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Obama Administration Ignores Constitution and Politicizes Justice on D.C. "Voting Rights" Bill
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A bill that would give residents of Washington, D.C. a Congressman is unconstitutional, lawyers in the Justice Department’s Office of Legal Counsel concluded. But politics overrode law as Attorney General Eric Holder, who has a contempt for constitutional safeguards, ignored their conclusion and decided instead to declare it constitutional. The bill was passed in slightly different versions by both Houses of Congress on largely party-line votes, although differences between the two versions have to be ironed out before it can be signed by Obama, who supports the bill (the Senate added a provision protecting gun-rights in the District to the bill, enraging liberal House leaders).
The OLC lawyers who admitted that the bill is unconstitutional were liberal academics appointed by Obama himself. But not even they could argue with a straight face that it was constitutional. For decades, beginning with Robert F. Kennedy, the Justice Department, like the Congressional Research Service, has admitted that giving the District a Congressman is unconstitutional.
The bill is patently unconstitutional, since it violates the constitutional requirement of Article 1, Section 2 of the Constitution that the “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States.” Washington, D.C. is not a state. The Founding Fathers specifically intended to limit Washington, D.C.’s influence over Congress. The Fourteenth Amendment likewise states that “Representatives shall be apportioned among the several States . . .”
Supporters of the bill argue that the bill is constitutional under the District Clause in Article 1 of the Constitution, which says that Congress has the power of “exclusive Legislation” over the District. They say its language trumps other constitutional provisions. But that argument is frivolous. Allowing grants of power, like the District Clause, to override other provisions of the Constitution, such as the Fourteenth Amendment, is dangerous, since those other provisions also contain crucial civil liberties. Under this logic, Congress could legislatively authorize warrantless searches and seizures in the District, effectively overriding the Fourth Amendment. And it could summarily punish innocent people through “bills of attainder,” which are prohibited in the very same article of the Constitution — Article 1 — as the requirement that only “states” receive Congressman. If that requirement can be overridden by Congress under the District Clause, as bill supporters claim, then why can’t other requirements in the same article, like the ban on bills of attainders?
As George Will has noted, if “Congress’ legislative power trumps the Constitution, . . . Congress could establish religion, abridge freedom of speech and of the press and abolish the right of peaceful assembly in the District.” Obviously, that is not the case, since, as National Review points out, “The grant of exclusive jurisdiction does not permit Congress to do anything that the rest of the Constitution forbids, and the rest of the Constitution clearly forbids it to treat D.C. as a state.”
The courts have always assumed that grants of power to Congress are limited by other constitutional provisions. For example, although the Constitution grants Congress the power to regulate interstate commerce, the courts have struck down as free-speech violations Congressional laws regulating the publishing industry, interstate advertising, the internet, and other forms of interstate commerce, without anyone suggesting that Congress’s power overrides the First Amendment. Similarly, a federal appeals court struck down the Elizabeth Morgan Act as a bill of attainder in 2003, even though it was Congressional legislation regarding the D.C. courts enacted under the District Clause.
Attorney General Holder’s political meddling is a breach of his promise not to politicize DOJ’s legal positions, and to take legal positions based not on “a political process,” but rather “based solely on our interpretation of the law.” (It is also a breach of his oath of office).
But this shouldn’t be a big surprise, coming from an Administration that has routinely broken campaign promises, such as Obama’s promise of a “net spending cut,” which he broke in myriad ways, such as a budget that will increase projected deficits by $4.8 trillion, and bailouts amounting to $8 trillion (not counting another trillion dollars for the toxic-asset buy-up program and $800 billion for the economy-shrinking “stimulus” package).
Even putting aside constitutional problems, it's not clear that D.C. deserves a Congressman. Washington, D.C. has a smaller population than the typical House district. Its half-million citizens are far less numerous than Montana, whose 900,000 residents enjoy only one House seat. (D.C. also has fewer voters than all 50 states, and fewer residents than 49 of the 50 states).
Moreover, Washington, D.C. is already overrepresented in the Electoral College, where it has 0.6 percent of the votes, despite having less than 0.2 percent of the nation’s population.
Underpopulated states are overrepresented in the Electoral College, too. And states like Vermont and Wyoming get the same number of Senators (two) as big states like California and Texas, despite having only a tiny fraction of their population. But the Constitution expressly forbids any attempt to change that inequity through constitutional amendment, barring any state from being deprived of its “equal” representation in the Senate, even if its population is anything but equal to other states. What’s mandated by the Constitution isn’t always fair.
Voters in the District already enjoy far more self-determination than residents of other urban areas — and that has economically harmed, rather than helped the District by leading to excessive regulation and lawsuits.
Cities in Virginia, which are subject to state legislative checks and balances, are barred by Virginia’s Dillon Rule from regulating without state legislative approval. Thus, they cannot require (as the District bizarrely has) that businesses hire felons, or set aside basic standards that are alleged to have a ”disparate impact” on some group. (That an employee’s conduct or lack of skills imposes increased costs on an employer is expressly ruled out as a defense to a “disparate impact” lawsuit under the D.C. Human Rights Act.)
By contrast, Washington, D.C. ordinances regulating business are not subject to state government oversight, and are seldom second-guessed by Congress.
Partly as a result of that, there has been a steady migration of businesses and trade associations from the heavily-regulated District of Columbia to the Virginia municipalities of Alexandria and Arlington, which have less regulation, and fewer lawsuits.
