Thursday, February 26, 2009

Senate Votes to Gives DC a House Vote

The Senate passed a bill that gives the District of Columbia (Washington DC) a vote in the House. The vote was 61-27 mostly along party lines with two Democrats voting no and six Republicans voting yes.(

Beyond the blatant political move of giving the strongly Democratic DC a voting member in the House, the bill is blatantly Unconstitutional. The Constitution says that House representatives shall be picked by "people of the several states"; DC is not a state. The bill adds two seats, one to DC and the other based on the population of the states. For the next two years that would be Utah. After the census in 2010 that seat could be transferred away based on the count. Utah was/is largely expected to pick up a seat in 2010 without this bill.

Given the politics, the House will almost certainly pass it and Obama has already promised to sign it into law. It would then likely be up to on of the states to bring a Constitutional challenge against the bill arguing that it diluted their voting power. I can not think of a good legal argument that could be used nor have I come across one meaning the Supreme Court would probobly strike it down.

If they want to give DC a vote legally, they need to either amend the Constitution or make DC a State. They could also merge DC in to one of its surrounding states for purpose of voting for representation.

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  1. Your Constitutional analysis of whether or not Congress can give D.C. a voting member in the House of Representatives is short-sighted and most likely incorrect. You dismiss the Constitutionality of the bill simply because the Constitution says the House shall be chosen by the people of the several states. Yet, you fail to consider three things. First, Congress has broad, plenary power over the District of Columbia. Second, even though Article III says that the Federal courts have jurisdiction over cases between citizens of different states, but does not mention the District of Columbia. Yet, Congress extended this jurisdiction to D.C. via legislation, not Constitutional Amendment and it was upheld. The case is called Mutual Ins. v. Tidewater. Finally, of course the Constitution does not refer to D.C. because D.C. did not exist when it was written. So, as you can plainly see, the issue is much more nuanced than you allowed. On a side note, do you believe D.C. should have a voting member in Congress?

  2. I am not a Constitutional lawyer, so you may be correct. My analysis in this post is heavily based on articles written about it, most of which have reached the same conclusion.

    Looking at the text, it seems pretty clear; representatives shall be picked by "people of the several states". Congress is given broad plenary power over DC, but I do not believe it is sufficient to override the Constitution. If Congress passed a law eliminating free speech rights in DC, do you think that would be upheld?

    The Jurisdictional issue you point out may create a difficult problem. Assuming it is illegal, who can bring a case and who can hear it? If it was just about DC that may make it more difficult, but it is not. Texas could bring suit against Utah which could result in the entire bill being struck down.

    Yes there is potential nuance but I believe that in the end this will be struck down. I think supporters know it too which is why they tried to make a Constitutional Amendment in 1978 which ultimately failed.

    I am a firm believer in Democracy and representation. To that end, I believe that the residents of DC should be able to vote both for Senate and House representatives. The solution I would suggest is that DC should be merged into one of the surrounding states for the purpose of voting for representatives.


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