Congressional Research Service: DC Vote Plan Unconstitutional

The Macaca Post reports:

The research arm of Congress says that legislation to give the District a vote in the House of Representatives is probably unconstitutional, a finding that could jeopardize its chances of passage, officials and analysts said yesterday.

The report by the Congressional Research Service is not binding, and its conclusions reflect what some prominent legal scholars have been warning for years. But it could carry extra weight because the service generally gets high marks for its nonpartisan advice to the House and Senate.

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The D.C. vote bill seeks to gain bipartisan support by increasing the size of the House from 435 to 437 seats. One new seat would go to the District, which is overwhelmingly Democratic; the other would go to Utah, the state next in line to increase its delegation according to Census returns and a Republican stronghold.

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The latest report focuses on the two parts of the Constitution that are at the center of the D.C. vote debate. One is a clause that limits House membership to individuals chosen "by the People of the several States." Courts have determined that the phrase excludes the District, the report says.

The second relevant part of the Constitution, the "District Clause," grants Congress broad authority over the city. The bill's proponents note that the Supreme Court ruled in 1949 that Congress could use its powers to give D.C. residents the same rights as other citizens.

That case, National Mutual Insurance Co. v. Tidewater, concerned the right to have a federal court hear lawsuits involving people of two states.

But the research service says that ruling was narrow. Six justices wrote that the congressional powers over the District weren't big enough to justify making "structural changes to the federal government," the report says. Giving a vote to the District would be such a change, it says.

The use of the so-called "District Clause" not only doesn't pass the laugh test, it doesn't have any effect on the constitutional structure of Congress. It merely gives Congress state-like authority over the district.

AEI's John Fortier adds:

There are only three constitutional ways for D.C. to gain representation in Congress. First, D.C. could be admitted as a state. Second, the Constitution could be amended to give House and/or Senate representation to the District. Third, D.C. could be ceded back to Maryland, just as Arlington and Alexandria were ceded back to Virginia in the 19th century.

All legitimate constitutional options, all difficult to accomplish, but the only possibilities for District citizens to have representation in Congress.

The third option is clearly the most appropriate. D.C. as a state would be worse than a bad idea.