealis (mail):
I read Ken Starr's Op/Ed piece, and I think he is mistaken. Yes, the Constituion grants Congress plenary power over the District, but that is not the issue. The issue is about voting in Congress, and the whole purpose of a Constitution is to set the parameters of the three branches of government.
4.1.2009 1:20pm
Connecticut Lawyer (mail):
I'm waiting for all the public commentators who blasted Bush's attorney general for opinion shopping (in order to support the president's war-fighting powers in the middle of a war) to blast Obama's attorney general for opinion shopping (for nakedly partisan political reasons).
4.1.2009 1:22pm
George Smith:
Two Senators from the District of Columbia is one of the more frighteneing things I've heard in a long time.
4.1.2009 1:25pm
martinned (mail) (www):
Wouldn't it be easier (or at least more likely constitutional) to stick Washington DC back in with Maryland where it came from, at least for the purposes of Federal voting?
4.1.2009 1:26pm
Hans Bader (mail) (www):
The OLC lawyers who admitted that the bill is unconstitutional were liberal academics appointed by Obama himself. But not even they could argue with a straight face that it was constitutional.

The bill is flagrantly, patently unconstitutional, since it violates the constitutional requirement of Article 1, Section 2 of the Constitution that the "The House of Representatives shall be composed of Members chosen every second Year by the People of the several States." Washington, D.C. is not a state. The Founding Fathers specifically intended to limit Washington, D.C.'s influence over Congress. The Fourteenth Amendment likewise states that "Representatives shall be apportioned among the several States according to their respective numbers."

Supporters of the bill argue that the bill is constitutional under the District Clause in Article 1 of the Constitution, which says that Congress has the power of "exclusive Legislation" over the District. They say its language trumps other constitutional provisions. But that argument is frivolous. Allowing grants of power, like the District Clause, to override other provisions of the Constitution, such as the Fourteenth Amendment, is dangerous, since those other provisions also contain crucial civil liberties. Under this logic, Congress could legislatively authorize warrantless searches and seizures in the District, effectively overriding the Fourth Amendment. And it could summarily punish innocent people through "bills of attainder," which are prohibited in the very same article of the Constitution — Article 1 — as the requirement that only "states" receive Congressman. If that requirement can be overridden by the District Clause, as bill supporters claim, then why can't other requirements in the same article, like the ban on bills of attainders?

Before, it had always been assumed that grants of power are limited by other constitutional provisions, not the other way around. After all, the Constitution grants Congress the power to regulate interstate commerce, but it can't use that to override the First Amendment, by restricting commercial speech, national campaign ads, or speech on the Internet. Congressional laws regulating the publishing industry, interstate advertising, web sites, and other forms of interstate commerce have been struck down as a violations of free speech, without anyone suggesting that Congress's power overrode the First Amendment. Similarly, a federal appeals court struck down the Elizabeth Morgan Act as a bill of attainder in 2003, even though it was legislation specific to the district.

Attorney General Holder's political meddling is a breach of his promise not to politicize DOJ's legal positions, and to take legal positions based not on "a political process," but rather "based solely on our interpretation of the law."

But this shouldn't be a big surprise, coming from an Administration that has routinely broken campaign promises, such as Obama's promise of a "net spending cut," which he broke in myriad ways, such as a budget that will $increase projected deficits by $4.8 trillion, and bailouts amounting to $8 trillion (not counting another trillion dollars for the toxic-asset buy-up program and $800 billion for the economy-shrinking "stimulus" package).
4.1.2009 1:27pm
My Middle Name Is Ralph:

First, are OLC opinions about the constitutionality of proposed legislation normally binding on the executive?


I'm not sure I understand what it would mean with respect to this law if OLC opinions about its constitutionality were "binding." The President has nothing to do with the execution of the law (at least the constitutionally questionable part of it). The only role I see is signing it or not. If the OLC opinion were binding would Obama be legally obligated to veto the legislation? That can't be right.
4.1.2009 1:28pm
Oren:

I'm waiting for all the public commentators who blasted Bush's attorney general for opinion shopping (in order to support the president's war-fighting powers in the middle of a war) to blast Obama's attorney general for opinion shopping (for nakedly partisan political reasons support the President's war-fighting powers in the war against disenfranchisement of US citizens).

FIFY.

Like Bush's claims in Hamdi/Hamdan/Boumedienne, I'll let the Supreme Court, not the President, decide the matter of constitution law.
4.1.2009 1:28pm
Oren:
s/"constitution law"/"constitutional law"/g whoops
4.1.2009 1:29pm
Oren:

Wouldn't it be easier (or at least more likely constitutional) to stick Washington DC back in with Maryland where it came from, at least for the purposes of Federal voting?

You can start lobbying the legislature of MD now -- I'm sure they're eager to add another crime-ridden inner city to the joy that must be governing Baltimore.

Alternatively, you can start drafting an OLC opinion on the power of Congress to forcibly retrocede DC to MD against (or at least absent) their consent.
4.1.2009 1:31pm
martinned (mail) (www):
@Oren: Sorry, I could have been clearer. What I meant is that the inhabitants of DC could vote in federal elections as if they were inhabitants of Maryland, electing, together with the inhabitants of Maryland, that state's two senators, 8 congressmen and 10 electoral college members.
4.1.2009 1:34pm
Steve:
I suspect the idea is that publication of the fact that the Obama OLC also thought it was constitutional helps create more of a sense that those who disagree are outliers.

This is surely true in a political sense, but does it really impact the outcome in the courts in any significant way? I mean, there's a reason courts don't typically admit expert testimony on questions of law.
4.1.2009 1:35pm
Abdul Abulbul Amir (mail):

Wouldn't it be easier (or at least more likely constitutional) to stick Washington DC back in with Maryland where it came from, at least for the purposes of Federal voting?


That would defeat the whole purpose, which is adding a super safe Dem house seat forever.
4.1.2009 1:37pm
My Middle Name Is Ralph:

Wouldn't it be easier (or at least more likely constitutional) to stick Washington DC back in with Maryland where it came from, at least for the purposes of Federal voting?


The only way to make that happen is if DC became a part of Maryland. Otherwise, you face the exact same constitutional problems that the DC voting bill has. And have you heard a single Maryland politician suggest this? If not, I think you have your answer as to how easy it would be.
4.1.2009 1:37pm
Oren:

@Oren: Sorry, I could have been clearer. What I meant is that the inhabitants of DC could vote in federal elections as if they were inhabitants of Maryland, electing, together with the inhabitants of Maryland, that state's two senators, 8 congressmen and 10 electoral college members.

It's an interesting "as if", but I don't think that will fly with Art I (amendments notwithstanding, of course).
4.1.2009 1:38pm
My Middle Name Is Ralph:

Supporters of the bill argue that the bill is constitutional under the District Clause in Article 1 of the Constitution, which says that Congress has the power of "exclusive Legislation" over the District. They say its language trumps other constitutional provisions. But that argument is frivolous. Allowing grants of power, like the District Clause, to override other provisions of the Constitution, such as the Fourteenth Amendment, is dangerous, since those other provisions also contain crucial civil liberties.


You must not have thought too much of Yoo et al's arguments about the extent of the president's power as commander in chief then.
4.1.2009 1:40pm
DiverDan (mail):

I don't think the Starr/Dinh reasoning is all that reasonable. They rely on the assertion that Congress's sweeping super powers to provide for the district allow it to contradict an explicit provision of the Constitution (Art. I Sec. 2).



Amen. Based on the reasoning in Ken Starr's piece, Congress could also grant Congressional voting privileges to Puerto Rico, Guam, American Samoa, Guantanamo Bay, Yellowstone National Park, Yosemite, Big Bend, Grand Canyon National Park, each Indian Reservation still in existence, and each Military Base in the United States (and maybe foreign bases - Would the Congressman from Subic Bay please rise?).

Sorry, I have yet to see any non-frivolous arguments for why the D.C. Voting Rights Bill is Constitutional. I can only conclude that Eric Holder, by pushing the OLC to find that it is Constitutional, is perpetrating one really great April Fools prank, or he's looking to beat out Alberto Gonzalez for least qualified AG ever.
4.1.2009 1:44pm
martinned (mail) (www):

It's an interesting "as if", but I don't think that will fly with Art I (amendments notwithstanding, of course).

I was thinking of the way the various island have been alotted to different CoA districts. But I forgot that the Constitution doesn't even require that such a thing as the Courts of Appeals exists, much less how their jurisdiction should be decided. Art I does say, however, that members of Congress are elected by the "People of the Several States", and - more importantly for my suggestion - that the District of Columbia was created "by Cession of Particular States".
4.1.2009 1:47pm
ShelbyC:
Oren:

Guam, Virgin Islands, Marshall Islands, Samoa, Palau ...


'course Puerto Rico's argueably different because the folks there are citizens from birth, but yeah.
4.1.2009 1:48pm
Oren:


'course Puerto Rico's argueably different because the folks there are citizens from birth, but yeah.

The people of Guam have US citizenship by act of Congress.
4.1.2009 1:54pm
JHU BME:
I much prefer HR 665 (giving DC congressional representaiton through Maryland, without retrocession). The only part of HR 665 that seems unconstitutional is the provision allowing DC residents to run for the congressional seats, since they are part of Maryland's delegation and the state residency requirement seems to disqualify non-Marylanders.
4.1.2009 1:54pm
Oren:

I much prefer HR 665 (giving DC congressional representaiton through Maryland, without retrocession). The only part of HR 665 that seems unconstitutional ...

Excepting that

The House of Representatives shall be composed of members chosen every second year by the people of the several states
4.1.2009 1:57pm
My Middle Name Is Ralph:
I'm still confused as to what the obama administration allegedly did wrong here. OLC issues an opinion the DC voting bill is unconstitutional. Holder asks the Solicitor General if he can defend the bill in court and the SG says "yes."

Is there any legal significance of the OLC opinion? If so what is it? If not, then what's the criticism of the Obama administration?
4.1.2009 1:58pm
Eric Rasmusen (mail) (www):
Someone noted that an OLC job is a great stepping stone to a private law firm job, so it is not a second-rate job. True, it's a great stepping stone-- but that's different from being a great job. What it says is it attracts people with potential who aren't good enough for a law firm partnership, but might be in the future. The law firms have lots of lawyers who *already* have developed enough skill to be a partner-- so they are already.
4.1.2009 2:02pm
martinned (mail) (www):
@Eric Rasmusen: Read this, please.
4.1.2009 2:09pm
Houston Lawyer:
Can't we just replace Barney Frank with Marion Barry now and get it over with? I don't understand how anyone could say that the citizens of DC deserve a congressman, but not two senators.
4.1.2009 2:12pm
martinned (mail) (www):

I don't understand how anyone could say that the citizens of DC deserve a congressman, but not two senators.

Well, for one thing, DC has fewer inhabitants than any state except Wyoming. (Wiki)
4.1.2009 2:16pm
Soronel Haetir (mail):
The good news is that a DC statehood resolution would almost certainly fail in the Senate.
4.1.2009 2:18pm
Bob White (mail):
From the Maryland perspective, the problem with retrocession is that it would shift the political power of the start away from Baltimore and firmly toward DC and the suburbs on that side of the Potomac. For the current non-DC area power brokers, that's an unattractive proposition. That's why we need Congress to force retrocession.
4.1.2009 2:30pm
My Middle Name Is Ralph:

I don't understand how anyone could say that the citizens of DC deserve a congressman, but not two senators.


Simple. Giving DC two Senators would give them representation in the Senate all out of proportion to their population. Giving them a congressman would not.
4.1.2009 2:30pm
martinned (mail) (www):
@Bob White: Remember, we're only talking about DC proper, not its suburbs. Adding DC to Maryland for voting purposes would increase the number of voters by about 10%. That's significant, but hardly decisive.
4.1.2009 2:33pm
martinned (mail) (www):
Update from previous: Washington DC proper has about 600.000 inhabitants. Baltimore city has 650.000, and the Baltimore metropolitan area 2,6 million.
4.1.2009 2:37pm
trad and anon (mail):
Re the territories:

I'm not terribly familiar with territorial law, but the status of the territories is fine with me, because the territories have more de facto independence than the states, most notably exemption from federal income tax. I would advocate their having the right to vote on independence (or statehood) if there were ever a substantial movement in support of it.

D.C., on the other hand, not only has no such exemptions but is regularly subjected to gratuitous Congressional meddling or the threat of such meddling, and the citizens of the city are completely powerless to do anything about it.
4.1.2009 2:44pm
Steve:
Based on the reasoning in Ken Starr's piece, Congress could also grant Congressional voting privileges to Puerto Rico, Guam, American Samoa, Guantanamo Bay, Yellowstone National Park, Yosemite, Big Bend, Grand Canyon National Park, each Indian Reservation still in existence, and each Military Base in the United States (and maybe foreign bases - Would the Congressman from Subic Bay please rise?).

This is funny, but it couldn't be more incorrect, as Starr's argument is principally based upon the Seat of Government Clause, Art. I, sec. 8, Cl. 17, which pertains only to the District of Columbia and not to any of these other places.

Agree or disagree with Starr's legal argument, it is virtually impossible for anyone to read that argument and conclude "oh, that would apply equally well to Grand Canyon National Park." I've noted a remarkable tendency for people to blithely opine "oh, that's obviously unconstitutional" without even engaging the merits of the other side's arguments.
4.1.2009 2:46pm
hawkins:

Simple. Giving DC two Senators would give them representation in the Senate all out of proportion to their population. Giving them a congressman would not.


Sense when does that matter?
4.1.2009 2:46pm
hawkins:
D'oh! - 'since'
4.1.2009 2:47pm
Anon321:
What it says is it attracts people with potential who aren't good enough for a law firm partnership, but might be in the future.

Others have already pointed this out, but just to pile on: OLC attorneys, including those hired through the civil service channels rather than being politically appointed, are among the most highly credentialed and sought-after lawyers in the country. I suspect that any one of them could get a job at any law firm in the country. Some of them have left partner positions at law firms or tenured faculty positions at places like Harvard to work there. By contrast, I'm sure that there are many, many partners at top-tier law firms who would be turned down if they applied for jobs at OLC. The suggestion that the guidance of OLC is somehow tainted because its lawyers are government bureaucrats who, ipso facto, must be less qualified or capable than lawyers in the private sector is just inaccurate.

On the substantive point, perhaps this is a case of Holder following the model, laid out by Walter Dellinger when he was head of OLC, of trying to manoeuvre thorny constitutional issues so that they can be resolved directly by the judiciary, in light of that branch's traditional role as the final arbiter of the Constitution's meaning. Obviously, some people don't think this is a difficult constitutional question at all. But assuming arguendo that it is and considering its significant real-world ramifications, it seems reasonable for its constitutionality to be determined by the Supreme Court rather than the Executive branch.
4.1.2009 2:47pm
trad and anon (mail):
Simple. Giving DC two Senators would give them representation in the Senate all out of proportion to their population. Giving them a congressman would not.
That's how the Constitution works. You are of course free to call for the abolition of the Senate (or the less-infeasible option of turning it into a mostly ceremonial body like the House of Lords) but given that the Constitution leaves us only with the options of statehood or total disenfranchisement, we should accept statehood.
4.1.2009 2:54pm
Oren:

From the Maryland perspective, the problem with retrocession is that it would shift the political power of the start away from Baltimore and firmly toward DC and the suburbs on that side of the Potomac.



That's how the Constitution works. You are of course free to call for the abolition of the Senate (or the less-infeasible option of turning it into a mostly ceremonial body like the House of Lords)

Or the more-feasible option of breaking up the large states into smaller and smaller subdivisions (with the consent of the legislatures thereof) until the imbalance in the Senate is in the reasonable range (say 10:1) as opposed to the current 40:1.

Added bonus: most of California would love to get rid of those hippies in LA/SF and likewise, the hippies would love to be rid of those hicks up in Redding. Upstate NY hates NYC (despite the net northwards flow of $$$), most of IL would be glad not to be governed by the knuckleheads in Chicago ...
4.1.2009 3:08pm
Oren:


From the Maryland perspective, the problem with retrocession is that it would shift the political power of the start away from Baltimore and firmly toward DC and the suburbs on that side of the Potomac.



Whoops, meant to comment on that. MD doesn't want DC because it's crime-ridden constant headache that sucks way more in government services than it pays in taxes. The MD suburbanites already subsidize the **** out of Baltimore, leave them alone!
4.1.2009 3:10pm
Eric Rasmusen (mail) (www):
Maybe I'm wrong on the quality of the OLC staff. Can anybody point me to a list of the attorneys there? Googling around, I couldn't find it. I think I may have found somewhere that it has 24 attorneys.
4.1.2009 3:12pm
hawkins:

most of California would love to get rid of those hippies in LA/SF and likewise


Are there that many hippies in LA?
4.1.2009 3:12pm
Oren:

Are there that many hippies in LA?

Hollywood-style lefties -- hippies with haircuts.
4.1.2009 3:17pm
martinned (mail) (www):
@Eric Rasmusen: Look at the link I posted before, about Marty Lederman going to the OLC.

This, BTW, is what it says on the OLC vacancies page:


Attorney-Advisor Positions

The Office of Legal Counsel (OLC) employs highly qualified attorneys to serve as Attorney-Advisors. OLC's principal function is to assist the Attorney General in fulfilling the role of legal adviser to the President and Executive Branch agencies. More specifically, OLC's responsibilities include advising the Attorney General, the White House Counsel, all executive departments and agencies, and the various components of the Department of Justice on constitutional and statutory matters; resolving legal disputes within the Executive Branch through the issuance of binding legal opinions; reviewing for constitutionality legislation proposed by the President or by Congress; and reviewing for legality and form all executive orders, proclamations and memoranda proposed to be issued by the President and all Attorney General orders and regulations.

Because OLC's 24 attorneys handle some of the most difficult and important legal issues confronting the Executive Branch, the Office is highly selective in its hiring. Applicants must have a J.D. degree, be an active member of at least one bar (any U.S. jurisdiction), and have at least one year of post-J.D. legal experience. The ideal candidate will have exceptional academic credentials, judicial clerkship or comparable experience, strong background in constitutional law, and outstanding legal research and writing skills. Turnover in Attorney-Advisor positions is sporadic and often difficult to predict, and there is therefore no established hiring cycle. For a listing of OLC's current experienced attorney vacancies, please visit the Department's Office of Attorney Recruitment and Management website at http://www.usdoj.gov/oarm/attvacancies.html.
4.1.2009 3:17pm
gab:
"That would defeat the whole purpose, which is adding a super safe Dem house seat forever."

I don't know the math offhand, but wouldn't adding 600,000 people or so be enough to add another House seat to Maryland's delegation? And wouldn't that Congressional district encompass DC?
4.1.2009 3:24pm
martinned (mail) (www):
@Eric: According to the OLC's appropriations request, they have 37 total staff.
4.1.2009 3:24pm
hawkins:

Hollywood-style lefties -- hippies with haircuts.


I guess all "lefties" are hippies. Dont forget the spanish speaking hippies, the persian hippies, the soccer mom hippies, and the south central hippies.
4.1.2009 3:24pm
Just an Observer:
Hans Bader: The OLC lawyers who admitted that the bill is unconstitutional were liberal academics appointed by Obama himself. But not even they could argue with a straight face that it was constitutional.

I don't think the Post story said who signed the opinion. Obama's nominee to head the OLC has not been confirmed. Could it have been a career OLC attorney?

Although I happen to agree with you on the merits that the bill is unconstitutional, I can't help but notice that prominent liberals such as Ken Starr, Viet Dinh and Orrin Hatch do argue the opposite proposition.
4.1.2009 3:31pm
My Middle Name Is Ralph:

That's how the Constitution works. You are of course free to call for the abolition of the Senate (or the less-infeasible option of turning it into a mostly ceremonial body like the House of Lords) but given that the Constitution leaves us only with the options of statehood or total disenfranchisement, we should accept statehood.


Actually, the constitution leaves us with another option--amendment of the constitution. It would be simple to craft an amendment that gave DC a representative in the House without giving it representation in the Senate. That's my favored option.
4.1.2009 3:55pm
Lucas:
Steve: Art. I, Sec. 8, Cl. 17 also gives Congress "like Authority" (i.e. the same as for the seat of government) over "Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings." At a minimum, it follows directly from Starr's argument that if Congress may give D.C. House representation, it may do the same for these other places --military bases, for example. It is a closer question whether Congress's Art. IV, Sec. 3 power to "make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States" would mean (assuming Starr is right) Congress could also give Guam, Puerto Rico, or the national parks representation, but generally this power has been considered equivalent to that give in the Seat of Government (and Needful Buildings) Clause.
4.1.2009 3:57pm
JoeSixpack (mail):
If the residents of DC are so troubled by their "disenfranchisement", they are free to move to Maryland or Virginia. Problem solved. To equate this to real disenfranchisement in the way that women and blacks actually suffered is absurd.
4.1.2009 4:00pm
Oren:

If the residents of DC are so troubled by their "disenfranchisement", they are free to move to Maryland or Virginia.

Unconstitutional condition.
4.1.2009 4:08pm
hawkins:
As a matter of policy, what non-partisan justification are there for opposing DC voting rights?
4.1.2009 4:18pm
JoeSixpack (mail):
Oren: If we are going to quibble about constitutional technicalities, it is only an unconstitutional condition with respect to "the People of the several States."

Surely if we can read "the People of the several States" to include "People not of any State", then all constitutional technicalities are out the window.
4.1.2009 4:26pm
John Burgess (mail) (www):
As I've been saying for over 20 years, the answer here is not to give DC representation, but instead to free it from federal taxation. DC income tax is currently around 9.6% of federal taxes.

Avoiding that tax would certainly be more valuable to me than voting for anyone in the Congress of Buffoons we now have or are likely to have.
4.1.2009 4:27pm
Wahoowa:
Damn those evil warmonger neocon Republicans running roughshod over the constitution, adopting political stands as legal ones--

Wait . . . what? Obama's president now? OH! Well, in that case, carry on.
4.1.2009 4:53pm
Mark in Colorado:
As a matter of policy, what non-partisan justification are there for opposing DC voting rights?

That we are a nation of laws and the Constitution is the Supreme Law of the land?

Or is that partisan?
4.1.2009 4:54pm
Bob White (mail):

As a matter of policy, what non-partisan justification are there for opposing DC voting rights?

Aside from it's unconstitutional, you mean?

All 538* members of the Congress are required by the nature of their job to spend a great deal of time in Washington, D.C., which necessarily entails, at least at some level, becoming familiar with the trials, tribulations, and affairs of that city. Each therefore is, in some respect, a representative of the District of Columbia and has a selfish interest in DC's well-being, thus obviating the need for separate representation.

*-Except if they're running for national political office and don't resign their seat.
4.1.2009 4:54pm
hawkins:

That we are a nation of laws and the Constitution is the Supreme Law of the land?


Give me a break. Was it not clear what I was asking? Forgetting the constitution for a moment, what are the current benefits of such a law?
4.1.2009 5:03pm
hawkins:
Bob White - thanks for offering a sincere answer. I somewhat sea the point, but the lack of accountable representation is still troubling
4.1.2009 5:09pm
hawkins:
see
4.1.2009 5:10pm
PubliusFL:
hawkins: As a matter of policy, what non-partisan justification are there for opposing DC voting rights?

The same justification there was for having the federal district not be part of any state in the first place: having the seat of government be on "neutral ground."

John Burgess: As I've been saying for over 20 years, the answer here is not to give DC representation, but instead to free it from federal taxation. DC income tax is currently around 9.6% of federal taxes.

I've had the same idea. The downside of that idea is it would give people more of an economic incentive to settle in DC. DC should have fewer people, not more.
4.1.2009 5:17pm
Mark in Colorado:
Give me a break. Was it not clear what I was asking? Forgetting the constitution for a moment, what are the current benefits of such a law?

You are missing my point. So long as DC voting rights are pursued via unconstitutional means I will be in opposition, because I believe that the Constitution means something. That is my policy. I am not big on the ends justifying the means.

A Constitutional Amendment providing representation to DC would be fitting and proper. And it would also be a solution more likely to be respected among the people than the current Bill.
4.1.2009 5:17pm
Michelle Dulak Thomson (mail):
hawkins,

IIRC, the original purpose of having D.C. set apart, not part of any state, was to avoid any state's being able to vaunt itself as possessor of the national capital.

I doubt that the framers envisioned D.C. having quite as many full-time residents as it now does, though. I can see a case for a Constitutional amendment giving the residents a voting Congressional seat (or incorporating them into the population of Maryland for Congressional-election purposes), but it seems pretty clear that a Constitutional amendment is what it'd take.
4.1.2009 5:18pm
hawkins:
Thanks Publius and Michelle. I dont think such considerations are very relevant today. Do others disagree? I feel the same way about the electoral college. I do agree that a constitutional amendment is necessary.

No, Mark - you were missing my point (or chose to ignore the entire premise of my question).
4.1.2009 5:24pm
Eric Rasmusen (mail) (www):
To add a bit to the policy reason for not giving DC a seat in Congress: since all the Congressmen spend time there, Congress already has too much incentive to spend money on DC for purely selfish reasons.

Also, since DC is the national capital, even if the rest of Congress didn't care selfishly about it because they lived there, they have ample incentive to take care of the city out of national pride.

As an empirical test we could ask two things:

1. Does the Federal government subsidize DC more than it does other cities, such as Baltimore?

2. Does the DC government think the federal government will bail it out, and hence has more inefficient government?

Reason (2) is why DC should be run by the federal government instead of its citizens.
4.1.2009 5:27pm
Just an Observer:
hawkins: As a matter of policy, what non-partisan justification are there for opposing DC voting rights?

If you mean under the Article V amendment process, that is a reasonable policy question. FWIW, that has been tried before and failed the political test of ratification, whatever the policy merits.
4.1.2009 5:27pm
My Middle Name Is Ralph:

If the residents of DC are so troubled by their "disenfranchisement", they are free to move to Maryland or Virginia. Problem solved.


Wouldn't your "reasoning" have applied equally to blacks living in the Jim Crow South who had the freedom to move to northern states?
4.1.2009 5:38pm
one of many:
One of the interesting points of the pro-DC voting arguments that if they are taken at their face value there is nothing to prevent congress from granting DC 200 senators and 2000 representatives, guaranteeing a Democrat majority in both houses of congress for the foreseeable future. If congress' legislative power over the district is sufficient to create congressional seats for it and the power to determine membership is strong enough to create new seats there is no constitutional bar having DC voters control the congress. Perhaps I'm missing something but as a constitutional matter the seems to be no limit to congress seats for DC under the pro arguments I've seen.
4.1.2009 5:40pm
hawkins:

since all the Congressmen spend time there, Congress already has too much incentive to spend money on DC for purely selfish reasons.


The benefit of spending considerable time in a nice place pales in comparison to the benefit received from allocating funds to their home districts.


ample incentive to take care of the city out of national pride


This assumes that Congressmen seek funding for their home districts out of local pride, rather than for mostly selfish reasons.
4.1.2009 5:40pm
My Middle Name Is Ralph:

The same justification there was for having the federal district not be part of any state in the first place: having the seat of government be on "neutral ground."


Your point makes sense if we're talking about DC becoming a state. It doesn't make any sense if we're just talking about giving DC some sort of voting rights. Allowing DC to elect a representative to the House in no way undermines the original purpose of having the capital in a federal district under the authority of Congress because DC would still be in a federal district under the authority of Congress.
4.1.2009 5:46pm
Soronel Haetir (mail):
How about changing DC residency requirements? It seems fairly undisputed that Congress controls (through the executive) who lives on military bases, who stays in national parks etc.

Perhaps we just need to kick everyone out who is not somehow related to running the government.

I do find it interesting how land ceded to the feds was then paceled out for residental living, the history behind that might be interesting.
4.1.2009 5:46pm
Oren:

Oren: If we are going to quibble about constitutional technicalities, it is only an unconstitutional condition with respect to "the People of the several States."

Surely if we can read "the People of the several States" to include "People not of any State", then all constitutional technicalities are out the window.

Fine. Accepted.
4.1.2009 5:47pm
hawkins:

If you mean under the Article V amendment process, that is a reasonable policy question. FWIW, that has been tried before and failed the political test of ratification, whatever the policy merits.


I dont believe DC will receive voting rights for constitutional reasons (Amendment is necessary) and political reasons (the nation is too evenly divided to ratify an Amendment that clearly benefits one party). I was trying to isolate both of these considerations.
4.1.2009 5:48pm
My Middle Name Is Ralph:

If you mean under the Article V amendment process, that is a reasonable policy question. FWIW, that has been tried before and failed the political test of ratification, whatever the policy merits.


Giving DC the same congressional representation as if it were a state (i.e., a House member and two senators) was a proposed constitutional amendment and failed. There's never been a constitutional amendment giving DC representation in the House only (similar to what is being proposed in the DC Voting Bill).
4.1.2009 5:49pm
Michelle Dulak Thomson (mail):
hawkins,

I don't think such considerations are very relevant today. Do others disagree?

Certainly they're less "relevant" today, in that the states are now less, um, "states" than administrative districts. We have a lot of current dangers, but individual states starting to act again like sovereign nations doesn't rank way up there.

All the same, the idea of the seat of federal government belonging to none of the states makes practical and symbolic sense.

I feel the same way about the electoral college.

Now, see, I feel completely differently about the Electoral College. I mean, quite apart from whether you want states to have their own characters, to retain a sort of corporate voice in national affairs (I do; maybe you don't), the practical problem of abolishing the Electoral College is tremendous. Do you really want to think about a close Presidential election in which the recount has to be, not in one state, but all of them?
4.1.2009 5:50pm
hawkins:

Now, see, I feel completely differently about the Electoral College. I mean, quite apart from whether you want states to have their own characters, to retain a sort of corporate voice in national affairs (I do; maybe you don't), the practical problem of abolishing the Electoral College is tremendous. Do you really want to think about a close Presidential election in which the recount has to be, not in one state, but all of them?


Valid points
4.1.2009 6:00pm
hawkins:

Now, see, I feel completely differently about the Electoral College. I mean, quite apart from whether you want states to have their own characters, to retain a sort of corporate voice in national affairs (I do; maybe you don't), the practical problem of abolishing the Electoral College is tremendous. Do you really want to think about a close Presidential election in which the recount has to be, not in one state, but all of them?


Valid points
4.1.2009 6:00pm
Oren:

Do you really want to think about a close Presidential election in which the recount has to be, not in one state, but all of them?

The larger the pool, the less likely of the vote being close enough to merit a recall, assuming the measurement error is the same.
4.1.2009 6:20pm
martinned (mail) (www):

The larger the pool, the less likely of the vote being close enough to merit a recall, assuming the measurement error is the same.

Wiki List of US Presidential elections by popular vote margin
4.1.2009 6:33pm
Just an Observer:
This thread has drifted to the merits of D.C. voting representation (for which I share some culpability).

But I still am interested in the process issues raised by Holder overruling the OLC lawyer(s). I wonder if the outcome would have been the same if the AAG position at the head of OLC were filled.

It may be that Dawn Johnsen, who has staked out a pretty strong position favoring OLC process independence, if confirmed would have made a stand in support of the OLC memos. (Then again, perhaps she agrees with Holder on the merits. I don't know.) Since Johnsen's confirmation has become a partisan struggle, and Sen. Specter is pressing her to voice opinions on a variety of legal issues, I expect that this incident will feed that fire somehow.
4.1.2009 6:34pm
Michelle Dulak Thomson (mail):
Oren,

The larger the pool, the less likely of the vote being close enough to merit a recall [recount?], assuming the measurement error is the same.

It's true, obviously, that with 50 states the likelihood of a given state being "too close to call" is a lot greater than that of the whole country being "too close to call." But in 2000 the popular vote margin was about 500,000 votes, and with such high stakes and over 100 million ballots cast, don't you think there would've had to have been a nationwide recount, were the popular vote the arbiter?

Yeah, it's an exceptional case. But when an exceptional case has actually happened within the last decade, you are more or less obliged to act as though it might happen again.
4.1.2009 6:41pm
PubliusFL:
martinned: Wiki List of US Presidential elections by popular vote margin

So 6 of the 47 elections with nationwide popular vote reported have had a margin of victory of less than 1%. That's a little more than 1 out of 8. 3 of the 13 elections held within the past 50 years (a little over 23%) have had a margin of victory of less than 1%.

The other problem with a nationwide popular vote is that even if the final reported margin is wide enough to avoid a nationwide recount, it is more likely that the margin will be due to fraud. Voter fraud is harder to hide where elections are closely contested, and easier to accomplish in areas where one party has total control. With the current system, there's little incentive for party machines to rack up big vote totals with fraudulent votes in places with no competition. With a nationwide popular vote, that would change.
4.1.2009 7:11pm
JoeSixpack (mail):
"Wouldn't your "reasoning" have applied equally to blacks living in the Jim Crow South who had the freedom to move to northern states?"

No, it wouldn't. Interesting analogy, though. I would say that the District of Columbia not getting a vote in the House of Representatives is more like the Holocaust than the Jim Crow South.
4.1.2009 7:15pm
geokstr:

Mark in Colorado:
I believe that the Constitution means something.

Gosh, you must be one of those fascist neocon troglydite conservatives I read about in the comments here all the time, thinking that the Constitution means something. All intelligent, compassionate, progressive folk already know that the Constitution means anything.
4.1.2009 7:24pm
MarkField (mail):

To add a bit to the policy reason for not giving DC a seat in Congress: since all the Congressmen spend time there, Congress already has too much incentive to spend money on DC for purely selfish reasons.

Also, since DC is the national capital, even if the rest of Congress didn't care selfishly about it because they lived there, they have ample incentive to take care of the city out of national pride.


This may sound good as a matter of theory, but historically Congress has limited expenditures on DC. Given that long-standing practice, I'm not too worried about the theory.


So 6 of the 47 elections with nationwide popular vote reported have had a margin of victory of less than 1%. That's a little more than 1 out of 8. 3 of the 13 elections held within the past 50 years (a little over 23%) have had a margin of victory of less than 1%.


Most states don't require a recount unless the vote totals are within .5% or less. Only 1960 was that close. Even then, an automatic recount rarely changes the result. Take MN, for example, as indicative of how close the candidates need to be for a recount to change the result. The difference there was roughly .007%. The closest popular vote in history (1960) was 20 times that amount.


The other problem with a nationwide popular vote is that even if the final reported margin is wide enough to avoid a nationwide recount, it is more likely that the margin will be due to fraud. Voter fraud is harder to hide where elections are closely contested, and easier to accomplish in areas where one party has total control. With the current system, there's little incentive for party machines to rack up big vote totals with fraudulent votes in places with no competition. With a nationwide popular vote, that would change.


That incentive exists in every single non-presidential election in the country right now, but it doesn't seem to affect our elections.
4.1.2009 7:37pm
trad and anon (mail):
All 538* members of the Congress are required by the nature of their job to spend a great deal of time in Washington, D.C., which necessarily entails, at least at some level, becoming familiar with the trials, tribulations, and affairs of that city. Each therefore is, in some respect, a representative of the District of Columbia and has a selfish interest in DC's well-being, thus obviating the need for separate representation.
In addition to the points others have made, running a city for the benefit of a bunch of elite, transient part-time residents and commuters is completely different from running it for the benefit of the people who actually live there. Your average member of Congress has never even set foot in any part of the city south of the river. Nor are any members of Congress forced to send their children to D.C.'s public schools [1], stand in line at the DMV, or do any of the multitude of other things real residents have to do.

[1] Those who keep their children in their home districts obviously don't have to do that; those who bring them to the capital are either wealthy enough to afford private schools, or they move to the suburbs.
4.1.2009 9:04pm
martinned (mail) (www):

Your average member of Congress has never even set foot in any part of the city south of the river.

Isn't the part of the city south of the river part of Virginia?
4.1.2009 9:14pm
JHU BME:

Excepting that


The House of Representatives shall be composed of members chosen every second year by the people of the several states


Sorry, forgot to mention that HR 665 includes a provision that, for purposes of federal elections only, residents of DC will be considered residents of Maryland (but I'm not sure the same fix works for the "inhabitant" requirement, though I can see why one might argue that if it works for one, it works for both). HR 665 plus Maryland state laws modifying the qualifications for electors of the members of its lower house would pass Constitutional muster, I believe.

Other than the DC Voting Rights Act and HR 665, is there a third choice that (1) would be Constitutional, (2) doesn't involve a Constitutional amendment, and (3) would give DC residents (voting) congressional representation (besides their 3 electoral college votes which might help choose a VP who votes in case of tie in the Senate)?
4.1.2009 9:23pm
martinned (mail) (www):

Sorry, forgot to mention that HR 665 includes a provision that, for purposes of federal elections only, residents of DC will be considered residents of Maryland.

I don't see how that could be enough, given that art. I (8) clearly says that DC has been "ceded" by, in this case, Maryland.

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of Particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings;
4.1.2009 9:32pm
Soronel Haetir (mail):
Again, I would simply say that DC shouldn't /have/ reidents. Problem solved. The various congress critters should be considered residents of their home districts and anyone else have to be in government employe with a job willing to give up the francise for the priviledge of that job.
4.1.2009 11:08pm
trad and anon (mail):
Your average member of Congress has never even set foot in any part of the city south of the river.
Isn't the part of the city south of the river part of Virginia?
Nope, it's Wards 7 and 8, which lie south of the Anacostia river.
4.2.2009 12:04am
Ricardo (mail):
To compare D.C. versus Puerto Rico, the biggest difference is that Puerto Rico is considered "unincorporated" territory. That means the Constitution does not apply in full force there as it is not considered a permanent, integral part of the U.S. in the same way the District of Columbia is. As compensation, Puerto Ricans don't pay any tax on income earned in Puerto Rico. As someone else pointed out, Puerto Ricans get the option of voting for statehood every once in a while and have rejected it.

(and maybe foreign bases - Would the Congressman from Subic Bay please rise?)

There is a Congressman whose constituency includes Subic but he's Filipino and serves in the Congress of the Philippines. Subic Bay base has been closed for almost 20 years. In any case, American citizens who resided in any of the 50 states can vote by absentee ballot in the same jurisdiction they used to vote in once they leave the country.

So if I'm a California resident and I relocate to the U.K. for two years, I can still vote for Representatives and Senators from California. If I move to D.C. and establish residency, I lose Congressional representation. That's not completely indefensible but still strikes me as strange.
4.2.2009 2:17am
Ricardo (mail):
Also, the idea of eliminating income tax for D.C. residents strikes me as incredibly perverse. A significant percentage of D.C. residents work for the U.S. Government so this would amount to a huge tax break for Government employees -- the people who help write and enforce income tax law would not necessarily be paying the tax themselves. At least, certain members of the Obama Administration who have trouble filling out their tax returns correctly would be given a break.
4.2.2009 2:20am
Oren:

But in 2000 the popular vote margin was about 500,000 votes, and with such high stakes and over 100 million ballots cast, don't you think there would've had to have been a nationwide recount, were the popular vote the arbiter?

Most recounts don't move the total more than 0.25%. Combined with reliable optical scan technology (with second chance), even that's ridiculous. At the very minimum, it would be a good chance to get rid of this patchwork of voting methods in favor of a single standard.


Sorry, forgot to mention that HR 665 includes a provision that, for purposes of federal elections only, residents of DC will be considered residents of Maryland

Oh wow. If that's kosher, why not write

For the purposes of Federal elections only all US military personnel based in Germany will be considered residents of IL 1st Congressional District.


Seriously, that's the only way Bobby Rush is going down. He beat Barack Obama for that seat!
4.2.2009 4:20am
Gerry Wenham (mail):
The District Clause itself is at the root of the problem. Starr calls it Majestic" and "Plenary" . I read that as "Monarchical" and "Tyrannical". If you would, read, compare and consider both the Declaratory Act of 1766 and the District Clause. In each, a national legislature attempts to arrogate to itself unwarranted Absolute Power, "in all cases whatsoever", over an unrepresented minority of the national population. This is inconsistent with the fundamental bedrock principle of participatory (lower case democratic or republican) government, known as "Consent of the Governed"
4.2.2009 8:17am
Seamus (mail):
You must not have thought too much of Yoo et al's arguments about the extent of the president's power as commander in chief then.

You bet. Yoo's arguments that the president can do whatever he wants as long as he invokes the Commander-in-Chief Clause and Starr's arguments that Congress can do whatever it wants about D.C. representation in Congress by invoking the Exclusive Legislation Clause are both nonsense.
4.2.2009 10:53am
trad and anon (mail):
Also, the idea of eliminating income tax for D.C. residents strikes me as incredibly perverse. A significant percentage of D.C. residents work for the U.S. Government so this would amount to a huge tax break for Government employees -- the people who help write and enforce income tax law would not necessarily be paying the tax themselves. At least, certain members of the Obama Administration who have trouble filling out their tax returns correctly would be given a break.
Out of a city of 600,000, there are at most a few thousand people in D.C. responsible for writing and enforcing the tax laws. Many of them live in the suburbs and so are not even residents of the city. The vast majority of the federal employees in the city work in some random job that has nothing to do with the tax laws, like "State department secretary," "VA janitor," or "DoJ lawyer, civil rights division." Everyone else works in a job that isn't even part of the federal government—police officer, taxi driver, bartender, pediatrician. But hey, they don't count.

I'm not saying this "tax break for D.C. residents" plan is a good idea, but this is a really stupid reason to oppose it.
4.2.2009 12:15pm
Seamus (mail):

If the residents of DC are so troubled by their "disenfranchisement", they are free to move to Maryland or Virginia. Problem solved.



Wouldn't your "reasoning" have applied equally to blacks living in the Jim Crow South who had the freedom to move to northern states?


No. With relatively few exceptions, blacks living in the Jim Crow South were people whose ancestors had been brought against their will to those states, while current residents of the District of Columbia, with relatively few exceptions, are either people who voluntarily moved there or people whose ancestors voluntarily moved there, even though they knew or should have known that they would be thereby be disenfranchising themselves.
4.2.2009 12:55pm
My Middle Name Is Ralph:

Seamus (mail): You bet. Yoo's arguments that the president can do whatever he wants as long as he invokes the Commander-in-Chief Clause and Starr's arguments that Congress can do whatever it wants about D.C. representation in Congress by invoking the Exclusive Legislation Clause are both nonsense.


We're in agreement.
4.2.2009 1:47pm
My Middle Name Is Ralph:

Seamus (mail): No. With relatively few exceptions, blacks living in the Jim Crow South were people whose ancestors had been brought against their will to those states, while current residents of the District of Columbia, with relatively few exceptions, are either people who voluntarily moved there or people whose ancestors voluntarily moved there, even though they knew or should have known that they would be thereby be disenfranchising themselves.


I have a few problems with your argument:

1. I fundamentally disagree with the notion that you can be estopped from such a fundamental right as voting simply because you knowingly moved to a particular jurisdiction, (at least absent some extremely significant reason residents of that jurisdiction shouldn't be allowed to vote) but I suspect we'll just have to agree to disagree about this.

2. Even if you accept that voluntarily moving to DC is a good basis for some sort of estoppel type argument ("you knew the rules, so you don't have a right to complain about them") you're still left with explaining why disenfranchising DC residents is a good thing. Just because someone does not have a right to complain about something does not mean that the underlying situation is the way it should be.

3. I find the idea that you are legally bound and responsible for the actions of your ancestors (your statement "or people whose ancestors voluntarily moved there") odd and un-American in that you are made responsible for actions other than your own. You must be a big fan of reparations from descendents of slaveholders to descendents of slaves.

4. Going back to the Jim Crow South situation, you acknowledge that, although relatively few, there certainly were blacks who had moved to the Jim Crow South from northern states. Since they voluntarily moved to the Jim Crow South, wouldn't your argument against DC residents being enfranchised at least apply equally to these relatively few blacks in the Jim Crow South?
4.2.2009 2:08pm
Seamus (mail):
I fundamentally disagree with the notion that you can be estopped from such a fundamental right as voting simply because you knowingly moved to a particular jurisdiction, (at least absent some extremely significant reason residents of that jurisdiction shouldn't be allowed to vote) but I suspect we'll just have to agree to disagree about this.

Yes, we certainly will have to disagree. I don't regard voting as a "fundamental right," but simply as an arrangement that may or may not be conducive to liberty and good government. Hong Kong, for example, was the freest country on earth, even before any of its people acquired the right to vote for the Legislative Council in 1991. I have no right to vote in the District of Columbia, even though I probably spend more of my time there than I do in Virginia, where I sleep, yet I don't think I'm deprived of any "fundamental right." (I'm presuming that your argument for voting as a "fundamental right" has something to do with having a say in the laws that one has to live under, but why that should mean only getting a vote where you live but not where you work or do business is hard to fathom.)
4.2.2009 3:09pm
Seamus (mail):
Even if you accept that voluntarily moving to DC is a good basis for some sort of estoppel type argument ("you knew the rules, so you don't have a right to complain about them") you're still left with explaining why disenfranchising DC residents is a good thing. Just because someone does not have a right to complain about something does not mean that the underlying situation is the way it should be.

I didn't say it was a good thing. I was responding to the specious argument that blacks in the Jim Crow South were in an analogous situation to that of residents of the District of Columbia today.
4.2.2009 3:11pm
Oren:

I don't regard voting as a "fundamental right," but simply as an arrangement that may or may not be conducive to liberty and good government.

Well, at least now we are at the bottom of the disagreement.

I think the prevailing opinion (correct me if I'm wrong) is that government by consent is an intrinsic good, preferable irrespective of the quality of government produced.
4.2.2009 3:25pm
Seamus (mail):
I find the idea that you are legally bound and responsible for the actions of your ancestors (your statement "or people whose ancestors voluntarily moved there") odd and un-American in that you are made responsible for actions other than your own. You must be a big fan of reparations from descendents of slaveholders to descendents of slaves.

1. It was a lot more difficult for blacks in the South why didn't like Jim Crow to move away from that system (though far from impossible, as the history of the Great Migration shows) that it is for residents of the District of Columbia to move away if they really want to vote.

2. This point is demonstrated by the fact that the number of voting-age D.C. residents who live there because their ancestors moved there, rather than because they moved there themselves, is relatively small. It's certainly a damn sight smaller than the percentage of blacks in the Old South who lived there because their ancestors were brought there involuntarily (i.e., close to 100%), rather than having moved there voluntarily (i.e., pretty much 0%).

3. We are bound all the time by decisions made by our ancestors. For example, the fact that mine chose to emigrate from Ireland to the United States means that I am deprived me of the right to Irish citizenship. (If it had been my grandfather rather than my great-grandfather who was the emigrant, I'd have a chance, but as it is I'm SOL. Boo-effing-hoo.)
4.2.2009 3:28pm
Seamus (mail):
Going back to the Jim Crow South situation, you acknowledge that, although relatively few, there certainly were blacks who had moved to the Jim Crow South from northern states. Since they voluntarily moved to the Jim Crow South, wouldn't your argument against DC residents being enfranchised at least apply equally to these relatively few blacks in the Jim Crow South?

I acknowledge no such thing. I acknowledge only the possibility that such people existed. In any event, no one would have bothered to enact laws that would have required black immigrants from the North (but not native-born black Southerners) to sit in separate sections of buses and theaters, to use different drinking fountains, to attend different schools. But yeah, if it had been feasible to do such a thing, immigrants from the north would have had a lot less of a beef than native-born blacks would have for the same treatment. (Similarly, I always found it interesting that, back in the days of apartheid, South Africa had a problem with illegal immigration by people from other African states entering South Africa. I think a pretty good argument could be made that those immigrants had a lot less ground for complaint than the native-born South African blacks. Similarly, a lot was made, about the time of the first Gulf War, of the fact that about half the population of Kuwait was made up of people who couldn't vote because they were non-citizens. That never struck me as a terrible injustice. They could always go back to Palestine, or wherever they or their ancestors came from. (Palestinians who came, or whose ancestors came, from portions of Palestine now governed by Israel might not have as much of an option as those who came from the West Bank or Gaza, but again, Kuwait was under no obligation to take in Palestinian refugees at all, so it should have had the right to take them in under the condition that they wouldn't become citizens.))
4.2.2009 3:43pm
Seamus (mail):
I think the prevailing opinion (correct me if I'm wrong) is that government by consent is an intrinsic good, preferable irrespective of the quality of government produced.

That's a debatable point, but irrelvant here, because pretty much everybody who lives in the District of Columbia can be said to have consented to the governmental arrangements there, because the option of moving away is so readily available.

Consent does not depend on suffrage. I have no vote in the District of Columbia, and thus no power to affect D.C.'s gun control law, yet I implicitly consent to it every time I voluntarily enter the District to come to work. It's not an injustice (except in the sense that it's an injustice to everyone, resident or non-resident alike, not to be allowed the means of self-defense while in the District).
4.2.2009 3:50pm
trad and anon (mail):
No. With relatively few exceptions, blacks living in the Jim Crow South were people whose ancestors had been brought against their will to those states, while current residents of the District of Columbia, with relatively few exceptions, are either people who voluntarily moved there or people whose ancestors voluntarily moved there, even though they knew or should have known that they would be thereby be disenfranchising themselves.
So what? Let's write out the syllogism:

Some people voluntarily moved to D.C.
The cost of moving out of D.C. is not as high as the cost of moving out of the South.
Therefore, residents of D.C. should be denied the right to vote.
4.2.2009 6:02pm
Ricardo (mail):
Out of a city of 600,000, there are at most a few thousand people in D.C. responsible for writing and enforcing the tax laws.

Not disputed. The proportion of all influential people who are involved in the business of income tax law who live in D.C. is likely to be higher. There will be a big incentive for people from all walks of life to move to D.C. once they find out they can save $10,000-$20,000 in income taxes.

I'm not saying this "tax break for D.C. residents" plan is a good idea, but this is a really stupid reason to oppose it.

I said it was perverse since one of the ideas of the rule of law is that rulers should be bound by the same set of laws that apply to those being ruled. I didn't say this was the principal reason to oppose it -- I think other grounds for opposition have already been covered above. What an incredibly rude response.
4.2.2009 11:58pm
PubliusFL:
Oren: I think the prevailing opinion (correct me if I'm wrong) is that government by consent is an intrinsic good, preferable irrespective of the quality of government produced.

I dunno about that. Let's look at the Declaration of Independence:


We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.


So yeah, the government derives its just powers from the consent of the governed, and they have the right to abolish it when it becomes destructive of its ends, but it seems to me that the ENDS are what is really important, and those are to secure the rights to life, liberty, and pursuit of happiness. A government that has frequent and free elections but is in fact destructive of these ends is certainly not, in my opinion, preferable to an absolute monarchy that in fact protects the fundamental rights of the people. In practice, it's reasonable to conclude that representative government is more likely to protect the people's rights, but the rights are the end and representative government merely the means.
4.3.2009 1:22am
Oren:


That's a debatable point, but irrelvant here, because pretty much everybody who lives in the District of Columbia can be said to have consented to the governmental arrangements there, because the option of moving away is so readily available.

No, it's not irrelevant. It is a tautology that no one can freely trade away an intrinsic good (if they did, it would be an instrumental good, not an intrinsic one).


Consent does not depend on suffrage. I have no vote in the District of Columbia, and thus no power to affect D.C.'s gun control law, yet I implicitly consent to it every time I voluntarily enter the District to come to work.

You are confusing individual consent and collective consent. By the same token, whether or not I consent to MA's gun laws (or criminal law generally) has no bearing on the legitimacy of that law -- that hinges on whether The People have collectively consented to it.
4.3.2009 1:52am
Oren:

A government that has frequent and free elections but is in fact destructive of these ends is certainly not, in my opinion, preferable to an absolute monarchy that in fact protects the fundamental rights of the people.

We'll have to disagree there. I believe people have the right to get what they want, even if what they want is objectively worse than some other possibility.

I read the DOI quite opposite than you, focusing on the fact that no government can be considered just without the consent of the governed. Of course, the purpose of the government is to achieve some ends, but The People can implement the mechanics however they want but cannot bind the future to any implementation. That is to say, the right to change the mechanics is inalienable.

Hypothetically then, the DOI (reifying here for ease of syntax, it's 2AM) would have no problem with The People decided to have an absolute monarchy, but it would be a funny kind of monarchy because The People would have the right to alter or abolish it anytime in the future. They cannot be alienated from that right, even by their own consent.
4.3.2009 2:01am
Seamus (mail):

So what? Let's write out the syllogism:

Some people voluntarily moved to D.C.
The cost of moving out of D.C. is not as high as the cost of moving out of the South.
Therefore, residents of D.C. should be denied the right to vote.



That's not a valid syllogism. In fact, it's not a syllogism at all.
4.3.2009 9:53am

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