Free to Choose (Except in D.C., Suckers!)


The House of Representatives is debating a bill to give Washington, D.C a vote; it would empower fun-loving Delegate Eleanor Holmes Norton and cancel out her Democratic vote with an extra vote from Utah. DC's lonely Republican Carol Schwartz argues for the proposal:

Former solicitor general Kenneth Starr and Patricia M. Wald, a former chief judge of the U.S. Court of Appeals for the D.C. Circuit, jointly wrote, "There is nothing in our Constitution's history or its fundamental principles suggesting that the Framers intended to deny the precious right to vote to those who live in the capital of the great democracy they founded." Viet Dihn, a Georgetown University law professor and principal author of the USA Patriot Act, argued in a paper submitted to the House Committee on Oversight and Government Reform that it is constitutional to give the District a vote.

Regardless of the outcome of this debate, why would the president—who has committed so much to fighting for democracy around the world—and Republican members of Congress not stand on the side of democracy for the 572,000 residents of the District of Columbia? Who is going to challenge in court the rectification of this centuries-long injustice? And if someone is cruel enough to try, let the Supreme Court decide otherwise.

What Schwartz is referring to is the White House's promise, remade yesterday, to veto any attempt to give D.C. a vote. (PDF here.)

Recent claims that H.R. 1433 should be viewed as an exercise of Congress's "exclusive" legislative authority over the District of Columbia as the seat of the Federal government are not persuasive. Congress's exercise of legislative authority over the District of Columbia is qualified by other provisions of the Constitution, including the Article I requirement that representation in the House of Representatives is limited to the "several States." Congress cannot vary that constitutional requirement under the guise of the "exclusive legislation" clause, a clause that provides the same legislative authority over Federal enclaves like military bases as it does over the District.

For all the foregoing reasons, enacting H.R. 1433's extension of congressional representation to the District would be unconstitutional. It would also call into question (by subjecting to constitutional challenge in the courts) the validity of all legislation passed by the reconstituted House of Representatives. 

This would be more convincing if the White House's legal eagles didn't view the Constitution as a kind of Mirror of Erised, surging forth whatever rights that sound good and preventing whatever sounds bad. There was a far stronger Constitutional argument for vetoing McCain-Feingold; hell, there's about as strong an argument for abolishing the FICA tax. As long as we're playing fast and loose with this stuff, it seems churlish to promise the second-ever Bush veto to deny some rights to people who didn't vote for Bush.