             Constitutionality of the D.C. Voting Rights Act of 2007
S. 1257, a bill to grant the District of Columbia representation in the House of Representatives as well
   as to provide an additional House seat for Utah, violates the Constitution’s provisions governing the
   composition and election of the United States Congress.

                                                                                             May 23, 2007

                         TESTIMONY BEFORE THE SUBCOMMITTEE ON THE
                       CONSTITUTION, CIVIL RIGHTS, AND PROPERTY RIGHTS
                          OF THE SENATE COMMITTEE ON THE JUDICIARY

    Thank you for the opportunity to discuss the Department’s views on S. 1257, a
bill to grant the District of Columbia representation in the House of Representa-
tives as well as to provide an additional House seat for Utah. For the same reasons
stated in the Statement of Administration Policy on the House version of this
legislation, the Administration concludes that S. 1257 violates the Constitution’s
provisions governing the composition and election of the United States Congress.
Accordingly, if S. 1257 were presented to the President, his senior advisors would
recommend that he veto the bill. I will confine my testimony to the constitutional
issues posed by the legislation.
    The Department’s constitutional position on the legislation is straightforward
and is dictated by the unambiguous text of the Constitution as understood and
applied for over 200 years. Article I, Section 2 of the Constitution provides:

              The House of Representatives shall be composed of Members cho-
              sen 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.

(Emphases added.)
   This language, together with the language of eleven other explicit constitutional
provisions, including the Twenty-Third Amendment ratified in 1961, 1 “makes
clear just how deeply Congressional representation is tied to the structure of
statehood.” 2 The District of Columbia is not a state. In the absence of a constitu-
tional amendment, therefore, the explicit provisions of the Constitution do not
permit Congress to grant congressional representation to the District through
legislation.



       1
           E.g., U.S. Const. art. I, §§ 2–4; art. II, § 1, cl. 2; amend. XIV, § 2; amend. XVII; amend. XXIII,
§ 1.
       2
           Adams v. Clinton, 90 F. Supp. 2d 35, 47 (D.D.C.) (per curiam), aff’d, 531 U.S. 941 (2000).




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    Shortly after the Constitution was ratified, the District of Columbia was estab-
lished as the seat of government of the United States in accordance with Article I,
Section 8, Clause 17 of the Constitution. The Framers deliberately placed the
capital in a federal enclave that was not itself a state to ensure that the federal
government had the ability to protect itself from potentially hostile state forces.
The Framers also gave Congress “exclusive” authority to enact legislation for the
internal governance of the enclave to be chosen as the seat of government—the
same authority Congress wields over the many other federal enclaves ceded by the
states.
    Beginning even before the District of Columbia was established as the seat of
government, and continuing to today, there have been determined efforts to obtain
congressional representation for the District. Apart from the various unsuccessful
attempts to secure such representation through litigation, such efforts have
consistently recognized that, because the District is not a state, a constitutional
amendment is necessary for it to obtain congressional representation. S. 1257
represents a departure from that settled constitutional and historical understanding,
which has long been recognized and accepted by even ardent proponents of
District representation.
    One of the earliest attempts to secure congressional representation for the seat
of government was made by no less a constitutional authority than Alexander
Hamilton at the pivotal New York ratifying convention. Recognizing that the
proposed Constitution did not provide congressional representation for those who
would reside in the seat of government, Hamilton offered an amendment to the
Enclave Clause that would have provided:

        That When the Number of Persons in the District of Territory to be
        laid out for the Seat of the Government of the United States, shall
        according to the Rule for the Apportionment of Representatives and
        Direct Taxes Amount to [left blank] such District shall cease to be
        parcel of the State granting the Same, and Provision shall be made
        by Congress for their having a District Representation in that Body. 3

Hamilton’s proposed amendment was rejected. Other historical materials further
confirm the contemporary understanding that the Constitution did not contemplate
congressional representation for the District and that a constitutional amendment
would be necessary to make such provision. 4 These historical facts refute the


   3
      5 The Papers of Alexander Hamilton 189–90 (Harold C. Syrett ed., 1962) (emphasis added).
   4
      See 10 Annals of Cong. 991, 998–99 (1801) (remarks of Rep. John Dennis of Maryland) (stating
that because of District residents’ “contiguity to, and residence among the members of [Congress],”
that “though they might not be represented in the national body, their voice would be heard. But if it
should be necessary [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”); see also 5 The




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contention by proponents of S. 1257 that the Framers simply did not consider the
lack of congressional representation and, if they had considered it, that they would
have provided such representation. In fact, Framers and ratifiers did consider the
question and rejected a proposal for such representation.
   In more recent years, major efforts to provide congressional representation for
the District were pursued in Congress in the 1960s and 1970s, but on each
occasion Congress expressly recognized that obtaining such representation would
require either statehood or a constitutional amendment. For example, when the
House Judiciary Committee favorably recommended a constitutional amendment
for District representation in 1967, it stated as follows:

        If the citizens of the District are to have voting representation in the
        Congress, a constitutional amendment is essential; statutory action
        alone will not suffice. This is the case because provisions for elec-
        tions of Senators and Representatives in the Constitution are stated in
        terms of the States, and the District of Columbia is not a State. 5

Congress again considered the District representation issue in 1975, and the House
Judiciary Committee again expressly acknowledged that, “[i]f the citizens of the
District are to have voting representation in Congress, a constitutional amendment
is essential; statutory action will not suffice.” 6
    Of course, the courts have not directly reviewed the constitutionality of a stat-
ute purporting to grant the District representation because, for the reasons so
forcefully reiterated by the House Judiciary Committee, Congress has not
previously considered such legislation constitutionally permissible. But numerous
federal courts have emphatically concluded that the existing Constitution does not
permit the provision of congressional representation for the District. In Adams v.
Clinton, a three-judge court stated, in a decision affirmed by the Supreme Court,
that “the Constitution does not contemplate that the District may serve as a state
for purposes of the apportionment of congressional representatives” and stressed
that Article I “makes clear just how deeply Congressional representation is tied to
the structure of statehood.” 90 F. Supp. 2d 35, 46–47, 50 (D.D.C.) (per curiam),
aff’d, 531 U.S. 941 (2000); see generally S. Ry. Co. v. Seaboard Allied Milling
Corp., 442 U.S. 444, 462 (1979) (stating that summary affirmance is a preceden-

Documentary History of the Ratification of the Constitution 621 (John P. Kaminski & Gaspare J.
Saladino eds., 1998) (statement by Samuel Osgood, a delegate to the Massachusetts ratifying
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).
    5
      Providing Representation of the District of Columbia in Congress, H.R. Rep. No. 90-819, at 4
(1967) (emphasis added).
    6
      Providing Representation of the District of Columbia in Congress, H.R. Rep. No. 94-714, at 4
(1975).




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tial ruling on the merits). In Banner v. United States, a panel of the D.C. Circuit
that included Chief Justice John Roberts flatly concluded: “The Constitution
denies District residents voting representation in Congress. . . . Congress is the
District’s Government, see U.S. Const. art. I, § 8, cl. 17, and the fact that District
residents do not have congressional representation does not alter that constitutional
reality.” 428 F.3d 303, 309 (D.C. Cir. 2005) (per curiam). 7 The court added: “It is
beyond question that the Constitution grants Congress exclusive authority to
govern the District, but does not provide for District representation in Congress.”
Id. at 312. And in explaining why the Constitution does not permit the District’s
delegate in Congress to have the voting power of a representative in Michel v.
Anderson, 817 F. Supp. 126 (D.D.C. 1993), the court stressed that the legislative
power “is constitutionally limited to ‘Members chosen . . . by the People of the
several States.’ U.S. Const. art. I, § [2], cl. 1.” Id. at 140.
    The numerous explicit provisions of the constitutional text; the consistent con-
struction of those provisions throughout the course of American history by courts,
Congress, and the Executive; 8 and the historical evidence of the Framers’ and
ratifiers’ intent in adopting the Constitution conclusively demonstrate that the
Constitution does not permit the granting of congressional representation to the
District by simple legislation.
    We are aware of, and not persuaded by, the recent and novel claim that this
legislation should be viewed as a constitutional exercise of Congress’s authority
under the Enclave Clause, U.S. Const. art. I, § 8, cl. 17, to “exercise exclusive
legislation” over the seat of government and other federal enclaves. That theory is
insupportable. First, it is incompatible with the plain language of the many
provisions of the Constitution that, unlike the Enclave Clause, are directly and
specifically concerned with the composition, election, and very nature of the
House of Representatives and the Congress. Those provisions were the very
linchpin 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.


    7
      Judge Roberts was a member of the D.C. Circuit when Banner was briefed and argued, but was
serving as Chief Justice when the opinion issued. See Banner, 428 F.3d at 304–05 n.1.
    8
      See, e.g., Letter for Mr. Benjamin Zelenko, Committee on the Judiciary, House of Representa-
tives, from Martin F. Richman, Acting Assistant Attorney General, Office of Legal Counsel (Aug. 11,
1967) (expressing the view that “a constitutional amendment is essential” for the District to obtain
voting representation in Congress in the recommendations for the Committee Report on a proposed
constitutional amendment); District of Columbia Representation in Congress: Hearings on S.J. Res. 65
Before the Subcomm. on the Constitution of the Comm. on the Judiciary, 95th Cong. 16–29 (1978)
(statement of John M. Harmon, Assistant Attorney General, Office of Legal Counsel). In endorsing a
constitutional amendment as the means of obtaining congressional representation for the District, Mr.
Harmon discussed the alternative ways of obtaining such representation, particularly the option of
statehood legislation. Conspicuous by its absence was any suggestion that such representation could be
provided through legislation granting the District a seat.




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                      Constitutionality of the D.C. Voting Rights Act of 2007


Consequently, every word of Article I’s provisions concerning the composition
and election of the House and the Senate—and particularly the words repeatedly
linking congressional representation to “each State” or “the People of the several
States”—was carefully chosen. In contrast, the Enclave Clause has nothing to do
with the composition, qualifications, or election of members of Congress. Its
provision for “exclusive legislation” concerns legislation respecting the internal
operation of “such District” and other enclaves. The Enclave Clause gives
Congress extensive legislative authority “over such District,” but that authority
plainly does not extend to legislation affecting the entire nation. S. 1257 would
alter the very nature of the House of Representatives. By no reasonable construc-
tion can the narrowly focused provisions of the Enclave Clause be construed to
give Congress such sweeping authority.
    Second, whatever power Congress has under the Enclave Clause is limited by
the other provisions of the Constitution. As stated by the Supreme Court in Binns
v. United States, 194 U.S. 486 (1904), the Enclave Clause gives Congress plenary
power over the District “save as controlled by the provisions of the Constitution.”
Id. at 491. As the Supreme Court has further explained, the Clause gives Congress
legislative authority over the District and other enclaves “in all cases where
legislation is possible.” 9 The composition, election, and qualifications of members
of the House are expressly and specifically governed by other provisions of the
Constitution that tie congressional representation to statehood. The Enclave Clause
gives Congress no authority to deviate from those core constitutional provisions.
    Third, the notion that the Enclave Clause authorized legislation establishing
congressional representation for the seat of government is contrary to the contem-
porary understanding of the Framers and the consistent historical practice of
Congress. As I mentioned earlier, the amendment unsuccessfully offered by
Alexander Hamilton at the New York ratifying convention to authorize such
representation when the seat of government’s population reached a certain level
persuasively demonstrates that the Framers did not read the Enclave Clause to
authorize or contemplate such representation. Other contemporaneous historical
evidence reinforces that understanding. See supra note 4. Moreover, Congress’s
consistent recognition in practice that constitutional amendments were necessary
not only to provide congressional representation for the District, but also to grant it
electoral votes for President and Vice President under the Twenty-Third Amend-
ment, belies the notion that the Enclave Clause has all along authorized the
achievement of such measures through simple legislation. Given the enthusiastic
support for such measures by their congressional proponents, it is simply implau-
sible that Congress would not previously have discovered and utilized that
authority as a means of avoiding the enormous difficulties of constitutional
amendment.

   9
       O’Donoghue v. United States, 289 U.S. 516, 539 (1993) (citation omitted).




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    Fourth, the proponents’ interpretation of the Enclave Clause proves far too
much; the consequences that would necessarily flow from acceptance of that
theory demonstrate its implausibility. As the Supreme Court has recognized, “[t]he
power of Congress over federal enclaves that come within the scope of Art. I, § 8,
cl. 17, is obviously the same as the power of Congress over the District of
Columbia.” 10 It follows that if Congress has constitutional authority to provide
congressional representation for the District under the Enclave Clause, it has the
same authority for the other numerous federal enclaves (such as various military
bases and assorted federal lands ceded by the states). But that is not all. The
Supreme Court has also recognized that Congress’s authority to legislate respect-
ing the U.S. territories under the Territories Clause, U.S. Const. art. IV, § 3, cl. 2,
is equivalent to its “exclusive legislation” authority under the Enclave Clause. See,
e.g., Binns, 194 U.S. at 488. If the general language of the Enclave Clause
provides authority to depart from the congressional representational provisions of
Article I, it is not apparent why similar authority does not reside in the Territories
Clause, which would enable Congress to enact legislation authorizing congres-
sional representation for Puerto Rico, the Virgin Islands, and other territories.
These unavoidable corollaries of the theory underlying S. 1257 demonstrate its
invalidity. 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 additional seats under the Enclave Clause.
    Finally, we note that the bill’s proponents conspicuously fail to address another
logical consequence that flows from the Enclave Clause theory: If Congress may
grant the District representation in the House by virtue of its purportedly expan-
sive authority to legislate to further the District’s general welfare, it follows
logically that it could use the same authority to grant the District (and other
enclaves and territories) two Senators as well.
    At bottom, the theory that underlies S. 1257 rests on the premise that the Fram-
ers drafted a Constitution that left the door open for the creation of an indefinite
number of congressional seats that would have fatally undermined the carefully
crafted representation provisions that were the linchpin of the Constitution. Such a
premise is contradicted by the historical and constitutional record.
    The clear and carefully phrased provisions for state-based congressional repre-
sentation constitute the very bedrock of our Constitution. Those provisions have
stood the test of time in providing a strong and stable basis for the preservation of
constitutional democracy and the rule of law. If enacted, S. 1257 would undermine
the integrity of those critical provisions and open the door to further deviations


   10
        Paul v. United States, 371 U.S. 245, 263–64 (1963).




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                 Constitutionality of the D.C. Voting Rights Act of 2007


from the successful framework that is our constitutional heritage. If the District is
to be accorded congressional representation without statehood, it must be accom-
plished through a process that is consistent with our constitutional scheme, such as
amendment as provided by Article V of the Constitution.

                                                 JOHN P. ELWOOD
                                           Deputy Assistant Attorney General
                                               Office of Legal Counsel




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