- The Washington Times - Friday, February 13, 2009



As the Obama administration commences its reign of one-party government, attention has understandably focused on the president’s economic stimulus program and his new approach to the foreign terrorist threat.

But preoccupation with these topics should not divert attention from what may be the most ominous, and radical, collaboration between the new president and the Democratic-controlled Congress: the enactment of blatantly unconstitutional legislation to bypass the constitutional amendment process and give the House of Representatives in a crass triumph of raw political power over the rule of law.

With relentless clarity, in provision after provision, the Constitution specifies that representation in both Houses of Congress is limited to the states - and the District of Columbia is not a state. The very first sentence of the Constitution says, “All legislative powers herein granted shall be vested in a Congress of the United States” - not a Congress of the United Entities, Districts, Territories or Enclaves. The second sentence then specifies that the House of Representatives is to be composed of members “chosen by the people of the several States.” All told, no fewer than 11 constitutional provisions make it clear that congressional representation is linked inextricably to statehood.

If there were any plausible doubt that congressional representation was intentionally limited to the states when the Constitution was drafted in 1787, it would have been conclusively removed when the 39th Congress reiterated that “Representatives shall be apportioned among the several States” when it revisited the question of congressional apportionment in drafting the 14th Amendment in 1866. (In 1866 as well as in 1787, there was no ambiguity and no mistake in the express linkage of congressional representation to statehood.)

This does not mean, however, that the District of Columbia cannot obtain congressional representation. It only means it must do so by means of a constitutional amendment, as plainly provided in Article V of the Constitution.

For more than 200 years, this understanding of the Constitution (intelligible to any literate 12-year-old who reads its text) was accepted even by ardent advocates of D.C. representation. On repeated occasions in the 1960s and 1970s, for example, the Democratic-controlled House Judiciary Committee ruefully acknowledged that a constitutional amendment was “essential” if D.C. were to receive such representation. They expressly recognized that the Constitution did not allow Congress to grant D.C. representation by simple legislation, and proceeded to propose the constitutional amendment that was necessary. The amendment failed to achieve ratification, but the rule of law was honored.

The constitutional text limiting congressional representation to the states has not changed during the past several years. Nor have judicial interpretations of that text, which have consistently acknowledged that limitation. What has changed, however, is the willingness of D.C. representation advocates to run roughshod over the Constitution because they now have the raw political power to pass a statute awarding the District a seat in the House by main force.

As a fig leaf to cover up their brute power play, they invoke the risible theory that a constitutional provision authorizing Congress to exercise legislative jurisdiction over federal enclaves - including the District, but also including military reservations, park lands and similar enclaves - enables Congress to override express constitutional requirements, including the limitation of congressional representation to states, as long as they are doing so on behalf of the District. Oddly, this interpretation of the Enclave Clause somehow escaped the grasp of the Framers, the courts, and Congress for more than two centuries.

Apart from the fact that the Supreme Court has flatly held that Congress’ power under the Enclave Clause is indeed limited by other constitutional requirements, the absurdity of the theory is demonstrated by considering its logical consequences. It would enable Congress to undercut the entire structure of state-based congressional representation - in the Senate as well as in the House - by extending representation to an unlimited variety of enclaves and territories by simply passing statutes reflecting evanescent political majorities. A more radical subversion of constitutional government would be difficult to imagine.

During the 110th Congress, it was only Delegate Eleanor Holmes Norton has asserted that Mr. Obama has committed to signing such legislation.

Significantly, the Solicitor General Walter Dellinger recently observed that the persons named by the president-elect to advise him on such constitutional issues at the Justice Department “bring a stature to the job that will allow them to say no to the president when no is the correct answer.” “No” obviously remains the correct answer to the question of whether the president should sign D.C. House seat legislation that repudiates the Constitution’s text, more than 200 years of unwavering historical practice and repeated pronouncements of the federal judiciary. But only the delusional would expect that the new president’s men and women at Justice would stand with the Constitution against the menacing force of raw political power.

Justice Department’s Office of Legal Counsel.

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