The Best Way to Give D.C. a House Seat Is Also the Only Way
posted by Brian Kalt
Professor Rick Hasen has a piece up at Slate on the D.C. Voting Rights bill. He says that the bill—which would give D.C. residents a voting member of the House of Representatives—is “probably unconstitutional,” but that “Congress should pass it” anyway. That’s what the Washington Post editorial board thinks too, saying that Congress should leave constitutional-law debates to the courts and do what is right. They agree with Rep. Steny Hoyer that “the case should be made on principle, not technicalities.”
Since when is adherence to the Constitution a technicality, and not a principle? I agree that D.C. residents deserve representation, and I would support a constitutional amendment to give them some (or perhaps to let them go back to being part of Maryland). But I think that an amendment is necessary, because the Constitution limits the House to members from “the several states,” and D.C. is not a state.
To me, Hoyer’s dismissal of the Constitution—as a technicality to be brushed aside—is the opposite of principled. This country is not better off when it encourages members of Congress to abdicate their responsibility and their oath to support the Constitution. Our belt-and-suspenders system is supposed to give us multiple lines of defense against unconstitutional laws: the House, the Senate, the president, and the courts are all supposed to agree that a law is constitutional before it can be used. Leaving it to just the courts is like taking off the belt and one of the suspenders, and having the remaining suspender be very loose. I would very much prefer to keep America’s pants on.
Hasen is subtler, and his points are more defensible. He says that there is a non-frivolous argument that the bill is constitutional. I agree. Ken Starr and Viet Dinh—not the most likely advocates for a D.C. House seat—have argued that Congress can give D.C. a House seat under its plenary power to govern D.C. They provide some analogies. The Supreme Court has let Congress treat D.C. as a state for purposes of diversity jurisdiction in federal courts, for instance. If Congress can expand the powers of the federal courts set in Article III, why not let it get fancy with the “several States” clause that governs the House? Structurally, allowing it to do so is more consistent with the broad constitutional theme of voting rights and representation.
Hasen is not convinced, but he says that the argument is good enough that members of Congress can vote for the bill with a clear conscience. I don’t agree.
Starr and Dinh are right, of course, that Congress has plenary power to govern D.C. With that power, they can treat D.C. like a state for things like regulating interstate commerce, setting up diversity jurisdiction, and many other things. But doing those things is part and parcel of governing D.C.
By contrast, giving D.C. a seat in the House is governing the U.S., not D.C. It’s no more about governing D.C. than giving Microsoft a seat in the House would be regulating interstate commerce. I don’t read the Constitution as giving Congress the power to constitute itself like that, even under cover of a plenary power.
And what about the Senate? If D.C. is enough of a “state” that it can be part of the House, how is it not also enough of a “state” to get two seats in the Senate? If the answer is that Congress can “govern D.C.” any way that it wants, then presumably Congress would have the power to give D.C. zero senators. But it could then also give D.C. two senators. Or maybe even three. “But wait,” you say. “The Constitution says that each state only gets two senators.” True enough. But D.C. isn’t a state, remember? It doesn’t have to have any senators. If it can have zero, why not three?
Consider also that Article IV of the Constitution gives Congress a sort of plenary power over federal territories. Let’s go back to the diversity-jurisdiction statute on which Starr and Dinh put so much weight. Not only does that law treat D.C. as a state, it treats Puerto Rico as one too. If the current Democratic majority in Congress can legislate a new (Democratic) House seat for D.C., then they could also add six Democratic ones from Puerto Rico too, and maybe a few senators while they’re at it. To me, it takes a strained reading of the Constitution to convert the federal government’s ability to govern D.C. and the territories, and translate that into a power of the current congressional majority to open up Congress to non-states and deal itself a bunch of new votes.
Remember that Hasen doesn’t agree with Starr and Dinh either. He just thinks their argument is good enough to let members of Congress vote for the bill honestly (assuming that they are saying that they agree with Starr and Dinh, not just that they acknowledge their existence), and leave it to the courts to sort it all out. Further, Hasen thinks that it would be good for the bill to pass, because if the Supreme Court strikes it down, it will move the issue to the front burner and make it easier to get a constitutional amendment through.
Again, I could support a D.C. representation amendment. But I’m skeptical about Hasen’s chain of events. When the 23rd Amendment passed Congress, the Democrats (who then and now could count on winning any election in D.C.) were just two seats shy of a two-thirds majority in the House, and only eight seats short in the Senate. They therefore needed very little Republican support. Also, at the time D.C. had a larger population than eleven states, and it had no federal representation at all. The injustice was greater.
Today, by contrast, the Democrats are much farther away from a two-thirds majority, making it much easier for Republicans to derail a constitutional amendment. And D.C. has a weaker case, as it now only outweighs one state by population, and already votes for president. Democrats could bludgeon the Republicans with some pretty good arguments about taxation without representation, not to mention the obvious racial angle. But they could do that now. The problem, as Hasen points out, is that the country has much bigger problems to worry about right now. It’s hard to imagine, though, that the path to an amendment would be made that much smoother by passing an unconstitutional law and having the Supreme Court strike it down.
The smoothest path would be for Congress to have an honest constitutional-law debate and vote on the bill in good faith; and for the Court to uphold the law. I wouldn’t complain about that happening. I just don’t think that any part of it ever would.