Castanon v. United States of America

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

ANGELICA CASTAÑON, et al.,

Plaintiffs,

v. Civil Action No. 18-2545

Three-Judge Court

UNITED STATES, et al., (RDM, RLW, TNM)

Defendants.

Before: WILKINS, Circuit Judge, and MOSS and MCFADDEN, District Judges.

Opinion for the Court filed by Circuit Judge WILKINS.

MEMORANDUM OPINION

WILKINS, Circuit Judge: This suit is brought by registered voters residing in the District of

Columbia (the “District”) in an effort to secure for themselves, and others similarly situated, the

ability to elect voting representatives to the United States Congress. Plaintiffs challenge their lack

of the congressional franchise as unconstitutional because violative of their rights to equal

protection, due process, and association and representation. This case is a close cousin of a suit

litigated a generation ago, Adams v. Clinton, 90 F. Supp. 2d 35 (D.D.C.), aff’d sub nom. Alexander

v. Mineta, 531 U.S. 940 (2000) (mem.), and aff’d, 531 U.S. 941 (2000) (mem.), whose reasoning

necessarily informs ours and whose outcome, in the end, we echo.

Beyond the gravity of its substance, perhaps this suit’s most notable attribute is its

bifurcation – the gap between Plaintiffs’ central theory of the case and those tertiary aspects of

Plaintiffs’ claims whose merits we are empowered to address. We recognize that District

residents’ lack of the congressional franchise is viewed by many, even most, as deeply unjust, and

we have given each aspect of Plaintiffs’ claims most serious consideration, but our ruling today is

compelled by precedent and by the Constitution itself.

I. Procedural History

Plaintiffs – who are U.S. citizens, registered voters, and residents of the various Wards of

the District of Columbia, Am. Compl. ¶ 21, ECF No. 9 – filed their Complaint on November 5,

2018, and amended it on November 26, 2018, see generally id. The Amended Complaint “seeks

to secure the right to full voting representation in the United States Congress for American citizens

living in the District of Columbia,” id. ¶ 1, and alleges three counts: denial of equal protection,

denial of due process, and infringement of the right to association and representation, id. ¶¶ 135-

42. Originally named as defendants were: the Speaker, the Clerk, and the Sergeant at Arms of the

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U.S. House of Representatives (collectively, “the House Defendants”); the President Pro Tempore,

the Secretary, and the Sergeant at Arms and Doorkeeper of the U.S. Senate, as well as the Vice

President in his capacity as President of the Senate (“the Senate Defendants”); and the President

and the Secretary of Commerce of the United States (“the Executive Defendants”). Id. ¶¶ 59-67.

But on March 27, 2019, Plaintiffs voluntarily dismissed the House Defendants, and the House later

filed an amicus brief in support of Plaintiffs’ cause.

On the day Plaintiffs filed the Amended Complaint, they brought a motion for the

convening of a three-judge panel, pursuant to 28 U.S.C. § 2284(a), which provides that “[a] district

court of three judges shall be convened . . . when an action is filed challenging the constitutionality

of the apportionment of congressional districts[.]” District Judge Randolph D. Moss, to whom the

case was originally assigned, found it appropriate to convene a three-judge District Court; he

therefore requested that then-Chief Judge Merrick B. Garland of the U.S. Court of Appeals for the

District of Columbia Circuit designate two other judges to serve on this panel. See 28 U.S.C.

§ 2284(b)(1) (authorizing the chief judge of the circuit to designate a three-judge court).

Before us are a motion to dismiss (“MTD”) pursuant to Federal Rules of Civil Procedure

12(b)(1) and 12(b)(6), filed jointly by the Executive and Senate Defendants, ECF No. 21, and

Plaintiffs’ motion for summary judgment (“MSJ”) pursuant to Federal Rule of Civil Procedure 56,

ECF No. 23. Amici have filed a total of eight briefs.1

Having benefitted from oral argument, the parties’ filings, and the submissions of amici,

we now consider, in turn, the applicable standards of review, relevant legal history, this panel’s

subject-matter jurisdiction, the justiciability of the claims over which we assert jurisdiction, and

the merits of the justiciable claims.

II. Standards of Review

“[T]he scope of Rule 12(b)(1) is flexible,” comprehending standing as well as most

justiciability issues. See 5B FED. PRAC. & PROC. CIV. § 1350 (Wright & Miller 3d ed.).

Jurisdictional issues are to be considered and resolved at the threshold, and the party invoking

federal jurisdiction – here, Plaintiffs – bears the burden of establishing that the plaintiffs have

standing. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95, 104 (1998). The Court may

look beyond the complaint in resolving questions of jurisdiction. See Am. Freedom Law Ctr. v.

Obama, 821 F.3d 44, 49 (D.C. Cir. 2016). On a Rule 12(b)(1) motion, “it is well-settled that the

complaint will be construed broadly and liberally, in conformity with the general principle set forth

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Amici are: (1) Concerned District of Columbia Legal Organizations and Concerned District of Columbia Legal

Professionals, in support of Plaintiffs, ECF No. 43; (2) the District of Columbia, in support of Plaintiffs, ECF No. 42;

(3) Historians Kenneth R. Bowling, William C. diGiacomantonio, and George Derek Musgrove, in support of

Plaintiffs, ECF No. 39 (“Historians’ Br.”); (4) David C. Krucoff, Executive Director and Founder of the non-profit

organization “Douglass County, Maryland,” in support of Plaintiffs, ECF No. 45-1; (5) constitutional law scholars

Alan B. Morrison, Peter B. Edelman, Lawrence Lessig, Peter M. Shane, Peter J. Smith, and Kathleen M. Sullivan, in

support of Plaintiffs, ECF No. 40 (“Scholars’ Br.”); (6) U.S. House of Representatives, in support of Plaintiffs, ECF

No. 38 (“House’s Br.”); (7) John H. Page, in support of Plaintiffs in part and of Defendants in part, ECF No. 46; and

(8) Washington Lawyers’ Committee for Civil Rights and Urban Affairs, Neighbors United for DC Statehood, the

League of Women Voters of the United States, the League of Women Voters of the District of Columbia, DC Vote,

and American Civil Liberties Union of the District of Columbia, in support of Plaintiffs, ECF No. 41 (“Orgs.’ Br.”).

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in Rule 8(e)[.]” 5B FED. PRAC. & PROC. CIV. § 1350 (Wright & Miller 3d ed.); see also Scheuer

v. Rhodes, 416 U.S. 232, 236 (1974) (“[I]t is well established that, in passing on a motion to

dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state

a cause of action, the allegations of the complaint should be construed favorably to the pleader.”),

abrogated on other grounds as recognized in Davis v. Scherer, 468 U.S. 183, 191 (1984).

When considering a motion to dismiss for failure to state a claim under Rule 12(b)(6), the

Court assesses whether the complaint “contain[s] sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Here, too, the Amended

Complaint is construed in Plaintiffs’ favor, Scheuer, 416 U.S. at 236, and its material allegations

are accepted as true, Iqbal, 556 U.S. at 678. In considering a Rule 12(b)(6) motion, we “consider

the complaint in its entirety,” and may also consider “documents incorporated into the complaint

by reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues

& Rights, 551 U.S. 308, 322 (2007) (citing 5B FED. PRAC. & PROC. CIV. § 1357 (Wright & Miller

3d ed. 2004 and Supp. 2007)).

Summary judgment, meanwhile, is appropriate where the movant can demonstrate “that

there is no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” FED. R. CIV. P. 56(a). A dispute about a material fact “is ‘genuine’ . . . if the

evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). At the summary-judgment stage, “[t]he evidence

of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id.

at 255. There are no disputes of material fact here.

III. Background

The Seventeenth Amendment to the U.S. Constitution provides that “[t]he Senate of the

United States shall be composed of two Senators from each state, elected by the people thereof[.]”

U.S. CONST. amend. XVII. Article I of the Constitution, meanwhile, provides that “[t]he House

of Representatives shall be composed of Members chosen every second Year by the People of the

several States[.]” Id. art. I, § 2, cl. 1. The Fourteenth Amendment dictates that “Representatives

shall be apportioned among the several States according to their respective numbers,” id. amend.

XIV, and Article I provides that an “actual Enumeration” shall be conducted every ten years, id.

art. I, § 2, cl. 3. The provisions of the Constitution relating to the apportionment of House

representation are effectuated by statute. The Secretary of Commerce is charged, by 13 U.S.C.

§ 141, with the conduct of the decennial census; that statute also mandates that the Secretary

tabulate the total population “by States” and report the same to the President within nine months

of the census date, id. § 141(b). The President must then “transmit to the Congress a statement

showing the whole number of persons in each State . . . and the number of Representatives to

which each State would be entitled[.]” 2 U.S.C. § 2a(a). “Each State shall be entitled . . . to the

number of Representatives shown” in the President’s statement, and within fifteen days of

receiving that statement, the Clerk of the House must “send to the executive of each State a

certificate of the number of Representatives to which such State is entitled[.]” Id. § 2a(b). It is

undisputed, and the Court takes judicial notice of the fact, see FED. R. EVID. 201, that District

residents are unrepresented in Congress by anyone but the Delegate, who by statute has a seat in

the House and may debate, but may not vote, 2 U.S.C. § 25a(a).

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IV. Adams

Neither we nor the parties write on a blank slate. Twenty years ago, another three-judge

panel of this Court had occasion to pass on claims very similar to those now before us, issuing a

well-reasoned opinion we are inclined to follow to the extent we are not bound to do so. The

holdings of the Adams court, together with the Supreme Court’s summary affirmances of the

Adams panel’s judgment, serve as the background against which we rule.

Adams represented the consolidation of two cases: Adams v. Clinton and Alexander v.

Daley. 90 F. Supp. 2d at 37-38. In both cases, the plaintiffs alleged that the failure to apportion

House representatives to the District, and to permit District residents to vote in House and Senate

elections, was unconstitutional because violative of District residents’ rights to equal protection

and to a republican form of government. Id. at 37. Additionally, some plaintiffs brought claims

that the defendants, among them the Secretary of Commerce and the President, violated Article I,

the Seventeenth Amendment, and their due-process rights, and abridged their privileges and

immunities as U.S. citizens, via their exclusion from the congressional franchise. Id. at 38. The

plaintiffs in the consolidated suit “d[id] not dispute that to succeed they must be able to characterize

themselves as residents of a ‘state.’” Id. at 46 (citations omitted). Among the relief sought from

the Adams panel was an injunction against the Secretary of Commerce, compelling him to include

the District in his population report to the President. See id. at 43; see also Alexander Compl. 59,

ECF No. 21-2.

Considering those defendants’ motions to dismiss and plaintiffs’ motions for summary

judgment, the Adams panel – in a thorough opinion accompanied by a similarly thoughtful partial

dissent – remanded for consideration by a single-judge District Court those claims that did not

concern apportionment, 90 F. Supp. 2d at 39-40, and then ruled in favor of the defendants and

dismissed the remaining claims, id. at 72. The Adams panel concluded that, while the plaintiffs

had standing to pursue their apportionment claims, id. at 45, dismissal of those claims was

appropriate because Article I restricted the House franchise to “citizens of states,” and the District

could not “be considered a state for purposes of congressional representation under Article I.” Id.

at 56.

The plaintiffs proceeded to the Supreme Court by right of direct appeal, which 28 U.S.C.

§ 1253 makes available to “any party . . . in any civil action, suit or proceeding required by an Act

of Congress to be heard and determined by a district court of three judges” where such appeal is

from “an order granting or denying . . . an interlocutory or permanent injunction.” The Supreme

Court, in twin issuances, summarily affirmed the Adams panel’s judgment. Alexander v. Mineta,

531 U.S. 940 (2000) (mem.); Adams v. Clinton, 531 U.S. 941 (2000) (mem.).

The import of the Supreme Court’s treatment of Adams – and thus the extent to which this

Court is bound – is not immediately clear. Lower courts have been admonished that, while a

summary affirmance is a disposition on the merits and thus may not be disregarded, see Hicks v.

Miranda, 422 U.S. 332, 344 (1975) (“[T]he lower courts are bound by summary decisions by this

Court until such time as the Court informs them that they are not.” (alterations, citation, and

internal quotation marks omitted)), a summary affirmance has “considerably less precedential

value than an opinion on the merits,” Ill. State Bd. of Elections v. Socialist Workers Party, 440

U.S. 173, 180-81 (1979). Moreover, “a summary affirmance is an affirmance of the judgment

only,” Comptroller of the Treasury v. Wynne, 135 S. Ct. 1787, 1801 (2015) (quoting Mandel v.

Bradley, 432 U.S. 173, 176 (1977)), rather than an affirmance of the reasoning of the lower court,

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id. That said, the Supreme Court has several times treated a lower court’s reasoning as relevant to

a summary affirmance’s import. See, e.g., Harris v. Ariz. Indep. Redistricting Comm’n, 136 S. Ct.

1301, 1310 (2016) (citing summary affirmance in Cox v. Larios, 542 U.S. 947 (2004), and

approvingly discussing the Cox District Court’s reasoning); Morse v. Republican Party of Va., 517

U.S. 186, 202 (1996) (citing “the logic of” a prior summary affirmance as something that should

have been instructive to the Morse lower court, and quoting the prior District Court’s reasoning).

Two relevant questions emerge from this amalgam: those of substance and weight. As to

substance (and despite some jurisprudential inconsistency on this score), the Court is guided by

the Supreme Court’s statements in Illinois State Board of Elections: A summary affirmance’s

“precedential effect . . . can extend no farther than ‘the precise issues presented and necessarily

decided by those actions.’” 440 U.S. at 182 (quoting Mandel, 432 U.S. at 176). “A summary

disposition affirms only the judgment of the court below, and no more may be read into our action

than was essential to sustain that judgment.” Id. (citations omitted). Divining what was necessarily

decided by a summary affirmance necessitates an examination of the jurisdictional statements

submitted to the Supreme Court pursuant to the prior direct appeals. See William J. Schneier, The

Do’s and Don’ts of Determining the Precedential Value of Supreme Court Summary Dispositions,

51 BROOK. L. REV. 945, 960-61 & n.101 (1985) (citing Ill. State Bd. of Elections, 440 U.S. at 182;

see also Anderson v. Celebrezze, 460 U.S. 780, 784-85 n.5 (1983); Washington v. Confederate

Band & Tribes of the Yakima Indian Nation, 439 U.S. 463, 477 n.20 (1979); Mandel, 432 U.S. at

176; Tully v. Griffin, Inc., 429 U.S. 68, 74 (1976)). A lower court must also discern whether there

are any legally significant differences between the case before it and the cases that were the subject

of summary affirmances, see Schneier, Do’s and Don’ts, supra, 960 & n.100 (citing Ill. State Bd.

of Elections, 440 U.S. at 181-82; Mandel, 432 U.S. at 176-77; Celebrezze, 460 U.S. at 784-85 n.5;

Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 499 (1981) (plurality)), and whether there

have been superseding doctrinal developments since the summary affirmance, id. at 961 & n.104

(citing Hicks, 422 U.S. at 344-45; Mandel, 432 U.S. at 180 (Brennan, J., concurring)).

On weight, in addition to understanding that a summary affirmance’s precedential value is

“considerably less” than that of a full opinion, Ill. State Bd. of Elections, 440 U.S. at 180-81, we

are informed by the Supreme Court’s endorsement of a “do-it-yourself” approach. In Anderson v.

Celebrezze, the Supreme Court noted with approval that the Sixth Circuit had “correctly

recogniz[ed] the limited precedential effect to be accorded summary dispositions,” and had

undertaken an “independent[]” analysis. 460 U.S. at 784-85; see also id. at 784 n.5 (“The Court

of Appeals quite properly concluded that our summary affirmances . . . were a ‘rather slender reed’

on which to rest its decision.” (citation omitted)).

Against this backdrop, we proceed to the case now before us, beginning, as we must, with

an analysis of whether we have jurisdiction to review each of the claims in this case. Steel Co.,

523 U.S. at 94.

V. Jurisdiction over Plaintiffs’ House Claims

In the first of several threshold issues, Defendants contend that this case ought not to have

been referred to a three-judge panel “because Plaintiffs’ [Amended C]omplaint challenges the

District’s lack of representation in the House, not any particular apportionment of congressional

districts.” Mem. in Supp. of MTD at 9 n.9 (citing City of Philadelphia v. Klutznick, 503 F. Supp.

657, 658 (E.D. Pa. 1980)). This argument is foreclosed, however, by the Supreme Court’s

summary affirmances of the Adams panel’s decision on the merits of those plaintiffs’ House-

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related claims. Like these Plaintiffs, the plaintiffs in Adams challenged the District’s lack of

representation in the House, there arguing that the District should be treated as a State, that District

residents should be able to vote as Maryland residents, and that the District’s lack of House

representation violated the Equal Protection, Privileges or Immunities, Due Process, and

Republican Guarantee Clauses of the Constitution. 90 F. Supp. 2d at 46, 56, 65. The Adams

panel’s jurisdiction to hear those plaintiffs’ claims was essential to the Supreme Court’s direct

review under 28 U.S.C. § 1253; had such jurisdiction been lacking, the Supreme Court would have

found itself to lack jurisdiction to consider the matter on direct appeal. See, e.g., Moody v. Flowers,

387 U.S. 97, 104 (1967) (“[A] three-judge court was improperly convened. Appeals should,

therefore, have been taken to the respective Courts of Appeals, not to this Court.”); Adams v.

Clinton, 531 U.S. at 941 (mem.) (“Justice Stevens would dismiss the appeal.”). We therefore hold

that those of Plaintiffs’ claims that challenge the District’s lack of representation in the House are

properly before us as a three-judge District Court.

VI. Jurisdiction over Plaintiffs’ Senate Claims

An important threshold issue – though one neither the parties nor amici address in their

filings – is the question of this panel’s jurisdiction over the claims aimed at senatorial

representation. The statute giving rise to this three-judge District Court provides for the convening

of such a court “when an action is filed challenging the constitutionality of the apportionment of

congressional districts[.]” 28 U.S.C. § 2284(a). But Plaintiffs’ suit extends beyond their lack of

representation in the House – the chamber that “the apportionment of congressional districts”

concerns. Each of Plaintiffs’ three causes of action decries their lack of voting representation not

just in the House, but in Congress writ large, see Am. Compl. ¶¶ 135, 137, 141; they have named

as defendants the President Pro Tempore of the Senate, the Vice President in his capacity as

president of the Senate, and both the Clerk and the Sergeant at Arms of the Senate, see id. ¶¶ 62-

65; and among the relief sought are injunctions compelling each of the Senate Defendants to take

action to the end of securing for District residents representation in the Senate, see id. Prayer for

Relief ¶ 5. We are thus confronted with the question of the propriety of our considering Plaintiffs’

senatorial claims.2 Cf. Perez v. Ledesma, 401 U.S. 82, 87 (1971) (“Even where a three-judge court

is properly convened to consider one controversy between two parties, the parties are not

necessarily entitled to a three-judge court and a direct appeal on other controversies that may exist

between them.” (citation omitted)).

The Supreme Court has made clear that a properly convened three-judge district court has

some ability to exercise a brand of supplemental jurisdiction over claims beyond those that form

the core of its statutory jurisdictional grant. Claims that have been found to be proper subjects for

the exercise of such supplemental jurisdiction have generally borne an intimate relation to those

that impelled the formation of a three-judge district court in the first instance. For example, while

interpreting now-repealed 28 U.S.C. § 2281 (which provided that any injunction “restraining the

enforcement, operation or execution of a State statute” due to unconstitutionality could only be

granted by a three-judge district court), the Supreme Court held in Allee v. Medrano that a three-

judge district court may properly assert jurisdiction over “every question pertaining to the prayer

2

In considering this question, we are mindful of, but not bound by, the Adams panel’s discussion of the same question.

The Adams panel’s decision not to accept jurisdiction of the Senate claims presented there was in no way “essential

to sustain that judgment,” as would be necessary to give that holding in Adams binding force through the operation of

the Supreme Court’s summary affirmances. See Ill. State Bd. of Elections, 440 U.S. at 182.

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for the injunction” that was the original basis for its convening. See 416 U.S. 802, 812 n.8 (1974)

(citing Pub. Serv. Comm’n v. Brashear Freight Lines, 312 U.S. 621, 625 n.5 (1941)); see also Lake

Carriers’ Ass’n v. MacMullan, 406 U.S. 498, 504 n.5 (1972) (indicating that “a three-judge court

is the proper forum for all claims against” (there) a challenged statute). As the Adams panel

observed, a three-judge court may also decide ancillary claims where their resolution is “necessary

. . . to provide a ‘final and authoritative decision of the controversy’ among the parties” to the

claims that gave rise to the three-judge court. See 90 F. Supp. 2d at 39 (citing Brashear Freight

Lines, 312 U.S. at 625 n.5, and Allee, 416 U.S. at 812 n.8). And it is permissible for a three-judge

district court to consider ancillary claims where resolution of those claims would dispose of the

entire case, including those claims over which the panel has original jurisdiction. See United States

v. Ga. Pub. Serv. Comm’n, 371 U.S. 285, 287-88 (1963) (“Once convened the case can be disposed

of below or here on any ground, whether or not it would have justified the calling of a three-judge

court.” (citations omitted)).

Only on the margins might any of these factors be said to be present here. It certainly

cannot be declared that disposition of Plaintiffs’ Senate claims is necessary to settle the

controversy between Plaintiffs and the Executive Defendants, against whom the apportionment

claims are asserted, see Brashear Freight Lines, 312 U.S. at 625 n.5, or that resolution of the

apportionment claims would obviate the need to decide the Senate claims, see Ga. Pub. Serv.

Comm’n, 371 U.S. at 287-88. And while the Senate claims do of course “pertain” to Plaintiffs’

quest for representation in Congress as a whole, it is Plaintiffs’ challenge to apportionment – not

any challenge to their exclusion from Congress writ large – that is the basis on which this Court

convened. See Allee, 416 U.S. at 812 n.8.

Moreover, even if there is some framing of Plaintiffs’ Senate claims that would lend

propriety to this panel’s consideration of them, the Supreme Court has made clear that even the

proper exercise of jurisdiction over such non-core claims is discretionary. See, e.g., Hagans v.

Lavine, 415 U.S. 528, 544 (1974) (noting that, when a three-judge district court was presented

with a claim that fell outside its core statutory purview, “the most appropriate course may well

have been to remand to the single district judge for findings and the determination of [that] claim”

(quoting Rosado v. Wyman, 397 U.S. 397, 403 (1970)). We are cognizant of the fact that our

resolution of the Senate claims would “deprive the Court of Appeals of the opportunity to review

our work.” Adams, 90 F. Supp. 2d at 39 (citing 28 U.S.C. § 1253). Moreover, a misstep in this

sphere could result in the Supreme Court finding that it may not consider on direct appeal our

judgment on the Senate claims. See, e.g., Perez, 401 U.S. at 85-88 (“Under 28 U.S.C. § 1253, we

have jurisdiction to consider on direct appeal only those civil actions ‘required . . . to be heard and

determined’ by a three-judge court. Since the constitutionality of this parish ordinance was not

‘required . . . to be heard and determined’ by a three-judge panel, there is no jurisdiction in this

Court to review that question.” (alterations in original)). These considerations lead us to decline

to consider those of Plaintiffs’ claims that concern Senate representation. We remand those claims

for Judge Moss’s sole consideration.

VII. Justiciability of Plaintiffs’ Principal House Claims

We now turn to what we perceive to be the heart of the matter: Plaintiffs’ supposition that

Congress is under a constitutional obligation to act affirmatively in a way it has not yet done, and

that this Court may (and should) use its power to the end of compelling such action. See, e.g., Am.

Compl. ¶¶ 11-13, 114, 141; id. Prayer for Relief ¶¶ 1, 5; Mem. in Supp. of MSJ at 40-41. To the

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extent Plaintiffs’ claims are premised on this notion – that is, insofar as they seek to litigate or

redress Congress’s allegedly wrongful inaction – we find such claims not to be justiciable, and

accordingly dismiss them.

To set the stage, Plaintiffs contend that Congress is empowered by the District Clause of

Article I of the U.S. Constitution to provide by legislation for the congressional enfranchisement

of District residents. E.g., Am. Compl. ¶¶ 4, 11, 13, 92-104; see U.S. CONST. art. 1, § 8, cl. 17

(“The Congress shall have Power . . . [t]o exercise exclusive Legislation in all Cases whatsoever,

over such District (not exceeding ten Miles square) as may, by Cession of particular States, and

the Acceptance of Congress, become the Seat of the Government of the United States[.]”).

Plaintiffs further assert that Congress’s failure to use its District Clause power to this end, Am.

Compl. ¶¶ 112-14 (noting this failure), is violative of their rights of equal protection, id. ¶ 125, due

process, see id. ¶ 5, and association and representation, id. ¶¶ 118-19. They seek, as relevant here:

(1) a declaration to the effect that they (and all others similarly situated) have a constitutional right

to the congressional franchise, that the Defendants have violated this right, and that “the continuing

deprivation of this right violates one of the most precious attributes of United States citizenship,”

id. Prayer for Relief ¶ 1; and (2) after the Court defers “further relief for a reasonable period of

time to provide Congress an opportunity, on the basis of the Court’s declaratory judgment, to

fashion a constitutional remedy that will vindicate the constitutional rights” of District residents to

the congressional franchise, id. ¶ 3, an “order [of] injunctive relief,” which “could include . . .

ordering the Defendants to present plans” for how they will enfranchise District residents and then

“ordering Defendants to pursue the steps that will most appropriately assure” that District residents

will secure the congressional franchise, id. ¶ 5.

We are troubled by the import of Plaintiffs’ central premise: that it is both feasible and

proper for this Court to order (or otherwise seek to compel) Congress to enact particular legislation.

The concerns raised by such a premise include Article I’s Speech or Debate Clause, U.S. CONST.

art. I, § 6, cl. 1; see, e.g., Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 502 (1975) (“The

purpose of the Clause is to insure that the legislative function the Constitution allocates to Congress

may be performed independently.”), general separation-of-powers principles, and Article III

standing. We explicate and rely on the last of these, the analysis of which necessarily implicates

them all.

We first pause, however, to note that the justiciability of these claims is not among those

issues on which our hand is guided by Adams and its summary affirmances, in binding or even

persuasive fashion. As Plaintiffs themselves acknowledge, their focus on the District Clause sets

their central claims apart from those asserted in Adams. E.g., Am. Compl. ¶¶ 10 (“[U]nlike the

equal protection challenge in Adams, Plaintiffs’ claims here are . . . . based on Congress’s refusal

to exercise its authority to protect the voting rights of District residents in the face of its

recognition, post-Adams, that it has the power to do so.”), 124 (“[U]nlike the Adams plaintiffs, the

plaintiffs here contend that they are constitutionally entitled to voting representation

notwithstanding that they are not residents of a State and that legislative and legal developments

after Adams entitle them to that representation.”); Mem. in Supp. of MSJ at 8 (“The argument that

Congress has the authority under the District Clause to grant voting rights to District residents was

neither made nor addressed in Adams.”). The Adams panel expressed no opinion on the particular

issues now before us; although the Alexander complaint prayed for items of relief virtually

identical to those here at issue, see Alexander Compl. 57-60, the Adams panel construed the thrust

of those plaintiffs’ House-related claims to be concerned largely with apportionment, and in any

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case did not pass on any theory analogous to the one Plaintiffs now press. See generally 90 F.

Supp. 2d 35. Nor – in case there were any remaining doubt – does either of the jurisdictional

statements submitted to the Supreme Court by the Adams and Alexander plaintiffs, respectively,

squarely present the theory Plaintiffs assert here: that it is unconstitutional for Congress to have

neglected to use its District Clause powers to give District residents the House franchise. See

generally Jurisdictional Statement, Alexander v. Mineta, 531 U.S. 940 (2000) (No. 99-2062);

Jurisdictional Statement, Adams v. Clinton, 531 U.S. 941 (2000) (No. 00-97), 2000 WL 33999989.

Because this argument “was neither made nor addressed in Adams,” Mem. in Supp. of MSJ at 8,

neither that decision nor its twin summary affirmances marks or illuminates our path.

In order to meet “the ‘irreducible constitutional minimum’ of standing,” Spokeo, Inc. v.

Robins, 136 S. Ct. 1540, 1547 (2016) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560

(1992)), a plaintiff “must have (1) suffered an injury in fact, (2) that is fairly traceable to the

challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial

decision,” id. (citing Lujan, 504 U.S. at 560-61). The “standing inquiry [is] especially rigorous

when reaching the merits of the dispute would force [the Court] to decide whether an action taken

by one of the other two branches of the Federal Government was unconstitutional.” Raines v.

Byrd, 521 U.S. 811, 819 (1997).

In performing the standing analysis, the Court “accept[s] as true all material allegations of

the complaint,” Warth v. Seldin, 422 U.S. 490, 501 (1975), construes the complaint in the

plaintiffs’ favor, id., and assumes the plaintiffs’ success on the merits of their claims, City of

Waukesha v. EPA, 320 F.3d 228, 235 (D.C. Cir. 2003) (per curiam). We therefore accept, for the

moment, the validity of Plaintiffs’ premises concerning the import of the District Clause, and

generally assume for present purposes that Plaintiffs will prevail.

Defendants do not contend that Plaintiffs have not suffered an injury in fact, but of course

that does not end our inquiry. See United States v. Hays, 515 U.S. 737, 742 (1995) (“The question

of standing is not subject to waiver[.]”). Plaintiffs’ asserted injury is the denial of the right to

voting representation in Congress. See, e.g., Am. Compl. ¶ 1. Assuming the merits of Plaintiffs’

claims – in particular, that they have a constitutional right to the House franchise – they have

suffered an injury in fact as a result of that denial. “[V]oters who allege facts showing disadvantage

to themselves as individuals have standing to sue.” Baker v. Carr, 369 U.S. 186, 206 (1962)

(finding an injury in fact where plaintiffs asserted that an apportionment impaired their right to

vote for county representatives). We also reject any notion that the asserted injury is a generalized

one. “[W]here a harm is concrete, though widely shared, the Court has found ‘injury in fact.’”

FEC v. Akins, 524 U.S. 11, 24 (1998) (citation omitted); see also Baker, 369 U.S. at 207-08 (“The

injury which appellants assert is that this classification disfavors the voters in the counties in which

they reside, placing them in a position of constitutionally unjustifiable inequality vis-à-vis voters

in irrationally favored counties. A citizen’s right to a vote free of arbitrary impairment by state

action has been judicially recognized as a right secured by the Constitution . . . . If such impairment

does produce a legally cognizable injury, they are among those who have sustained it.”). Plaintiffs

have, we conclude, suffered an injury in fact.

But having cleared the first of the three hurdles, Plaintiffs are confronted with the difficult

obstacles of causation and redressability. Unpacking causation requires consideration of the

actions of the Executive Defendants and those Senate Defendants who might be fairly said to

remain before us even after our remand of Plaintiff’s Senate claims: the President Pro Tempore of

9

the Senate and the Vice President in his capacity as President of the Senate, both of whom could

be required to vote on any legislation granting District residents the House franchise.3 Our

discussion of redressability brings us back to the issue of our own power, and in particular its

limitations.

Again, the causation analysis requires us to consider whether the alleged injury in fact is

fairly traceable to the challenged conduct of the defendants. Spokeo, 136 S. Ct. at 1547. Moreover,

“it does not suffice if the injury complained of is ‘the result of the independent action of some third

party not before the court[.]’” Bennett v. Spear, 520 U.S. 154, 169 (1997) (quoting Lujan, 504

U.S. at 560-61 (brackets and emphasis omitted)). In other words, “[t]he causation element requires

that a proper defendant be sued.” Common Cause v. Biden, 748 F.3d 1280, 1284 (D.C. Cir. 2014)

(citations omitted). It is abundantly clear that insofar as Plaintiffs are pressing the theory that

Congress should have acted in a particular way but has wrongfully not bestirred itself to do so,

neither of the Executive Defendants can be held responsible for Plaintiffs’ lack of the House

franchise. Nor can those Senate Defendants whose duties comprehend voting on legislation be

charged with “causing” Plaintiffs’ injury. The nonexistence of any statutes granting Plaintiffs the

House franchise is not fairly traceable to individual legislators, who themselves have no power to

pass legislation, but rather is caused by the inaction of the chambers of Congress writ large.4 “In

short, [Plaintiffs’] alleged injury was not caused by any of the defendants, but by [] ‘absent third

part[ies]’” – the House and the Senate. See Common Cause, 748 F.3d at 1285 (quoting Fla.

Audobon Soc’y v. Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996)).

We do not wonder at Plaintiffs’ failure to name the correct parties as defendants, of course,

for it is well established that the Speech or Debate Clause would pose “an absolute bar to suit”

where plaintiffs seek to assign liability for “any act that falls ‘within the sphere of legitimate

legislative activity.’” Common Cause, 748 F.3d at 1283 (quoting Eastland, 421 U.S. at 503); see

U.S. CONST. art. I, § 6, cl. 1. But we find Plaintiffs’ attempted workaround to be fatally infirm.

“Article III ‘requires no more than de facto causality,’” Dep’t of Commerce v. New York, 139 S.

Ct. 2551, 2565 (2019) (quoting Block v. Meese, 793 F.2d 1303, 1309 (D.C. Cir. 1986)) – but it

does require that much, and it is not present here. We find, therefore, that Plaintiffs have failed to

establish the “causation” prong of Article III standing with respect to those aspects of their claims

that are premised on the wrongfulness of congressional inaction.

3

Because we disclaim jurisdiction over Plaintiffs’ Senate claims, those Senate Defendants whose duties pertain only

to Senate operations and do not comprehend legislating – the Secretary of the Senate and its Sergeant at Arms – are

no longer before us. See Am. Compl. ¶¶ 63 (noting that the Secretary of the Senate “serves as an administrative and

financial officer”), 64 (stating that the Sergeant at Arms of the Senate “is the chief law enforcement officer of the

Senate”); id. Prayer for Relief ¶¶ 5(d) (seeking an injunction against the Secretary of the Senate as to the transmission

of Senate-election forms), (b) (seeking an injunction against the Sergeant at Arms of the Senate requiring him to seat

a District-elected Senator), (e) (seeking an injunction compelling the Sergeant at Arms of the Senate to otherwise

“give effect to votes cast by the citizens of the District” in a senatorial election). But the President Pro Tempore of

the Senate and the Vice President may be required to play a role in vindicating Plaintiffs’ House claims. Cf. U.S.

CONST. art. I, § 3, cl. 4 (providing that the Vice President may vote in the Senate where necessary to break ties).

Therefore, our remand of Plaintiffs’ Senate claims to a single District Court judge does not remove the President Pro

Tempore of the Senate or the Vice President from the picture as we consider Plaintiffs’ remaining claims.

4

Even were we to take a different view of causation as to the Senate Defendants, the end result would not change, as

the Speech or Debate Clause would preclude Plaintiffs from pursuing individual legislators for their “legitimate

legislative activity.” Eastland, 421 U.S. at 503.

10

We also observe that Plaintiffs cannot carry their burden to establish redressability as to

these claims. Redressability is present where it is “likely, as opposed to merely speculative, that

the injury will be redressed by a favorable decision.” Lujan, 504 U.S. at 561 (citation and internal

quotation marks omitted). And “standing is not dispensed in gross,” Town of Chester v. Laroe

Estates, Inc., 137 S. Ct. 1645, 1650 (2017) (quoting Davis v. FEC, 554 U.S. 724, 734 (2008));

rather, “a plaintiff must demonstrate standing . . . for each form of relief that is sought,” id. (quoting

Davis, 554 U.S. at 734). Again viewing Plaintiffs’ claims in the light in which they are primarily

cast – as arising from congressional inaction, and thus presumably redressable only by affirmative

congressional action – we find highly dubious the notion that Article III redressability could be

present, given the confines of the federal judiciary’s power. The Speech or Debate Clause – not

to mention separation-of-powers principles more broadly – make quite impossible the injunctive

relief Plaintiffs appear to contemplate. See Am. Compl. Prayer for Relief ¶ 5(h) (praying that the

court “order[] Defendants to pursue the steps that will most appropriately assure the rights of

District of Columbia citizens to participate in the election of voting members of Congress”); see

also Eastland, 421 U.S. at 503 (noting that the Speech or Debate Clause confers immunity for any

act that falls “within the sphere of legitimate legislative activity”); U.S. CONST. art I, § 1, cl. 1

(“All legislative Powers herein granted shall be vested in a Congress of the United States[.]”).

As to the declaratory relief Plaintiffs seek, “a request for declaratory relief may be

considered independently of whether other forms of relief are appropriate.” Powell v. McCormack,

395 U.S. 486, 517-18 (1969) (finding redressability while “express[ing] no opinion about the

appropriateness of coercive relief” against officers of the House). But Plaintiffs face an uphill

climb to establish that ultimate redress would “likely” follow our issuance of a declaratory

judgment in their favor should they prevail. See Lujan, 504 U.S. at 561. “Whether [Plaintiffs’]

claims of [] injury would be redressed by a favorable decision in this case depends on the unfettered

choices made by independent actors not before the courts and whose exercise of broad and

legitimate discretion the courts cannot presume either to control or to predict.” ASARCO Inc. v.

Kadish, 490 U.S. 605, 615 (1989).

At argument and in their filings, Plaintiffs rely heavily on Utah v. Evans, 536 U.S. 452

(2002), and Franklin v. Massachusetts, 505 U.S. 788 (1992), contending that the standing

principles iterated therein support their contention that redressability is present here. In Franklin

– where the plaintiffs were challenging the allocation of overseas federal employees to States for

apportionment purposes, 505 U.S. at 795 – a plurality of the Supreme Court found redressability

in the potential for declaratory relief against the Secretary of Commerce, reasoning that it was

“substantially likely that the President and other executive and congressional officials would abide

by an authoritative interpretation of the census statute and constitutional provision by the District

Court, even though they would not be directly bound by such a determination,” id. at 803. A Court

majority cited this language with approval in Evans, 536 U.S. at 460, 464, there considering a

challenge to the methodology used in the 2000 decennial census, id. at 457-58. In addressing

redressability, the Evans Court found that “a declaration leading, or an injunction requiring, the

Secretary” of Commerce to issue a new census report using a different calculation method “would

amount to a significant increase in the likelihood that the plaintiff would obtain relief that directly

redresses the injury suffered,” id. at 464, as “the relevant calculations and consequent

apportionment-related steps” that would follow a new report’s issuance (and would redress the

asserted injuries) “would be purely mechanical,” id. at 463.

11

We do not find the reasoning espoused in Franklin or Evans to be controlling here. No

one can be heard to say that congressional enactment of legislation – which here is the key link in

the chain leading to ultimate redress – is “purely mechanical,” as would bring this case within

Evans’s scope. And while we could posit that members of Congress would “abide by an

authoritative interpretation of the . . . [C]onstitution[]” by this Court, Franklin, 505 U.S. at 803,

such persons acting in their capacity as legislators are not the sorts of “congressional officials”

contemplated by the Franklin Court as likely to provide ultimate redress via dutiful, predictable

adherence to a court’s declaration of the law. Compounding this latter problem is the fact that

Plaintiffs have dismissed the House Defendants from the suit, meaning that we could not (even in

the absence of all other impediments) issue any relief running against them. See, e.g., Lujan, 504

U.S. at 568-71 (finding an absence of redressability where remediation of plaintiffs’ injuries would

have required action by entities who “were not parties to the case” and were thus beyond the lower

court’s remedial reach).

We cannot say that the issuance of the requested declaratory judgment would make it

“likely, as opposed to merely speculative,” that Congress would undertake the affirmative action

that, under Plaintiffs’ central theory of the case, would be necessary to vindicate their asserted

constitutional right to the House franchise. See Lujan, 504 U.S. at 561. The daylight between this

case on the one hand, and Franklin and Evans on the other, shines in large part from the separation

of powers. It is simply not the role of this Court to legislate, any more through declaratory action

than through injunction. The bridge from our issuance of declaratory relief to Plaintiffs’ receipt

of ultimate redress would necessarily pass through independent congressional action, with all the

political choices and policy considerations entailed therein. It is a bridge too far.

We recognize some surface tension between this case and FEC v. Akins, cited by the Evans

Court as supporting its finding of redressability and thus standing. See Evans, 536 U.S. at 464

(citing Akins, 524 U.S. at 25). Akins concerned those plaintiffs’ quest to persuade the Federal

Election Commission to designate a certain group as a “political committee,” in the hopes

ultimately of obtaining information about the group via statutorily mandated disclosures that

would likely follow from such a designation. 524 U.S. at 15-16. The Akins plaintiffs brought suit

seeking review of FEC’s dismissal of their administrative complaint. Id. at 18. The Supreme

Court found redressability to be present, notwithstanding the fact that “the agency . . . might later,

in the exercise of its lawful discretion, reach the same result for a different reason.” See id. at 25.

And though at least one Court of Appeals judge has read Akins’s redressability finding to rest on

the “assur[ance] that the FEC’s discretionary decision [would be] based on a correct understanding

of the relevant law,” Igartúa-de la Rosa v. United States, 417 F.3d 145, 182 (1st Cir. 2005) (en

banc) (Torruella, J., dissenting), the Supreme Court itself casts Akins’s redressability finding as

being premised on the increased likelihood of FEC ultimately requiring reporting, despite its power

not to do so, Evans, 536 U.S. at 464; accord Akins, 524 U.S. at 21 (casting the injury at issue as

the “inability to obtain information”).

The superficial parallels are at first pass persuasive. Here, as in Akins, the relief requested

is but an initial step toward ultimate redress, Plaintiffs’ achievement of which is dependent upon

choices by government actors who the Court is powerless in the first instance to control. But again

we see daylight between Akins and our case, in that FEC, on receipt of a complaint like the one in

Akins, is obligated to take some action. See 52 U.S.C. § 30109 (detailing how FEC must respond

to such complaints). In other words, Akins is not a case in which the Supreme Court found

redressability in the potential for an independent political actor under absolutely no obligation to

12

act to bestir itself to do so, and then to act in a way that redressed the asserted injury; rather, it was

inevitable in Akins that some action would be taken on those petitioners’ complaint following a

favorable Court ruling. Not so here. We cannot pretend to predict the workings of Congress, and

congressional issuances are not compelled as are FEC’s. To posit that Congress will act, let alone

act in any particular way, is to engage in the sort of speculation that Lujan instructs may not be the

basis for Article III standing. See 504 U.S. at 561.

Finding an absence of both causation and redressability, we hold that insofar as Plaintiffs’

House-related claims are premised on allegedly wrongful congressional inaction, those claims are

nonjusticiable for want of Article III standing and accordingly are dismissed.

VIII. Justiciability of House Claims that Resemble Those Considered in Adams

The above analysis does not close the book on all of Plaintiffs’ claims, however. Although

the central thrust of Plaintiffs’ suit is nonjusticiable, there are portions of the Amended Complaint

that assert a more conventional challenge: one to Plaintiffs’ exclusion from apportionment and, in

the same vein, to the apportionment statutes themselves.5 In line with the conclusion reached in

Adams, we find that Plaintiffs’ constitutional challenges to apportionment are justiciable.

The Amended Complaint makes evident that, though apportionment is not their primary

focus, Plaintiffs do challenge their exclusion therefrom. In their discussion of each of the

Executive Defendants, Plaintiffs zero in on their respective roles in apportionment. See Am.

Compl. ¶¶ 66 (the Secretary of Commerce), 67 (the President). And among the various items of

relief sought are some directed at apportionment: Plaintiffs seek a declaration that the

apportionment statutes (2 U.S.C. § 2a and 13 U.S.C. § 141) “are unconstitutional insofar as they

require or have been applied” to exclude District residents from apportionment, Am. Compl.

Prayer for Relief ¶ 1, and also pray for injunctive relief compelling the Secretary, the President,

5

We do not understand Plaintiffs to be challenging the Uniformed and Overseas Citizens Absentee Voting Act

(“UOCAVA”), Pub. L. No. 99-410, 100 Stat 924 (1986) (codified at 52 U.S.C. §§ 20301-11). UOCAVA requires

States (as well as U.S. territories and the District of Columbia) to permit otherwise-qualified voters residing or

stationed overseas to vote in the last place they were domiciled prior to leaving the United States. 52 U.S.C. §§ 20302,

20310. Although the Amended Complaint does make repeated mention of UOCAVA with respect to Plaintiffs’ equal-

protection claim, see, e.g., Am. Compl. ¶¶ 4, 111, 112, 114, 125, 135, it has none of the hallmarks we would expect

of a complaint challenging UOCAVA’s constitutionality or contending that UOCAVA should be expanded to grant

some District residents the congressional franchise. For instance, the Amended Complaint’s focus is evidently on

securing congressional representation for District residents qua District residents, not as (former) residents of States.

See, e.g., id. ¶¶ 6 (arguing for “the constitutional right of District residents to band together to further their political

beliefs”), 133 (“Without voting representation in the House and the Senate, District residents are unable to rely on

local champions in Congress arguing for a fairer distribution of federal funds.”). None of Plaintiffs’ allegations as to

the Defendants sued pertains to UOCAVA. See id. ¶¶ 59-67. And none of the requested relief addresses UOCAVA

– either striking the statute down wholesale or allowing those District residents who previously resided and voted in

States to continue to vote there. See id. Prayer for Relief ¶¶ 1-7. Because we conclude that Plaintiffs’ constitutional

claims are otherwise foreclosed, we have no occasion for further discussion of UOCAVA.

13

“and their successors in office[] to include the District” in their apportionment calculations and

transmissions, id. ¶ 5(f).6

These aspects of Plaintiffs’ claims map onto Adams, where the panel addressed whether

“the failure to apportion congressional representatives to the District . . . violate[d those plaintiffs’]

constitutional rights[.]” See 90 F. Supp. 2d at 37. The Adams panel considered, in turn, the

political-question and standing doctrines, finding the apportionment claims justiciable on both

scores. 90 F. Supp. 2d. at 40-45. In finding no political-question barrier, the panel noted that

“[t]he Supreme Court has repeatedly declared that ‘[c]onstitutional challenges to apportionment

are justiciable,’” id. at 40 (quoting Franklin, 505 U.S. at 801 (plurality)), and that the question of

whether “District residents are among those qualified to vote for congressional representatives

under Article I” was a “purely legal issue” that “the courts are perfectly capable of resolving,” id.

As to standing, the Adams panel found sufficient causation in the Secretary of Commerce’s actions

pursuant to the apportionment statute. 90 F. Supp. 2d at 41. On redressability, the panel relied

primarily on Franklin, and concluded that “the ability of the court to enjoin the Secretary

establishes the necessary redressability.” 90 F. Supp. 2d at 41-43; see also Evans, 536 U.S. at 459-

64 (Court majority endorsing Franklin’s redressability analysis).

The Supreme Court’s summary affirmances in Adams v. Clinton, 531 U.S. 941 (2000)

(mem.) and Alexander v. Mineta, 531 U.S. 940 (2000) (mem.), necessarily endorsed both of these

justiciability holdings. Had the Supreme Court disagreed with the Adams panel’s justiciability

findings, its action would have been in the nature of dismissal rather than affirmance. See, e.g.,

Rucho v. Common Cause, 139 S. Ct. 2484, 2508 (2019) (finding a nonjusticiable political question,

vacating merits decisions of two three-judge district courts, and remanding “with instructions to

dismiss for lack of jurisdiction”); Va. House of Delegates v. Bethune-Hill, 139 S. Ct. 1945, 1956

(2019) (finding absence of standing and dismissing appeal “for lack of jurisdiction”); see also

Adams v. Clinton, 531 U.S. at 941 (“Justice Stevens would dismiss the appeal.”). That both

summary affirmances were issued in a post-Steel Co. era, see Steel Co., 523 U.S. 83, moreover,

lends additional credence to our conclusion that the Supreme Court considered the jurisdictional

questions and accounted for them in summarily affirming the Adams panel’s judgment. In view

of the similarity between the claims asserted before the Adams panel and those asserted here –

claims that the District’s exclusion from apportionment violates the Constitution, paired with a

prayer for redress via injunctive relief against the Secretary of Commerce – we believe we are

bound by Adams and its summary affirmances to find Plaintiffs’ apportionment claims justiciable

and thus assert jurisdiction over them.

Before proceeding to the merits of those claims still before us, we note that Defendants

also argue for the dismissal of the President from the suit on the grounds that the Court may not

order equitable relief against him for his official conduct and that there is no cause of action against

him. To the extent the first of these arguments is distinct from the second, it goes to the

justiciability of Plaintiffs’ claims, and we find it unnecessary to reach the issue. Again, Adams

anchored its redressability analysis (and thus its finding of standing) in the court’s ability to enjoin

the Secretary of Commerce, 90 F. Supp. 2d at 43-44, and the Supreme Court’s affirmances on the

6

We construe Plaintiffs’ apportionment claims as being asserted only against the Executive Defendants, as the

Amended Complaint makes no apportionment-related allegations against either the Vice President or the President

Pro Tempore of the Senate, see generally Am. Compl., and no other defendants remain before us.

14

merits, Alexander v. Mineta, 531 U.S. 940 (2000) (mem.); Adams v. Clinton, 531 U.S. 941 (2000)

(mem.), dictate that we find standing here. In the absence of any need to do so, we decline to wade

into the question of the President’s amenability to equitable relief. “[T]he partial relief [Plaintiffs]

can obtain against [a] subordinate executive official[] . . . . is sufficient for standing purposes when

determining whether we can order more complete relief would require us to delve into complicated

and exceptionally difficult questions regarding the constit[ut]ional relationship between the

judiciary and the executive branch.” Swan v. Clinton, 100 F.3d 973, 980-81 (D.C. Cir. 1996);

accord Franklin, 505 U.S. at 803 (plurality) (“For purposes of establishing standing, however, we

need not decide whether injunctive relief against the President was appropriate, because we

conclude that the injury alleged is likely to be redressed by declaratory relief against the Secretary

alone.” (citations omitted)). As to the existence of a cause of action against the President, we need

not decide that issue either, because we conclude that dismissal of Plaintiffs’ remaining claims on

Rule 12(b)(6) grounds, including their claims against the President, is otherwise appropriate.

IX. The Merits of Plaintiffs’ Justiciable House Claims

As explained above, insofar as Plaintiffs’ claims are targeted at remediating congressional

inaction, Plaintiffs lack Article III standing to pursue them. With all claims targeting

representation in the Senate remanded to the single-judge District Court from whence they came,

what remains to be decided is whether the apportionment statutes, 13 U.S.C. § 141 and 2 U.S.C.

§ 2a, and the Secretary of Commerce’s and the President’s actions in conformity with the same,

violate Plaintiffs’ rights to equal protection, due process, or freedom of association and

representation due to the resultant denial to Plaintiffs of the House franchise. We answer these

questions, ultimately, in the negative. Our analysis begins with consideration of the effect of

Adams on our disposition of the issues; we then elucidate and unpack the parties’ central premises

before proceeding, finally, to the merits.

A. Adams

Our conclusion that Plaintiffs’ apportionment claims fail to state a claim upon which relief

can be granted may be foreordained, in whole or in part, by Adams and its summary affirmances.

The Adams panel concluded that Article I restricts representation in the House to “the residents of

actual states,” 90 F. Supp. 2d at 47, and on that basis denied those plaintiffs’ equal-protection,

privileges-and-immunities, due-process, and Republican Guarantee Clause challenges to their

exclusion from apportionment, id. at 65-72. The Supreme Court’s summary affirmances of that

panel’s decision – which, again, we are counseled to treat as binding, see Hicks, 422 U.S. at 344 –

beg the question of what was both necessarily decided there and essential to sustain the District

Court’s judgment, see Schneier, Do’s and Don’ts, supra, 960-61. An examination of the

jurisdictional statements submitted to the Supreme Court is illuminating to a point; the (original)

Adams plaintiffs presented, as relevant here,7 only their equal-protection challenge to their

exclusion from apportionment, see Jurisdictional Statement, Adams, 531 U.S. 941 (No. 00-97),

2000 WL 33999989, at *i, while the Alexander plaintiffs disputed the Adams panel’s more basic

conclusion that Article I, Section 2 of the Constitution divests District residents of the

congressional franchise, as well as the broader holding that such a restriction did not conflict with

7

The Adams plaintiffs also “provisionally” presented the question of whether the Adams panel’s handling of their

case had violated their rights to due process. Jurisdictional Statement, Adams, 531 U.S. 941 (No. 00-97), 2000 WL

33999989, at *i.

15

subsequent constitutional amendments, see Jurisdictional Statement, Alexander, 531 U.S. 940 (No.

99-2062), at i.

The jurisprudential landscape as to the precedential effect of summary affirmances is in

such a state as to make the search for a firm place on which to rest a substantive holding

exceedingly difficult. Pressed by necessity, however, we believe that the Supreme Court must

have affirmed the Adams holding that was the basis for the Adams panel’s rejection of each of

those plaintiffs’ specific constitutional challenges: the holding that Article I contemplates that only

“residents of actual states” have and may exercise the House franchise. We reach this conclusion

because this holding is the central premise, and the narrowest ground, on which we perceive Adams

to rise or fall.

But we do not rest wholly on Adams, for several reasons. For starters, Plaintiffs here are

adamant that their claims are not foreclosed by Adams due, inter alia, to Congress’s recent

discovery of the applicability of (and Plaintiffs’ resultant reliance on) the District Clause.8 See,

e.g., Am. Compl. ¶¶ 124-27 (citing, in addition, the interposition of Obergefell v. Hodges, 135 S.

Ct. 2584 (2015), Vieth v. Jubelirer, 541 U.S. 267 (2004), and Gill v. Whitford, 138 S. Ct. 1916

(2018)). Plaintiffs’ new theories, they contend, take the instant case outside the ambit of the Adams

decisions and warrant our fresh consideration of the issues presented. We do not pass on whether

these distinctions, standing alone, would be sufficient to remove this case from Adams’s ambit, for

they are joined by additional considerations. We are heedful of the Supreme Court’s repeated

statements that summary affirmances have less precedential weight than do full opinions. See,

e.g., Wynne, 135 S. Ct. at 1800; Morse, 517 U.S. at 203 n.21. And because the twin summary

affirmances in Adams present “rather slender reed[s]” on which to rest our decision, Celebrezze,

460 U.S. at 784 n.5 (citation omitted), we conduct our own independent analysis, an approach of

which the Supreme Court has previously approved, see id. at 784-85. For the reasons that follow,

we reach the same conclusion on the question of Article I’s import as did the Adams panel twenty

years ago. As in Adams, the conclusion must follow that Plaintiffs’ constitutional challenges to

their exclusion from apportionment and from the House franchise fail.

8

As Plaintiffs and several amici observe, both chambers of Congress have concluded in the time since Adams that

Congress does have the at-issue power. In 2007, the House passed H.R. 1905, which, inter alia, would have treated

the District as a congressional district for the purposes of representation in the House. H.R. 1905, 110th Cong. (2007).

In 2009, the Senate passed S.160, which would have provided the District with a voting seat in the House. S.160,

111th Cong. (2009). Plaintiffs note also that two former D.C. Circuit Judges – Kenneth Starr and Patricia Wald –

testified before Congress in support of Congress’s ability to use its District Clause powers in this manner. See Hearing

on S. 1257, the District of Columbia House Voting Rights Act of 2007, Before the S. Comm. on the Judiciary, 110th

Cong. (2007) (statement of Patricia M. Wald); Common Sense Justice for the Nation’s Capital: Hearing Before the

H. Comm. on Gov’t Reform, 108th Cong., at 75-84 (2004) (statement of Kenneth Starr); but see 155 Cong. Rec. S2529

(daily ed. Feb. 26, 2009) (statement of John P. Elwood, Deputy Assistant Attorney General) (contending the 2007 bill

was unconstitutional). Scholars have also weighed in on both sides of this issue. See, e.g., Jonathan Turley, Too

Clever by Half: The Unconstitutionality of Partial Representation of the District of Columbia in Congress, 76 GEO.

WASH. L. REV. 305 (Feb. 2008); Mark S. Scarberry, Historical Considerations and Congressional Representation for

the District of Columbia: Constitutionality of the D.C. House Voting Rights Bill in Light of Section Two of the

Fourteenth Amendment and the History of the Creation of the District, 60 ALA. L. REV. 783 (2009); Orrin G. Hatch,

“No Right is More Precious in a Free Country”: Allowing Americans in the District of Columbia to Participate in

National Self-Government, 45 HARV. J. ON LEGIS. 287 (Summer 2007); CONG. RESEARCH SERV., THE

CONSTITUTIONALITY OF AWARDING THE DELEGATE FOR THE DISTRICT OF COLUMBIA A VOTE IN THE HOUSE OF

REPRESENTATIVES OR THE COMMITTEE OF THE WHOLE (2009).

16

B. The Parties’ Arguments

To review, Article I of the Constitution provides that “[t]he House of Representatives shall

be composed of Members chosen every second Year by the People of the several States, and the

Electors in each State shall have the Qualifications requisite for Electors of the most numerous

Branch of the State Legislature.” U.S. CONST. art. I, § 2, cl. 1. Section 2, Clauses 2 through 4,9

Section 4, Clause 1,10 Article II Section 1, Clause 2,11 and Section 2 of the Fourteenth

Amendment12 also refer to “States” in discussing House representation. Meanwhile, the District

9

No Person shall be a Representative who shall not have attained to the Age of

twenty five Years, and been seven Years a Citizen of the United States, and who

shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

Representatives and direct Taxes shall be apportioned among the several States

which may be included within this Union, according to their respective Numbers,

which shall be determined by adding to the whole Number of free Persons,

including those bound to Service for a Term of Years, and excluding Indians not

taxed, three fifths of all other Persons. The actual Enumeration shall be made

within three Years after the first Meeting of the Congress of the United States,

and within every subsequent Term of ten Years, in such Manner as they shall by

Law direct. The Number of Representatives shall not exceed one for every thirty

Thousand, but each State shall have at Least one Representative; and until such

enumeration shall be made, the State of New Hampshire shall be entitled to chuse

three, Massachusetts eight, Rhode-Island and Providence Plantations one,

Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware

one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and

Georgia three.

When vacancies happen in the Representation from any State, the Executive

Authority thereof shall issue Writs of Election to fill such Vacancies.

U.S. CONST. art. I, § 2, cl. 2-4.

10

The Times, Places and Manner of holding Elections for Senators and

Representatives, shall be prescribed in each State by the Legislature thereof; but

the Congress may at any time by Law make or alter such Regulations, except as

to the Places of chusing Senators.

U.S. CONST. art. I, § 4, cl. 1.

11

Each State shall appoint, in such Manner as the Legislature thereof may direct, a

Number of Electors, equal to the whole Number of Senators and Representatives

to which the State may be entitled in the Congress: but no Senator or

Representative, or Person holding an Office of Trust or Profit under the United

States, shall be appointed an Elector.

U.S. CONST. art. II, § 1, cl. 2.

12

Representatives shall be apportioned among the several States according to their

respective numbers, counting the whole number of persons in each State,

excluding Indians not taxed. But when the right to vote at any election for the

17

Clause, contained in Article I, Section 8 of the Constitution, provides that “[t]he Congress shall

have Power . . . To exercise exclusive Legislation in all Cases whatsoever, over such District (not

exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of

Congress, become the Seat of the Government of the United States[.]” Id. art I, § 8, cl. 17.

Defendants argue that the Constitution itself “reserves representation in the House and

Senate to residents of a state – a group that does not include residents of the District.” Mem. in

Supp. of MTD at 20. As Defendants see it, because “the Constitution dictates the lack of

representation for residents of the District, . . . all of Plaintiffs’ claims must fail, regardless of

which sections of the Constitution Plaintiffs cite.” Id. at 25 (“Plaintiffs . . . cannot successfully

establish that the Constitution itself is unconstitutional.”). Plaintiffs, on the other hand, argue that

“while the Constitution explicitly requires citizens of States to have voting representation,” it also

authorizes Congress, via the District Clause, to provide the congressional franchise to District

residents.13 Mem. in Supp. of MSJ at 8 (emphasis in original); see Pls.’ Reply at 3, ECF No. 50

(“The constitutional provisions requiring voting representation for state residents set a floor, not a

ceiling.”); see generally id. at 3-11. Plaintiffs’ argument is, essentially: that the District Clause

empowers Congress to treat the District for apportionment purposes as if it were a State; that voting

is a fundamental right that Congress must allocate to all citizens on an equal basis absent a

compelling reason to do otherwise; and that such compelling reason is absent here. It is on this

basis that Plaintiffs seek to establish that the apportionment statutes, 2 U.S.C. § 2a and 13 U.S.C.

§ 141, are unconstitutional for their exclusion from the apportionment process, and their resultant

exclusion from House representation, of District residents.

In a way, the parties are asking the Court to answer different questions. Defendants would

have the Court determine if the Constitution contemplated that only “the People of the several

States” would have voting representation in Congress. If that is the constitutionally ordained

system, say Defendants, Plaintiffs’ claims cannot succeed, as the Constitution cannot be

unconstitutional. Plaintiffs contend that the Court should instead ask if Congress can use its

District Clause powers to allocate Representatives to the District,14 because if it is empowered to

do so, then the ability to elect House Representatives is not inherently limited to “the People of the

choice of electors for President and Vice President of the United States,

Representatives in Congress, the Executive and Judicial officers of a State, or the

members of the Legislature thereof, is denied to any of the male inhabitants of

such State, being twenty-one years of age, and citizens of the United States, or in

any way abridged, except for participation in rebellion, or other crime, the basis

of representation therein shall be reduced in the proportion which the number of

such male citizens shall bear to the whole number of male citizens twenty-one

years of age in such State.

U.S. CONST. amend. XIV § 2.

13

Several amici join Plaintiffs in contending that Congress is empowered by the District Clause to grant District

residents the congressional franchise. See generally Scholars’ Br.; House’s Br.; see also Historians’ Br. at 3-6 (arguing

that there is no historical evidence that the Framers intended to disenfranchise District residents).

14

See supra note 8.

18

several States,” and so it is not a contradiction in terms to say that District residents’ lack of the

House franchise is unconstitutional.15

One difficulty here is that the inquiry Plaintiffs would have the Court undertake is rather

circular: Plaintiffs contend that Congress’s plenary power over the District is what renders those

constitutional provisions that tie House representation to the States nonexclusive. But we break

through this chicken-or-egg conundrum by observing that multiple Supreme Court

pronouncements undercut the notion that Congress’s District Clause power has no outer limits.

The Supreme Court has repeatedly recognized that the other provisions of the Constitution serve

as a check on Congress’s District Clause power. See, e.g., Keller v. Potomac Elec. Power Co.,

261 U.S. 428, 442-44 (1923) (concluding that Congress could not contravene Article III by using

its District Clause powers to create jurisdiction in the Supreme Court to consider appeals from the

D.C. Court of Appeals’ review of utility commission proceedings). That is, Congress’s power

over the District is indeed “plenary” – “save as controlled by the provisions of the Constitution.”

Binns v. United States, 194 U.S. 486, 491 (1904); see also Atl. Cleaners & Dyers v. United States,

286 U.S. 427, 434-35 (1932) (Congress may legislate with respect to the District “so long as other

provisions of the Constitution are not infringed” (citation omitted)); Capital Traction Co., 174

U.S. at 5 (Congress may legislate with respect to the District “so long as it does not contravene

any provision of the constitution of the United States” (citation omitted)); see also Palmore v.

United States, 411 U.S. 389, 397 (1973) (quoting this language from Capital Traction Co.); cf.

Stoutenburgh v. Hennick, 129 U.S. 141, 147 (1889) (stating that, under the District Clause,

Congress “possess[es] the combined powers of a general and of a state government in all cases

where legislation is possible” (emphasis added)).

A striking (if not immediately apparent) instance of Supreme Court recognition of this

limitation can be seen in National Mutual Insurance Co. v. Tidewater Transfer Co., 337 U.S. 582

(1949), which Plaintiffs cite to support their broad reading of Congress’s District Clause power.

In Tidewater, a deeply divided Supreme Court upheld Congress’s provision, in 28 U.S.C. § 1332,

that diversity jurisdiction would be deemed to exist in a case between a citizen of a State and a

citizen of the District. See generally 337 U.S. 582; cf. U.S. CONST. art. III, § 2, cl. 1 (“The judicial

Power shall extend to all Cases . . . between Citizens of different States[.]”). Tidewater is made

up of four different opinions – a three-justice plurality, a two-justice concurrence, and two two-

justice dissents – but six justices agreed that Congress could not use its District Clause power to

override explicit constitutional provisions. Contra Pls.’ Reply at 6-7 (arguing that both the

plurality opinion and the concurrence support their position, albeit through different reasoning).

15

Plaintiffs do not seriously contest the point that the Constitution cannot be unconstitutional; indeed, they “agree”

with Defendants that “the constitutional provisions . . . allocating representatives and Senators to the [S]tates . . . . are

constitutional.” Pls.’s Reply at 3. This is an eminently reasonable position, and we see no need to belabor the

tautology, as it is “settled beyond dispute that the Constitution is not self-destructive.” Billings v. United States, 232

U.S. 261, 282-83 (1914); accord, e.g., Morgan v. United States, 801 F.2d 445, 448 (D.C. Cir. 1986) (“Unless the

Constitution were unconstitutional, one would think that, on those hypotheses, further review would certainly be

barred.” (emphasis in original)); Igartúa v. United States, 626 F.3d 592, 596 (1st Cir. 2010) (concluding that Article

I by its terms prohibits Puerto Rico from having a House Member, and observing that “it cannot, then, be

unconstitutional to conclude the residents of Puerto Rico have no right to vote for Representatives”); Mercer v.

Magnant, 40 F.3d 893, 898 (7th Cir. 1994) (“[P]rocedures required by the Constitution are not themselves

unconstitutional.”).

19

The plurality, while finding that “the District of Columbia is not a state within Article III

of the Constitution,” id. at 588, did hold that Congress could include the District in diversity

jurisdiction through a combination of its District Clause and Necessary and Proper Clause powers;

in a highly contextual analysis, the plurality discussed and built upon other instances in which

Congress had used other plenary Article I powers to confer non-Article-III jurisdiction on Article

III courts, id. at 592-599; see also id. at 603 (“Congress is reaching permissible ends by a choice

of means which certainly are not expressly forbidden by the Constitution.”).

The two-justice concurrence, meanwhile, reasoned that “the words of Article III . . . must

mark the limits of the power Congress may confer on the district courts in the several states,” and

that those limits cannot be overridden “through invocation of Article I without making the

Constitution a self-contradicting instrument,” id. at 607; see also id. at 608 (“[I]t seems past belief

that Article I was designed to enable Congress” to override Article III). The concurrence

concluded, however, that § 1332 was constitutional because Article III’s diversity provision should

not be read as exclusive in the absence of any evidence that the Framers so intended it, id. at 617-

25. The four justices who dissented would have held § 1332 unconstitutional for “disregard[ing]

an explicit limitation of Article III.” Id. at 653; see id. at 655.

Plaintiffs also rely on Loughborough v. Blake, 18 U.S. 317 (1820), contending that it

supports their interpretation of the District Clause. In Loughborough, the Supreme Court

considered whether the Constitution permitted Congress to impose a direct tax on residents of the

District. 18 U.S. at 317-18. In finding that it did, the Supreme Court cited two grounds for

Congress’s power: Article I, Section 8, Clause 1 (the “Power To lay and Collect Taxes, Duties,

Imposts and Excises”), id. at 319-24, and the District Clause, id. at 324-25. Plaintiffs here make

much of Article I, Section 2, Clause 3 (“Representatives and direct Taxes shall be apportioned

among the several States which may be included within this Union, according to their respective

numbers” as determined by the census) and the Supreme Court’s ultimate finding in Loughborough

that direct taxation may be imposed on District residents, arguing that “it therefore follows that

Congress may use its District Clause power to apportion ‘Representatives’ to the District as well,”

Pls.’ Reply at 6. But the Supreme Court’s invocation of the District Clause took place in the

context of its discussion of Congress’s Article I, Section 8, Clause 1 power to tax, a “general grant

of power to lay and collect taxes,” which the Supreme Court considered “incontrovertibl[y]”

“made in terms which comprehend the district and territories as well as the States.”

Loughborough, 18 U.S. at 322. In light of that broad power, the Court considered the

apportionment provision of Article I, Section 2, Clause 3 to “furnish a standard by which taxes are

to be apportioned, not to exempt from their operation any part of our country.” Id. at 320 (“Had

the intention been to exempt from taxation those who were not represented in Congress, that

intention would have been expressed in direct terms.”). As we discuss below, Plaintiffs’ argument

that the same logic could be used to extend House representation to the District via the District

Clause runs up against the other provisions of Article I. In Loughborough, on the other hand, no

other constitutional provision was pointed to as restraining Congress’s District Clause powers. See

id. at 324-25 (discussing only the potential limitations posed by the “great principle . . . that

representation is inseparable from taxation”). In order for Plaintiffs’ analogy to and reliance on

Loughborough to work, the Constitution would have to give Congress plenary power to apportion

representatives – which it simply does not. See generally U.S. CONST. art. I, § 2, cl. 3; id. amend.

XIV, § 2 (setting forth how House Representatives are to be apportioned).

20

In the same vein, the Supreme Court has previously found other power granted Congress

by Article I to be limited by other portions thereof. Powell v. McCormack concerned a newly

reelected Member of the House who, pursuant to a House resolution, was not permitted to take his

seat (because the House suspected him of financial improprieties). 395 U.S. at 489. The Powell

defendants argued that the case presented a nonjusticiable political question because Article I,

Section 5, Clause 1 (“Each House shall be the Judge of the Elections, Returns and Qualifications

of its own Members”) represented a textual commitment of the matter to a coordinate branch of

government. 395 U.S. at 519-20. The Supreme Court undertook an historical analysis of Section

5 and determined that “Art. I, § 5, is at most a ‘textually demonstrable commitment’ to Congress

to judge only the qualifications expressly set forth in the Constitution.” 395 U.S. at 548 (quoting

Baker, 369 U.S. at 217); see also U.S. CONST. art. I, § 2, cl. 2 (“No Person shall be a Representative

who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the

United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be

chosen.”). In other words, the general power granted Congress by Article I, Section 5 ran up

against, and yielded to, the specific provisions of Article I, Section 2.

In a way, Plaintiffs are in fact arguing for the commonsense proposition that Congress’s

power to legislate for the District is cabined by the other provisions of the Constitution: Plaintiffs’

contention is that Congress, by providing for apportionment in a way that does not give the House

franchise to District residents, is running afoul of the First, Fifth, and Fourteenth Amendments.

But this argument ignores the fact that congressional legislation on apportionment does not stand

on its own; rather, it follows the dictates of other portions of the Constitution to the extent the

Constitution itself limits House representation to the States. Therefore, if the Constitution limits

House representation to the “States,” Plaintiffs – who expressly do not concede they must be able

to characterize themselves as residents of a State, and do not argue the District is a State – cannot

succeed on their claims. Despite their protestations to the contrary, Plaintiffs do seek to establish

that the Constitution is unconstitutional, because they argue that the statutes by which Congress

has put Article I’s provisions for apportionment into action (2 U.S.C. § 2a and 13 U.S.C. § 141)

violate the First, Fifth, and Fourteenth Amendments. See Am. Compl. Prayer for Relief ¶ 1

(seeking a declaration that the apportionment statutes “are unconstitutional insofar as they require

or have been applied to effect the exclusion of citizens of the District of Columbia from the

Congressional apportionment process”). Given that Congress’s District Clause power is bounded

by the Constitution’s other provisions, Plaintiffs’ claims must rise or fall on the interpretation of

those provisions that address the makeup of the House electorate.

C. The Merits

We now consider whether the Constitution contemplates that only “the People of the

several States” be permitted to elect voting Representatives to the House. See U.S. CONST. art I,

§ 2, cl. 1. Our answer in the affirmative is based on the Constitution’s text, judicial precedent,

and, to a lesser extent, constitutional history.

1. Constitutional Text

The link between “States” and representation in the House is sewn throughout Article I.

Members of the House are to be elected “by the People of the Several States,” and the qualifications

of “each State[’s]” electors (voters) are tied to those of the electors of the “State Legislature.” U.S.

CONST. art I, § 2, cl. 1 (emphases added). A representative must, at the time of her election, be

“an Inhabitant of that State in which” she is chosen. Id. cl. 2 (emphasis added). Article I as

21

unabridged dictated that both “Representatives and direct Taxes” are “apportioned among the

several States which may be included within this Union,” id. cl. 3 (emphasis added), and the

Fourteenth Amendment provides that “Representatives shall be apportioned among the several

States according to their respective numbers, counting the whole number of persons in each State,”

id. amend. XIV, § 2 (emphases added). Article I, Section 2 further dictates that “each State shall

have at Least one Representative,” and lists the number of representatives to be apportioned to the

thirteen States that were then members of the Union. Id. art. I, § 2, cl. 3 (emphasis added). Section

2 also states that, “[w]hen vacancies happen in the Representation from any State, the Executive

Authority thereof shall issue Writs of Election to fill such Vacancies.” Id. cl. 4 (emphasis added).

And Section 4 provides that “[t]he Times, Places and Manner of holding Elections for Senators

and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress

may at any time by Law make or alter such Regulations, except as to the Places of chusing

Senators.” Id. § 4, cl. 1 (emphasis added).

As the Adams panel noted, 90 F. Supp. 2d at 47-49, a reading of “State” in the applicable

provisions of Article I that encompassed the District would lead to results that either are impossible

or cannot have been contemplated by the Framers. Voter eligibility is tied to that for the “State

Legislature,” U.S. CONST. art I, § 2, cl. 1, but until the 1973 passage of the Home Rule Act, Pub.

L. No. 93-198, 87 Stat. 777, the District of Columbia had nothing analogous; rather, Congress

itself was conceived of as the District’s legislative body. See U.S. CONST. art. I, § 8, cl. 17; see

also, e.g., Stoutenburgh, 129 U.S. at 147 (noting that the District Clause grants Congress “the

combined powers of a general and of a state government in all cases where legislation is possible”).

If the “State Legislature” referred to in Article I were read to comprehend Congress as the District’s

legislature, “with the House as its most numerous branch, then the clause would say no more than

that voters for the House must have the qualifications requisite for voters for the House—a

tautology without constitutional content.” Adams, 90 F. Supp. 2d at 48. Another example is

Article I, Section 2, Clause 4’s provision for the filling of vacancies “from any State [by] the

Executive Authority thereof[.]” U.S. CONST. art. I, § 2, cl. 4. Although the District now has a

mayor, this is again a relatively recent invention – and Congress is the District’s “ultimate

executive authority,” Adams, 90 F. Supp. 2d at 49 (citing N. Pipeline Constr. Co. v. Marathon Pipe

Line Co., 458 U.S. 50, 76 (1982) (“Congress’ power over the District of Columbia encompasses

the full authority of government, and thus, necessarily, the Executive and Judicial powers as well

as the Legislative.”)), meaning that, were the District to be comprehended within the applicable

passages, Congress itself would fill any vacancies in the District’s seat(s). As the Adams panel

cogently observed, “[t]he possibility that the Framers intended Congress to fill its own vacancies

seems far too much of a stretch, even if the constitutional fabric were more flexible than it appears

to be.” Id.

“The framers of the constitution employed words in their natural sense; and, where they

are plain and clear, resort to collateral aids to interpretation is unnecessary, and cannot be indulged

in to narrow or enlarge the text[.]” McPherson v. Blacker, 146 U.S. 1, 27 (1892); but see id.

(“[B]ut where there is ambiguity or doubt, or where two views may well be entertained,

contemporaneous and subsequent practical construction is entitled to the greatest weight.”).

Although we perceive no ambiguity in Article I’s dictates concerning the “States” whose “people”

are entitled to the House franchise, we proceed to dispel any remaining doubts by considering

judicial constructions of the relevant portions of Article I, and reiterating an historical issue

surfaced in Adams.

22

2. Precedent

“Whether the District of Columbia constitutes a ‘State or Territory’ within the meaning of

any particular statutory or constitutional provision depends upon the character and aim of the

specific provision involved.” District of Columbia v. Carter, 409 U.S. 418, 420 (1973). We are

not persuaded that any of the Constitution’s other uses of the word “State” address matters near

enough to those here at issue that their judicial interpretations would shed light on the question

before us; we therefore concern ourselves only with judicial pronouncements on the import of the

word “State” in the at-issue provisions of Article I.

Given Plaintiffs’ unusual position in the American constituency and the resultant scarcity

of analogous cases, it is not surprising that the most on-point appellate precedent is only

persuasive. The First Circuit considered in 2010 whether U.S. citizens residing in Puerto Rico had

a right to elect a Representative to the House. Igartúa v. United States, 626 F.3d 592 (1st Cir.

2010). In holding that the Constitution foreclosed such a right, the First Circuit surveyed the

constitutional text, and noted:

The text of the Constitution defines the term “State” and affords no

flexibility as to its meaning. The term is unambiguous and refers to

the thirteen original states, which are specifically named in Article

I, Section 2, [U.S. CONST.] art. I, § 2, cl. 3, and those which have

since joined the Union through the process set by the Constitution,

id. art. IV, § 3, cl. 1 . . . . Because Puerto Rico is not a state, it may

not have a member of the House of Representatives. Id. art. I, § 2,

cl. 1. . . . The text of the Constitution does not permit plaintiffs to

vote for a member of the U.S. House of Representatives.

Igartúa, 626 F.3d at 596; see also id. (“It cannot, then, be unconstitutional to conclude the residents

of Puerto Rico have no right to vote for Representatives.”). Igartúa also discusses how “central”

statehood is “to the very existence of the Constitution.” Id. at 596-98 (concluding that “[v]oting

rights for the House of Representatives are limited to the citizens of the states absent constitutional

amendment to the contrary.”). Those few other federal appellate cases to have considered the

precise issue have held similarly. See Segovia v. United States, 880 F.3d 384, 390 (7th Cir. 2018)

(discussing, in a case brought by former State residents who now resided in territories, the voting

rights accorded to residents of the District and the territories, and observing, “The unmistakable

conclusion is that, absent a constitutional amendment, only residents of the 50 States have the right

to vote in federal elections”); Igartúa v. Trump, 868 F.3d 24 (1st. Cir. 2017) (noting, in a four-

judge statement on denial of rehearing of Igartúa en banc, that the plaintiff’s claim “is that the

United States Constitution makes it unconstitutional to apportion congressional districts as the

Constitution itself says to apportion them,” and that none of the judges dissenting from a denial of

rehearing “even tries to explain how the Constitution itself might conceivably prohibit that which

it directs ‘shall be’ done”). Though of course we are bound by none of these decisions, we find

them persuasive – especially in the absence of any caselaw to the contrary.

Our own Court of Appeals has opined on the topic to a certain extent. The Adams panel,

of course, concluded – after an exhaustive analysis – that “the language of Article I . . . makes

clear just how deeply [c]ongressional representation is tied to the structure of statehood.” 90 F.

Supp. 2. at 47; see also id. at 68 (“[T]he inability of District residents to vote is a consequence of

23

Article I.”). The D.C. Circuit, citing Adams, has stated in dictum that “the Constitution denies

District residents voting representation in Congress.” Banner v. United States, 428 F.3d 303, 309

(D.C. Cir. 2005) (per curiam) (citing Adams, 90 F. Supp. 2d at 72); see also United States v.

Thompson, 452 F.2d 1333, 1340 (D.C. Cir. 1971) (“[F]or residents of the District, the right to vote

in congressional elections is not merely restricted–it is totally denied.” (dictum)), abrogation on

other grounds recognized by United States v. Cohen, 733 F.2d 128, 135 (D.C. Cir. 1984) (en banc).

The D.C. Circuit has further noted, in a 1994 case concerning a House rule that permitted the

District’s Delegate to vote in the Committee of the Whole, that the language of Article I, Section

2 “precludes the House from bestowing the characteristics of membership” – which include the

ability “to vote in the full House” – “on someone other than those ‘chosen every second Year by

the People of the Several States.’” Michel v. Anderson, 14 F.3d 623, 630 (D.C. Cir. 1994); see

also id. at 632 (upholding the House rule in question because “insofar as the rule change bestowed

additional authority on the delegates, that additional authority is largely symbolic . . . . [W]e do

not think this minor addition to the office of delegates has constitutional significance.”).

Supreme Court pronouncements on the subject are a lightly mixed bag. Historically, the

Supreme Court has evinced an understanding that House representation is limited to the people of

the States. For instance, considering in 1901 whether the Constitution’s revenue clauses extended

to U.S. territories, the Supreme Court emphasized that “[t]he Constitution was created by the

people of the United States, as a union of states, to be governed solely by representatives of the

states . . . . In short, the Constitution deals with states, their people, and their representatives.”

Downes v. Bidwell, 182 U.S. 244, 251 (1901) (emphases in original); see also Hepburn & Dundas

v. Ellzey, 6 U.S. 445, 452-53 (1805) (quoting language from Article I regarding House, Senate,

and presidential elections, and concluding, “These clauses show that the word state is used in the

constitution as designating a member of the union . . . . [This] term . . . [is] used plainly in this

limited sense in the articles respecting the legislative and executive departments[.]”). The Supreme

Court has also referred to the District as having “voluntarily relinquished the right of

representation.” Loughborough, 18 U.S. at 324; see also id. at 324-25 (“[C]ertainly the

[C]onstitution does not consider their want of a representative in Congress as exempting it from

equal taxation.”).

More recently, the Supreme Court has spoken of the right to vote for Members of Congress

as rooted in the individual rather than deriving from the State – but these pronouncements are fairly

general, not particularly on point, and ultimately insufficient to counteract what we read as the

clear provisions of Article I. See, e.g., U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 804

(1995) (“The [Constitution’s] salary provisions reflect the view that representatives owe their

allegiance to the people, and not to the States.”); id. at 808 (“As Madison noted, allowing States

to differentiate between the qualifications for state and federal electors ‘would have rendered too

dependent on the State governments that branch of the federal government which ought to be

dependent on the people alone.’” (quoting THE FEDERALIST NO. 52, at 326 (James Madison)));

Wesberry v. Sanders, 376 U.S. 1, 14 (1964) (“The House of Represen[t]atives, the Convention

agreed, was to represent the people as individuals, and on a basis of complete equality for each

voter.”).

In sum, the weight of what precedent there is on the issue supports our reading of Article I

as limiting House representation to the people of the States.

24

3. Constitutional History

We do not here rehearse constitutional history writ large. Although Plaintiffs (and some

of their amici) spend a fair amount of time on historical arguments, nowhere is it contended that

the Framers of the Constitution intended, by their repeated reference to “States” in Article I, to

refer to anything but those entities of which the Union then had thirteen and now has fifty. Cf.

Adams, 90 F. Supp. 2d at 56 (“There is simply no evidence that the Framers intended that not only

citizens of states, but unspecified others as well, would share in the congressional franchise.”).

But we linger in constitutional history long enough to reiterate and underline a critical point made

in Adams: namely, that the process by which Congress came to be composed as it is counsels

against the broad, nonexclusive reading of “State(s)” that would necessarily underpin the

prevalence of Plaintiffs’ claims.

The bicameral structure of Congress was the result of the Constitutional Convention’s

Great Compromise – a deal struck between delegates who favored election by and representation

of the people, and those delegates (including those from small States) who argued that the States

should instead be represented. Wesberry, 376 U.S. at 9-14; see also id. at 10 (“The question of

how the legislature should be constituted precipitated the most bitter controversy of the

Convention.”), 12 (“The dispute came near ending the Convention without a Constitution.”). The

Adams panel observed that “the House provisions . . . were ‘the other side of the compromise’: to

satisfy the larger states, the House was to be popularly elected, and ‘in allocating Congressmen

the number assigned to each State should be determined solely by the number of the State’s

inhabitants.’” 90 F. Supp. 2d at 50 (quoting Wesberry, 376 U.S. at 13) (emphasis in Adams). The

point we underscore is that the constitution of Congress was the considered result of extensive

debate, and in the absence of any evidence that the Framers intended something other than what

they wrote, it is not the place of either Congress (acting via the District Clause) or this Court to

revise the results of the compromise that was so central to the formation of the country as it is.

X. Conclusion

Because Congress’s District Clause power does not include the power to contravene the

Constitution’s express provisions, and because the Constitution by its terms limits House

representation to “the people of the several States,” we find that Plaintiffs’ claims that their

exclusion from apportionment is violative of their rights to equal protection, due process, and

association and representation fail to state a claim upon which relief can be granted. See FED. R.

CIV. P. 12(b)(6). We therefore dismiss those claims. Having also dismissed those of Plaintiffs’

claims that sought to compel affirmative congressional action, and having remanded to a single

District Judge Plaintiffs’ Senate claims, our work is now at an end.

But before we end, we note what gives us pause. We have been and remain cognizant of

the gravity of Plaintiffs’ asserted injury, which has long been of great concern both to those

similarly injured and to sympathetic others who take to heart the democratic ideals that impelled

and informed the creation of the Union. After all, “[n]o right is more precious in a free country

than that of having a voice in the election of those who make the laws under which, as good

citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is

undermined.” Wesberry, 376 U.S. at 17. But the House’s makeup, though enshrined in the

Constitution, is not written in stone. The Founders provided for processes for the admission of

new States, see U.S. CONST. art. IV, § 3, cl. 1 – which are then represented in the House under the

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provisions of Article I – and for amending the Constitution, see id. art. V, as was done to give

District residents the presidential franchise, see id. amend. XXIII. In other words, Plaintiffs may

continue to “plead their cause in other venues,” Adams, 90 F. Supp. 2d at 72: those the Constitution

countenances.

For the foregoing reasons, those of Plaintiffs’ claims seeking Senate representation are

REMANDED to the single District Judge to whom the case was originally assigned. Defendants’

Motion to Dismiss, ECF No. 21, is hereby GRANTED IN PART; all of Plaintiffs’ claims except

those seeking Senate representation are DISMISSED. Plaintiffs’ Motion for Summary Judgment,

ECF No. 23, is hereby DENIED.

An accompanying order will follow.

/s/ Robert L. Wilkins

ROBERT L. WILKINS

United States Circuit Judge

/s/ Randolph D. Moss

RANDOLPH D. MOSS

United States District Judge

/s/ Trevor N. McFadden

TREVOR N. McFADDEN

United States District Judge

Date: March 12, 2020

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