Constitutionality of the D.C. House Voting Rights Act of 2009

Constitutionality of the D.C. House

Voting Rights Act of 2009

The constitutionality of the District of Columbia House Voting Rights Act of 2009 presents

a close question, but the balance tips in favor of finding the Act constitutional.

Neither the text of the Constitution nor the analysis of applicable precedent clearly

resolves the question of whether Congress may confer House voting rights on D.C.

residents by legislation.

In the absence of a clear constitutional prohibition, the Constitution does not require

denying the most basic rights in a democracy—the right to elect representation in the

legislature and therefore to self-governance—to U.S. citizens who happen to be resi-

dents of the District of Columbia.

February 26, 2009

MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT *

You have requested the view of the Department of Justice regarding the

constitutionality of H.R. 157 and S. 160, which propose legislation grant-

ing congressional representation to the District of Columbia (collectively,

the “D.C. House Voting Rights Act”). Although it presents a close consti-

tutional question, in my view, for the reasons explained below, the bal-

ance tips in favor of finding this proposed legislation constitutional.

I. Executive Summary

H.R. 157 and S.160 would give the District of Columbia one voting

member in the House of Representatives. Each bill includes a provision

stating: “Notwithstanding any other provision of law, the District of

Columbia shall be considered a Congressional district for purposes of

representation in the House of Representatives.” H.R. 157, § 2(a); S. 160,

§ 2(a). Each bill would grant the citizens of the District the ability to elect

a voting member of the House of Representatives by identifying it as a

congressional district in its own right, although neither bill purports to

grant the District statehood.

* Editor’s Note: This opinion refers to views of the Office of Legal Counsel on the

same legislation, which are available elsewhere in this volume. See Views on Legislation

Making the District of Columbia a Congressional District, 33 Op. O.L.C. 156 (2009).

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Constitutionality of the D.C. House Voting Rights Act of 2009

There are a number of strong arguments against the constitutionality of

such a statute, including those advanced by the Office of Legal Counsel

with respect to prior versions of the proposed legislation. See Constitu-

tionality of the D.C. Voting Rights Act of 2007, 31 Op. O.L.C. 147 (2007)

(“D.C. Voting Rights Act ”) (statement of John P. Elwood, Deputy Assis-

tant Attorney General, Office of Legal Counsel); E-mail for Velma

Taylor, Office of Legislative Affairs, from Michelle Boardman, Deputy

Assistant Attorney General, Office of Legal Counsel, Re: H.R. 5388, the

District of Columbia Fair and Equal House Voting Rights Act of 2006

(May 22, 2006). The Office of Legal Counsel has recently presented to

me its view that the current proposed legislation is similarly infirm. These

arguments rest primarily on the text of Article I, Section 2 of the Consti-

tution (the “Composition Clause”), which provides: “The House of Rep-

resentatives 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 (emphasis added).

At the same time, there are a number of compelling arguments in favor

of the constitutionality of the proposed legislation, including those ad-

vanced by a diverse array of well-respected constitutional scholars. See,

e.g., Viet D. Dinh & Adam H. Charnes, The Authority of Congress to

Enact Legislation to Provide the District of Columbia with Voting Repre-

sentation in the House of Representatives at 19 (Nov. 2004), https://

www.dcvote.org/sites/default/files/upload/vietdinh112004.pdf (“Dinh

& Charnes”); Common Sense Justice for the Nation’s Capital: An Exami-

nation of Proposals to Give D.C. Residents Direct Representation: Hear-

ing Before the H. Comm. on Gov’t Reform, 108th Cong. 77–84 (June 23,

2004) (Serial No. 108-218) (statement of Kenneth W. Starr); Ending

Taxation Without Representation: The Constitutionality of S. 1257: Hear-

ing Before the S. Comm. on the Judiciary, 110th Cong. 18–22 (May 23,

2007) (S. Hrg. No. 110-440; Serial No. J-110-38) (statement of Patricia

Wald) (“Wald Statement”); see also Peter Raven-Hansen, Congressional

Representation for the District of Columbia: A Constitutional Analysis, 12

Harv. J. on Legis. 167, 191 (1975). These scholars rely upon Congress’s

plenary power to legislate for the District of Columbia under Article I,

Section 8, Clause 17 (the “District Clause”), together with case law hold-

ing that, under the authority conferred by the District Clause, Congress

39

33 Op. O.L.C. 38 (2009) (Holder, Att’y Gen.)

may provide that the District should be treated as a state for constitutional

purposes. In addition, proponents of the legislation contend that funda-

mental principles of democracy and the importance of the right to vote—

principles that animate the Constitution and undergird our founding as a

nation—further buttress their constitutional analysis.

These competing arguments highlight the fact that the constitutionality

of the D.C. House Voting Rights Act presents a close constitutional

question. Neither the text of the Constitution nor the analysis of applica-

ble precedent clearly resolves the question of whether Congress may

confer House voting rights on D.C. residents by legislation. In addition,

should Congress enact the proposed legislation, that act would embody

the will of the people of the United States to extend the franchise to

District citizens. In that context, and in the absence of a clear constitu-

tional prohibition, I cannot conclude that the Constitution requires us to

ignore the will of the American people and to deny the most basic rights

in a democracy—the right to elect representation in the legislature and

therefore to self-governance—to U.S. citizens who happen to be residents

of our nation’s capital, the District of Columbia. 1

II. The D.C. House Voting Rights Act of 2009 Is Constitutional

A. The District Clause Empowers Congress to

Provide Congressional Representation to

Residents of the District of Columbia

The District Clause confers on Congress the power to “exercise exclu-

sive Legislation in all Cases whatsoever, over such District . . . as may . . .

become the Seat of the Government of the United States.” U.S. Const.

art. I, § 8, cl. 17. In my view, the power conferred by the District Clause

includes the authority to create a congressional district within the District

of Columbia.

1 The closeness of the constitutional question precludes confident prediction regarding

the outcome of any litigation regarding the constitutionality of the proposed legislation.

Consequently, decision-makers should be mindful of the substantial litigation risks

associated with the possibility of judicial review of a congressional decision to extend

voting rights of the District of Columbia by ordinary legislation, should the courts find an

appropriate vehicle to conduct such a review.

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Constitutionality of the D.C. House Voting Rights Act of 2009

The Supreme Court has held that Congress’s power under the District

Clause is plenary, providing Congress with “full and unlimited juris-

diction to provide for the general welfare of District citizens by any and

every act of legislation which it may deem conducive to that end.” Nat’l

Mut. Ins. Co. of D.C. v. Tidewater Transfer Co., 337 U.S. 582, 601 (1949)

(quoting Neild v. Dist. of Columbia, 100 F.2d 246, 250 (D.C. Cir. 1940)).

Moreover, when Congress exercises its power to legislate for the District,

it “acts as a legislature of national character, exercising complete legisla-

tive control as contrasted with the limited power of a state legislature, on

the one hand, and as contrasted with the limited sovereignty which Con-

gress exercises within the boundaries of the states, on the other.” Id. at

602; see also Palmore v. United States, 411 U.S. 389, 397–398 (1973);

United States v. Cohen, 733 F.2d 128, 140 (D.C. Cir. 1984) (Scalia, J.)

(noting that Congress has “extraordinary plenary power” in legislating for

the District).

The Supreme Court has upheld Congress’s authority to enact legislation

that treats the District of Columbia as a “state” for constitutional purpos-

es, even where the text of the Constitution, by referring to “states,” would

appear to preclude such legislation. In Tidewater Transfer, a three-Justice

plurality upheld Congress’s power to confer jurisdiction on federal courts

over state-law suits between citizens of the District and citizens of other

States. 337 U.S. at 603–04. The plurality did so even though the text of

Article III purported to limit such jurisdiction only to suits “between

citizens of different states.” U.S. Const. art. III, § 2, cl. 1. The plurality

acknowledged Chief Justice Marshall’s conclusion in Hepburn & Dundas

v. Ellzey, 6 U.S. (2 Cranch) 445 (1805), that “the District of Columbia is

not a state within Article III of the Constitution,” Tidewater Transfer, 337

U.S. at 588, as well as the concomitant conclusion that a state-law suit

between a District resident and a citizen of a state would not be diverse

within the meaning of Article Ill’s explicit language, id. at 600. The

plurality noted, however, that Hepburn & Dundas had not considered the

exact question before it, whether Congress could exercise its authority

under the District Clause to create diversity jurisdiction under Article III

for suits involving residents of the District. The plurality also noted that

the Court’s opinion in Hepburn & Dundas suggested that Congress could

create a “legislative” solution:

41

33 Op. O.L.C. 38 (2009) (Holder, Att’y Gen.)

It is therefore significant that . . . the Chief Justice added, as we have

seen, that it was extraordinary that the federal courts should be

closed to the citizens of “that particular district which is subject to

the jurisdiction of congress.” Such language clearly refers to Con-

gress’ Art. I power of “exclusive Legislation in all Cases whatsoev-

er, over such District.” And mention of that power seems particularly

significant in the context of Marshall’s further statement that the

matter is a subject for “legislative not for judicial consideration.”

[Hepburn & Dundas, 6 U.S. at 453.] Even if it be considered specu-

lation to say that this was an expression by the Chief Justice that

Congress had the requisite power under Art. I, it would be in the

teeth of his language to say that it is a denial of such power.

Tidewater Transfer, 337 U.S. at 589. The plurality concluded that “[t]o

put federally administered justice within the reach of District citizens . . .

is an object which Congress has a right to accomplish,” and Congress’s

determination that it had the authority to use Article I to confer jurisdic-

tion of the district courts was entitled to deference. Id. at 603, 607. 2

Two other cases have upheld Congress’s power to enact legislation that

treated the District of Columbia as though it were a state for purposes of

a constitutional provision. 3 In Milton S. Kronheim Co. v. District of

Columbia, 91 F.3d 193 (D.C. Cir. 1996), the Court of Appeals for the

District of Columbia upheld Congress’s treatment of D.C. as a state for

purposes of the Twenty-First Amendment, which provided that “[t]he

transportation or importation into any state, territory, or possession of

2 Two Justices concurred in the judgment, but would have overruled Hepburn & Dun-

das and held that D.C. was a state under Article III. They disagreed with the plurality’s

holding that the District Clause provided Congress the necessary authority to supplement

the jurisdiction conferred by Article III. Tidewater Transfer, 337 U.S. at 621–26. Al-

though no rationale commanded a majority of the Court, a majority concluded that the

District of Columbia could be treated as a state for purposes of a constitutional provision

that was seemingly limited to “states.”

3 Although they do not analyze Congress’s power under the District Clause, several

opinions of the Supreme Court have held that the District of Columbia is a state for

purposes of some constitutional provisions. See, e.g., Stoutenburgh v. Hennick, 129 U.S.

141 (1889) (holding that the District of Columbia was a state within the meaning of the

Commerce Clause); Callan v. Wilson, 127 U.S. 540 (1888) (stating that the Sixth

Amendment right to “impartial jury in the state and [judicial] district” of the crime applies

to D.C.).

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Constitutionality of the D.C. House Voting Rights Act of 2009

the United States for delivery or use therein of intoxicating liquors, in

violation of the laws thereof, is hereby prohibited.” U.S. Const. amend.

XXI, § 2. The court was considering a D.C. statute that regulated the

storage of liquor in the District, and that arguably would have violated the

dormant Commerce Clause if the Twenty-First Amendment were held not

to apply to D.C. The court upheld the statute and stated that “we will treat

the District of Columbia as a state for purposes of the Twenty-First

Amendment analysis. Congress determined at the time of the passage of

the ABC Act . . . that the District would function in a state-like manner

for alcohol regulation purposes. We have no warrant to interfere with

Congress’s plenary power under [the District Clause].” Kronheim, 91 F.3d

at 201. Similarly, in Clarke v. Washington Metropolitan Area Transit

Authority, 654 F. Supp. 712, 714 n.1 (D.D.C. 1985), aff’d, 808 F.2d 137

(D.C. Cir. 1987), the District Court for the District of Columbia upheld

Congress’s power to enact legislation that treated the District as a state for

purposes of Eleventh Amendment immunity, despite that amendment’s

textual application only to each “one of the United States.”

In response to these arguments, opponents of the constitutionality of the

D.C. House Voting Rights Act have pointed out that Congress may exer-

cise its District Clause power only in accordance with other provisions of

the Constitution. But Tidewater Transfer and the other cases support the

argument that Congress has some leeway, pursuant to the District Clause,

to prescribe the manner in which the District will be treated for purposes

of various constitutional provisions. Presumably, that discretion is limited

by the rest of the Constitution, in the sense that Congress may not treat

the District as a state if doing so would violate the fundamental principles

expressed in the Constitution (as opposed to the literal text that limits a

provision to “states”). See Tidewater Transfer, 337 U.S. at 585. As dis-

cussed below, there are persuasive arguments that granting House voting

rights does not offend the structural principles animating Article I.

B. Important Constitutional Principles Reinforce

Congress’s Power Under the District Clause

Congress’s power to treat the District as though it were a state for pur-

poses of representation in the House of Representatives is consistent with

two vitally important constitutional principles: that the Constitution

43

33 Op. O.L.C. 38 (2009) (Holder, Att’y Gen.)

protects the right to be represented in the federal government, and that

this right belongs to the people, rather than the states. A narrow reading of

Congress’s authority under the District Clause would contravene the very

structural and political principles that Article I’s voting provisions were

designed to protect.

First, there is no question that the right to vote for representation in the

House of Representatives is fundamentally important. Any consideration

of Congress’s Article I power must take place against the backdrop of the

principles of self-government that illuminated the framing of the Constitu-

tion. See Powell v. McCormack, 395 U.S. 486, 547 (1969) (interpreting

Article I in light of principle of self-representation). Congressional action

to grant D.C. voting rights would vindicate these principles by expanding

the franchise. The right to participate in government directly—to petition

it, alter it, or abolish it—was thought of by many framers as an inalienable

right that could not be vitiated by governmental action, even on the con-

stitutional level. Under this theory, while the Constitution may not have

explicitly commanded that District residents receive the vote, it may not

be interpreted in a manner that invalidates an expansion of the franchise

that a majority of the people, as represented by a majority of the House

and Senate, wish to grant.

Second, extending the vote to District residents would vindicate—

rather than undermine—the structural principles expressed in Article I.

While the Senate was designed to provide representation to the states, the

House was designed to represent the people directly. See, e.g., Sen. 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, 304 (2008); U.S. Const. art. I, § 2,

c1. 1 (House members to be chosen by “the people of the several states”).

The Framers intentionally vested this right in the people, so that its en-

joyment would not depend on state citizenship or state regulation. See

U.S. Term Limits v. Thornton, 514 U.S. 779, 844 (1995) (Kennedy, J.,

concurring) (“The federal right to vote . . . does not derive from the state

power in the first instance but . . . belong[s] to the voter in his or her

capacity as a citizen of the United States”); id. at 845 (the right arises out

of the “relationship between the people of the Nation and their National

Government, with which the States may not interfere”); id. at 805 (Ste-

vens, J., for the Court) (noting that “‘while, in a loose sense, the right to

44

Constitutionality of the D.C. House Voting Rights Act of 2009

vote for representatives in Congress is sometimes spoken of as a right

derived from the states,’” in fact it “was a new right, arising from the

Constitution itself” (quoting United States v. Classic, 313 U.S. 299, 315

(1941)). Given that the right to House representation actually resides in

the people themselves, it would over-read the language of the Composi-

tion Clause to hold that it explicitly precludes a congressional exercise of

Congress’s power under the District Clause to grant House voting rights

to the District’s residents.

Relatedly, expanding access to the vote in this manner would not inter-

fere with any other core principles underlying the structure established in

Article I. Providing the District with a House vote would not dilute any

other citizens’ right to vote (at least, it certainly would not dilute anyone’s

representation to any greater extent than any other exercise of Congress’s

authority to increase the number of representatives “in such Manner as

they shall by law direct,” U.S. Const. art. I, § 2, cl. 3). See Wald State-

ment at 10. Nor would providing voting rights threaten to aggrandize the

national government. As the Court has noted, one of the predominant

concerns surrounding the establishment of Congress’s power to govern

itself was the fear that elected officials would use that power at the ex-

pense of the people or the states. See Powell, 395 U.S. at 533–34. As a

result the framers were particularly concerned with Congress’s ability to

limit the number or type of people who could become representatives. See

2 Records of the Federal Convention of 1787 249–50 (M. Farrand ed.,

1911) (“A Republic may be converted into an aristocracy or oligarchy as

well by limiting the number capable of being elected, as the number

authorized to elect.” (Madison)); Powell, 395 U.S. at 548 (in light of

“fundamental principle of our representative democracy . . . that the

people should choose whom they please to govern them,” holding that

Congress could not supplement the Constitution’s list of qualifications for

office (internal citations omitted)), Here, granting the residents of the

District the right to elect a single representative would not run this risk or

contravene the rule against aggrandizement. Congress would be expand-

ing, rather than limiting, the ability of the people to elect the officials of

their choice.

45

33 Op. O.L.C. 38 (2009) (Holder, Att’y Gen.)

C. No Other Controlling Authority Resolves the Question

1. Selected Cases Holding That the District Is Not a State

for Unrelated Purposes Do Not Apply Here

Although the federal courts have ruled that the District of Columbia is

not a “state” under specific provisions of the Constitution, it does not

follow that the proposed legislation is necessarily unconstitutional. This is

because the question with respect to the D.C. House Voting Rights Act is

not whether the District is a “state,” but whether Congress has authority

under the District Clause to enact legislation that treats the District as a

state for purposes of voting representation in the House. For example, in

Hephurn & Dundas, Chief Justice Marshall held that a statute conferring

diversity jurisdiction on the federal courts did not apply to suits between

citizens of D.C. and citizens of a state. Reasoning that other constitutional

provisions used the word “state” to refer only to states, the Court conclud-

ed that Congress did not intend the statute, which was modeled on the

language of Article III, to create federal jurisdiction over suits involving

District residents. Put simply, the question of Congress’s power under the

District Clause to pass legislation that treated the District of Columbia as

a congressional district was not before the Court.

Likewise, and more recently, in Adams v. Clinton, 90 F. Supp. 2d 35

(D.D.C. 2000), a three-judge panel of the D.C. District Court applied

Hepburn & Dundas to hold that the District was not a state under the

Composition Clause, and therefore that the Constitution itself did not

confer voting rights on D.C. residents. The court concluded that because

“the Constitution does not contemplate that the District may serve as a

state for purposes of the apportionment of congressional representatives,”

id. at 50, “the clauses of Article I that provide for congressional voting

. . . are not applicable to residents of the District of Columbia,” id. at 60.

The Supreme Court summarily affirmed the decision. 531 U.S. 941. Like

Hepburn & Dundas, Adams does not prohibit Congress from granting

voting rights by legislation, because it addressed a question that is not

raised here, namely, whether Article I itself directly provided District

residents with a constitutionally compelled right to vote. 90 F. Supp. 2d at

38. Indeed, the court distinguished its case from Tidewater Transfer

because, in Tidewater Transfer, Congress had affirmatively exercised its

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Constitutionality of the D.C. House Voting Rights Act of 2009

legislative authority to supplement Article III and therefore the plurality

had not held that the Constitution itself established the District as a state

for purposes of Article III. Adams, 90 F. Supp. 2d at 54–55. 4

2. Passage of the Twenty-Third Amendment Does Not

Bear on Congress’s Power to Grant Congressional

Voting Rights to District Residents by Legislation

Another potential argument against the constitutionality of the D.C.

House Voting Rights Act rests on the fact that D.C. residents were granted

the right to vote in presidential elections by means of the Twenty-Third

Amendment. Some have taken Congress’s prior use of a constitutional

amendment to expand voting rights within the District to reflect the need

to use an amendment to work any type of expansion of D.C.’s voting

rights.

Congress’s choice to use an amendment to establish voting rights for

presidential elections does not imply that a constitutional amendment is

the only means by which voting rights may be granted, however. The

Twenty-Third Amendment was designed to address a wholly different

constitutional issue, voting for President under Article II, an issue over

which Congress had limited authority. See Oregon v. Mitchell, 400 U.S.

112 (1970) (holding that Congress may regulate presidential elections

through Section 5 of the Fourteenth Amendment, but not through its

Article I powers). Because the Fourteenth Amendment did not apply to

the District, Congress was forced to use a constitutional amendment,

rather than legislation, to provide the District’s residents with the right to

vote in presidential elections. See Dinh & Charnes at 21. This problem

would not be present with respect to the proposed legislation, given that

Congress has power to regulate House elections under Article I and the

District Clause.

4 Other cases that refer to the right of District residents to vote for congressional repre-

sentation, see, e.g., Michel v. Anderson, 14 F.3d 623 (D.C. Cir. 1994) (holding that House

rules cannot confer a voting representative to District residents); Banner v. United States,

428 F.3d 303, 309 (D.C. Cir. 2005) (holding that, pursuant to the District Clause, Con-

gress can prohibit the imposition of a commuter tax), can similarly be distinguished.

47

33 Op. O.L.C. 38 (2009) (Holder, Att’y Gen.)

D. The United States Has Expanded Voting Rights

by Statute in Other Circumstances

A statutory precedent also supports the conclusion that the D.C. House

Voting Rights Act is constitutional. The Uniformed and Overseas Citi-

zens Absentee Voting Act (“UOCAVA”), 42 U.S.C. § 1973ff et seq.,

“extends federal voting rights to U.S. citizens formerly citizens of a State

who reside outside the United States.” Romeu v. Cohen, 235 F.3d 118,

120 (2d Cir. 2001). UOCAVA applies even to voters who have no plans

to return to their former states, do not pay taxes in their former states, and

have no residence in their former states. Although the statute permits

these voters to vote absentee in their former states, rather than allowing

them to vote as part of a non-state entity, the fact remains that these voters

would be disenfranchised under a narrow reading of Article I.

Under a literalist reading, because they are no longer citizens of a state,

they would not have “the Qualifications requisite for Electors of the most

numerous Branch of the State Legislature.” U.S. Const. art. I, § 2, cl. 1;

see Dinh & Charnes at 18.

III. Arguments Against the Constitutionality of

the D.C. House Voting Rights Act of 2009

The Office of Legal Counsel (“OLC”) recently submitted to the Office

of Management & Budget its conclusion that the D.C. House Voting

Rights Act of 2009 is unconstitutional, and has provided me with a thor-

ough explanation of the basis for its constitutional conclusion. In reaching

this conclusion, the Office of Legal Counsel remained consistent with two

recent, prior opinions offered by the Office. See D.C. Voting Rights Act,

31 Op. O.L.C. at 147 (“S. 1257 violates the Constitution’s provisions

governing the composition and election of the United States Congress.”);

E-mail for Velma Taylor, Office of Legislative Affairs, from Michelle

Boardman, Deputy Assistant Attorney General, Office of Legal Counsel,

Re: HR. 5388, the District of Columbia Fair and Equal House Voting

Rights Act of 2006 (May 22, 2006) (“We conclude that the creation of a

District of Columbia seat by this legislation is unconstitutional. Member-

ship in the House of Representatives is limited to representatives elected

48

Constitutionality of the D.C. House Voting Rights Act of 2009

by the people of the several States, and the District of Columbia is not a

State.”). 5 The Office of Legal Counsel rests its argument on the constitu-

tional text of the Composition Clause, as well as related historical evi-

dence and judicial authority, and disputes the argument that the District

Clause affords Congress sufficient authority to extend congressional

voting rights to the District of Columbia by ordinary legislation.

Although I have reached the conclusion that the balance of arguments

tips slightly in favor of the constitutionality of the D.C. House Voting

Rights Act, I remain mindful of the substantial constitutional arguments

that have been advanced against the proposed legislation, including those

offered by the Office of Legal Counsel. Consequently, while, for the

reasons explained above, it is my view that the fundamental importance of

the right to representation in our constitutional scheme tips the scales in

favor of the proposed legislation in this exceptional case, I believe it is

important that any decision-maker be aware of the weighty constitutional

arguments on the other side. This is particularly so given the substantial

litigation risks that this constitutional uncertainty creates. Accordingly, I

will provide a brief summary of the views that have been advanced

against the constitutionality of the statute, including the principal argu-

ments advanced by the Office of Legal Counsel. 6

5 Although Congress had not sought to give the District voting representation by ordi-

nary legislation until recently, OLC also points to its analysis of related questions as

further support for OLC’s longstanding view. See, e.g., Letter for Benjamin Zelenko,

Committee on the Judiciary, House of Representatives, from Martin F. Richman, Acting

Assistant Attorney General, Office of Legal Counsel (Aug. 11, 1967) (explaining that

“provisions for elections of Senators and Representatives in the Constitution are stated

in terms of the States, and the District of Columbia is not a State”); Memorandum for

Warren Christopher, Deputy Attorney General, from Frank M. Wozencraft, Assistant

Attorney General, Office of Legal Counsel, Re: Budget, Economic, and State of the Union

Messages (Oct. 16. 1968) (same); District of Columbia Representation in Congress:

Hearing on S.J. Res. 65 Before the Subcomm. on the Constitution of the S. Comm. on the

Judiciary, 95th Cong. 16–29 (1978) (testimony of John M. Harmon, Assistant Attorney

General, Office of Legal Counsel) (stating that, “[i]f the District is not to be a state, then

an amendment [to the Constitution] is required” to give the District voting representation

in Congress, as “we do not believe that the word ‘state’ as used in Article I can fairly be

construed to include the District under any theory of ‘nominal statehood’”).

6 OLC prepared a thorough written analysis delineating its views regarding the consti-

tutionality of the proposed legislation. My summary of the arguments that have been

advanced against the constitutionality of the legislation here does not purport to be a full

49

33 Op. O.L.C. 38 (2009) (Holder, Att’y Gen.)

Those who argue against the constitutionality of the legislation primari-

ly advance the following arguments:

A. The Text of the Composition Clause Is Clear

To proponents of the view that the legislation is unconstitutional, in-

cluding OLC, the key constitutional provision is the Composition Clause,

which governs the membership of the House of Representatives. The

Clause provides: “The 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. From their perspective, the language itself clearly

limits the right to choose “members” of the House to people from states,

and that nothing in the text of the Composition Clause indicates that the

people of an entity other than a state may do so. Supporters of this view

urge that the reference to “the people” in the Clause is best read to under-

score that members of the House would be selected by popular vote

within “the several states” whereas members of the Senate would be

selected (prior to the adoption of the 17th Amendment) by state legisla-

tures. It is this critical distinction that underlies the familiar description of

the House of Representatives as “the people’s house.” 7

catalogue of the issues raised in OLC’s analysis, but rather reflects what I understand to

be key points raised by those who argue against the constitutionality of the statute. I am

happy to provide OLC’s full written analysis in the event that you or other decision-

makers are interested.

7 This line of reasoning is underscored by other provisions of the Composition Clause.

Immediately after providing that members of the House shall be chosen by “the people of

the several States,” the Clause directs that the electors in House elections “shall have the

Qualifications requisite for Electors of the most numerous Branch of the State Legisla-

ture.” U.S. Const. art. I, § 2, cl. 1. (emphasis added). “[F]or most of its history,” however,

“the District of Columbia has had nothing that could even roughly be characterized as a

legislature for the entire District.” Adams, 90 F. Supp. 3d at 47; see also id. at 49 (“The

impossibility of treating Congress as the legislature under that clause is manifest, as doing

so would mean that Congress would itself choose the District’s senators.”). Likewise, the

same section of Article I provides: “When vacancies happen in the representation from

any State, the executive authority thereof shall issue writs of election to f ill such vacan-

cies.” As the Adams court explained, this provision would be anomalous as applied to the

District. Leaving aside the fact that the Mayor of the District is a relatively recent office,

50

Constitutionality of the D.C. House Voting Rights Act of 2009

B. Historical Evidence and More Recent Practice

Support This View

This conclusion is reinforced by pointing to evidence that the Framers

regarded states as uniquely important components of the federal constitu-

tional structure. See Adams, 90 F. Supp. at 56 (“The Constitution’s re-

peated references to states . . . are reflections of the Great Compromise

forged to ensure the Constitution’s ratification. There is simply no evi-

dence that the Framers intended that not only citizens of states, but un-

specified others as well, would share in the congressional franchise.”).

Likewise, those who find the legislation unconstitutional contend that the

evidence from founding-era history supports the conclusion that Congress

may not give the District voting representation in the House without

making the District a state. See generally Adams, 90 F. Supp. 2d at 50–53.

The District was created to serve the distinct purpose of protecting the

national government and its institutions. That particular purpose—

maintaining the nation’s capital as a non-state entity—obviously does

not require that the District be denied voting representation in Congress.

See, e.g., Raven-Hansen, Congressional Representation for the District of

Columbia, 12 Harv. J. on Legis. at 184. But opponents of the proposed

legislation, including OLC, contend that Founding-era statements address-

ing the voting rights of residents of such a district—including statements

“it is Congress that is the ultimate executive authority for the District.” Id. at 49. And

“[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 f lexible than it appears

to be.” Id.; see also U.S. Const. art. I, § 2, cl. 2 (“No person shall be a Representative . . .

who shall not, when elected, be an inhabitant of that State in which he shall be chosen.”)

(emphasis added). The repeated textual references to “states” or “state” in this Clause,

when combined with the numerous constitutional provisions relating to federal elections

that similarly restrict voting to “states” and their people, are presented as a clear intention

to exclude non-state entities, such as the District, unless the Constitution expressly

provides otherwise. See U.S. Const. amend. XXIII, § 1 (The District “shall appoint . . . [a]

number of electors of President and Vice President equal to the whole number of Senators

and Representatives in Congress to which the District would be entitled if it were a State,

but in no event more than the least populous State; they shall be in addition to those

appointed by the States, but they shall be considered, for the purposes of the election of

President and Vice President, to be electors appointed by a State; and they shall meet in

the District and perform such duties as provided by the twelfth article of amendment.”

(emphasis added)).

51

33 Op. O.L.C. 38 (2009) (Holder, Att’y Gen.)

from prospective district residents themselves—clearly reveal an under-

standing that citizens of the District would have no right to vote in nation-

al elections, as they were not residents of a state. 8

Likewise, proponents argue that subsequent historical practice and the

resultant constitutional structure further confirm this view. For instance,

some suggest that the ratification of the Twenty-Third Amendment,

ratified in 1961—which provides that the District “shall appoint . . . [a]

number of electors of President and Vice President equal to the whole

number of Senators and Representatives in Congress to which the District

would be entitled if it were a State, but in no event more than the least

populous State; they shall be in addition to those appointed by the States,

but they shall be considered, for the purposes of the election of President

and Vice President, to be electors appointed by a State; and they shall

meet in the District and perform such duties as provided by the twelfth

article of amendment” (emphasis added) —provides further support for

this view, as this text would serve no purpose if the District were already

8 See, e.g., 10 Annals of Cong. 991, 998–99 (1801) (remarks of Rep. Dennis) (stating

that because of District residents’ “contiguity to, and residence among the members of

[Congress],” “though they might not be represented in the national body, their voice

would be heard. But if it should be necessary [that they be represented], the Constitution

might be so altered as to give them a delegate to the General Legislature when their

numbers should become sufficient”); id. at 992 (remarks of Rep. Bird) (assigning “blame”

for disenfranchisement of District residents to “the men who framed the Constitutional

provision, who peculiarly set apart this as a District under the national safeguard and

Government”); 5 The Papers of Alexander Hamilton 189–90 (Harold C. Syrett ed., 1962)

(reprinting text of subsequently rejected amendment proposed by Alexander Hamilton

during the New York ratifying convention: “That When the Number of Persons in the

District of Territory to be laid out for the Seat of the Government of the United States,

shall according to the Rule for the Apportionment of Representatives and Direct Taxes

Amount to [left blank] such District shall cease to be parcel of the State granting the

Same, and Provision shall be made by Congress for their having a District Representa-

tion in that Body.” (emphasis added)); see also 12 Annals of Cong. 487 (1803) (remarks

of Rep. Smilie) (“Under the exercise of exclusive jurisdiction the citizens are deprived of

all political rights, nor can we confer them.”); 5 The Documentary History of the Ratifica-

tion of the Constitution 621 (Merrill Jensen, John P. Kaminski & Gaspare J. Saladino eds.,

1976) (statement by Samuel Osgood, a delegate to the Massachusetts ratifying conven-

tion, that he could accept the Seat of Government provision only if it were amended to

provide that the District be “represented in the lower House,” though no such amendment

was ultimately included in the amendments recommended by the Massachusetts conven-

tion); see generally Adams, 90 F. Supp. 2d at 51–53 (recounting this history).

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Constitutionality of the D.C. House Voting Rights Act of 2009

a state for purposes of constitutional provisions governing federal elec-

tions. Even if this amendment is not conclusive regarding the meaning of

Article I, some, including OLC, contend that fidelity to constitutional

structure now requires factoring this amendment into the interpretation of

Article I.

C. Judicial Precedent Supports This View

Proponents of this view also argue that recent judicial authority affirms

this same conclusion, and point to Adams, which relied on similar evi-

dence from text, history, and precedent to conclude that the District of

Columbia is not a “state” within the meaning of the Composition Clause.

90 F. Supp. 2d at 55–56 (“In sum, we conclude that constitutional text,

history, and judicial precedent bar us from accepting plaintiffs’ contention

that the District of Columbia may be considered a state for purposes of

congressional representation under Article I.”). That decision was sum-

marily affirmed by the Supreme Court. 531 U.S. 941 (2000); see also

Hicks v. Miranda, 422 U.S. 332, 344–45 (1975) (summary affirmance is a

precedential ruling on the merits).

D. The District Clause Provides Only Limited

Authority to Congress

This argument rejects the notion that the District Clause might provide

support for the legislation, concluding that such direct reliance on Con-

gress’s authority under the District Clause to support District voting

representation in the House is not persuasive. Its proponents acknowledge

that the District Clause gives Congress broad power to provide for the

governance of the District, but contend that what this means is simply that

Congress has “all legislative powers that the legislature of a state might

exercise within the state.” Capital Traction Co. v. Hof, 174 U.S. 1, 5

(1899). As courts have stressed, Congress’s broad power to provide for

the governance of the District does not give it the authority to “contravene

any provision of the Constitution.” Palmore v. United States, 411 U.S.

389, 397 (1973) (quoting Hof , 174 U.S. at 5); accord Keller v. Potomac

Elec. Co., 261 U.S. 428, 443–44 (1923); see also Neild v. Dist. of Colum-

bia, 110 F.2d 246, 249 (D.C. Cir. 1984) (“Subject only to those prohibi-

tions of the Constitution which act directly or by implication upon the

53

33 Op. O.L.C. 38 (2009) (Holder, Att’y Gen.)

federal government, Congress possesses full and unlimited jurisdiction to

provide for the general welfare of citizens within the District of Columbia

by any and every act of legislation which it may deem conducive to that

end.”) (emphasis added). Consequently, from this perspective, the District

Clause does not afford Congress the opportunity to override the require-

ments of the Composition Clause, nor can the Composition Clause rea-

sonably be read to permit Congress to treat the District as a “state” for

purposes of representation in the House through legislation. Indeed, some

argue that, if it could be so read, there would be no principled basis for

concluding that Congress could not, by statute, give territories voting

representation in the House as well.

E. Tidewater Transfer Does Not Support a Contrary Conclusion

Those who argue that the proposed legislation is unconstitutional, in-

cluding OLC, contest the reliance of proponents of the pending legislation

on National Mutual Insurance Co. v. Tidewater Transfer Co., 337 U.S.

582 (1949). That case held that Congress may give Article III courts

jurisdiction over suits brought by citizens of the District of Columbia

against citizens of the several states, even though Article III expressly

confers diversity jurisdiction only over cases involving residents of

“states.” However, opponents argue that the fractured decision in Tide-

water Transfer is not persuasive authority for the proposition that Con-

gress may enact legislation that treats the District of Columbia a “state”

for purposes of the Composition Clause for at least two reasons. First, the

holding that Congress could, through legislation, provide that the District

should be treated as a state for purposes of Article III diversity jurisdic-

tion was in a plurality opinion that had the support of only three justices

and should not be given precedential effect. Second, even if the opinion

were given some precedential effect, opponents argue that, unlike the

decision to extend Article III diversity jurisdiction to cases involving the

District, the decision to treat the District as a state for purposes of the

Composition Clause would improperly disturb the balance between the

Union and the several states struck in the Constitution, and would there-

fore exceed the limit Justice Jackson presented in Tidewater Transfer.

54

Constitutionality of the D.C. House Voting Rights Act of 2009

F. Strong Policy Reasons for Extending Congressional

Voting Rights Do Not Provide a Basis for

Overriding Clear Constitutional Text

Some proponents of the view that this legislation is unconstitutional,

including OLC, acknowledge the strong policy considerations that have

been advanced in support of the extension of congressional voting rights

to citizens of the District, noting that there is no denying the force of

the considerations in favor of enfranchising District residents. See, e.g.,

Loughborough v. Blake, 18 U.S. 317, 324 (1820) (conceding that “in

theory it might be more congenial to the spirit of our institutions to admit

a representative from the district,” but omitting any suggestion that Con-

gress might provide such representation by simple legislation); Adams, 90

F. Supp. 2d at 66 (“We do not disagree that defendants have failed to

offer a compelling justification for denying District residents the right to

vote in Congress.”). As important as these constitutional purposes are,

however, they nevertheless argue that the fact that the plain terms of the

Composition Clause give the people of the states, and only those electors,

the right to choose House members is not surprising or at odds with the

central purposes of the founding charter. Likewise, some, including OLC,

recognize the arguments that these policy considerations are implicit in

the constitutional structure and that, in consequence, Congress should be

assumed to have the authority to enact the pending legislation unless the

Constitution clearly prohibits it. OLC’s view, however, is that this pro-

posed legislation would be unconstitutional even if such a clear statement

rule were appropriate in this context.

* * * * *

In sum, those who find the proposed legislation unconstitutional, in-

cluding OLC, conclude that Congress may not by statute give the District

of Columbia voting representation in the House. From this perspective,

the relevant constitutional text, original understanding, historical practice,

and judicial precedent all clearly support the proposition that the District

is not a “state” within the meaning of the Composition Clause. Even

acknowledging that the District Clause gives Congress broad power to

legislate for the District, proponents of this view contend that the District

55

33 Op. O.L.C. 38 (2009) (Holder, Att’y Gen.)

Clause does not permit Congress to override the prescriptions of the

Composition Clause.

III. Conclusion

I have concluded that, in this exceptional case, although the question

is exceedingly close, my views are different than those offered by the

Office of Legal Counsel. For the reasons outlined in Part II above, I

believe that, for each of these constitutional points, there are sufficient

rejoinders to, at a minimum, place the answer to the constitutional ques-

tion in doubt. In my view, the arguments of those who find the proposed

legislation unconstitutional, including OLC’s analysis, identify no clearly

controlling constitutional text or squarely on-point precedent. What is at

stake in this legislation is whether the more than half-a-million residents

of our Nation’s capital, who pay taxes, serve in the Armed Forces, and sit

on federal juries like other Americans, have what the Supreme Court has

referred to as the most fundamental of political rights, the franchise. See

Wesberry v. Sanders, 376 U.S. 1, 17–18 (1964) (“No right is more pre-

cious 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 under-

mined.”); Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886) (“[T]he political

franchise of voting . . . is regarded as a fundamental political right, be-

cause preservative of all rights”). In those circumstances, and in the

absence of clear constitutional authority to the contrary, it is my view that

we must give weight to the animating purposes of the Constitution—and

in particular its fundamental elevation of democracy and the right to

vote—and therefore I conclude that the balance tips in favor of the consti-

tutionality of the proposed legislation.

ERIC H. HOLDER, JR.

Attorney General

56

Assistance of Counsel in Removal Proceedings ( II )

The Attorney General’s decision in Matter of Compean, Bangaly & J-E-C-, 24 I. & N.

Dec. 710 (Att’y Gen. 2009); Assistance of Counsel in Removal Proceedings ( I ), 33

Op. O.L.C. 1 (2009) (Mukasey, Att’y Gen.), is vacated.

The Acting Director of the Executive Office for Immigration Review shall initiate

rulemaking procedures as soon as practicable to evaluate the pre-Compean framework

for reviewing claims of ineffective assistance of counsel in deportation proceedings

and to determine what modifications should be proposed for public consideration.

Pending the issuance of a final rule, the Board of Immigration Appeals and Immigration

Judges should apply the pre-Compean standards to all pending and future motions to

reopen removal proceedings based upon ineffective assistance of counsel.

June 3, 2009

OPINION IN REMOVAL PROCEEDINGS

MATTER OF ENRIQUE SALAS COMPEAN, RESPONDENT

MATTER OF SYLLA BANGALY, RESPONDENT

MATTER OF J-E-C-, ET AL., RESPONDENTS

On January 7, 2009, Attorney General Mukasey overruled in part the

decisions of the Board of Immigration Appeals (“Board”) in Matter of

Lozada, 19 I. & N. Dec. 637 (BIA 1988), and Matter of Assaad, 23 I. & N.

Dec. 553 (BIA 2003), and affirmed the Board’s orders denying reopening

in Matter of Compean, A078 566 977 (BIA May 20, 2008), Matter of

Bangaly, A078 555 848 (BIA Mar. 7, 2008), and Matter of J-E-C- (BIA

Apr. 8, 2008). See Matter of Compean, Bangaly & J-E-C-, 24 I. & N.

Dec. 710 (Att’y Gen. 2009) (“Compean”); Assistance of Counsel in Re-

moval Proceedings ( I ), 33 Op. O.L.C. 1 (2009) (Mukasey, Att’y Gen.).

In Lozada, the Board established the procedural requirements for filing

a motion to reopen deportation (now removal) proceedings based upon a

claim of ineffective assistance of counsel and required the alien to show

that he was prejudiced by the action or inaction of his counsel. Lozada, 19

I. & N. Dec. at 639–40. The Compean decision acknowledged that the

Lozada framework had “largely stood the test of time,” having been

expressly reaffirmed by the Board fifteen years after its initial adoption.

Compean, 24 I. & N. Dec. at 731; see also Assaad, 23 I. & N. Dec. at 556–

57 (affirming the application of Lozada to removal proceedings). None-

theless, Compean both rejected Lozada’s constitutional reasoning and

57

33 Op. O.L.C. 57 (2009) (Holder, Att’y Gen.)

ordered the Board not to rely upon the Lozada framework, even as a

discretionary matter. Instead, Compean set forth, as an exercise of the

Attorney General’s administrative discretion, a new substantive and

procedural framework for reviewing all such claims and a formulation of

the prejudice showing different from that followed by many courts, de-

spite the limited discussion of the Lozada framework in the briefs submit-

ted in Compean by the parties and amici curiae. Compean further provid-

ed that this new administrative framework should apply “henceforth,”

even though the decision acknowledged it might conflict with the Loza-

da-based approach taken by a number of federal courts of appeals. See

Compean, 24 I. & N. Dec. at 730 & n.8.

For the reasons stated herein, I have determined that it is appropriate to

reconsider the January 7, 2009 decision.

Establishing an appropriate framework for reviewing motions to reopen

immigration proceedings based on claims of ineffective assistance of

counsel is a matter of great importance. I do not believe that the process

used in Compean resulted in a thorough consideration of the issues in-

volved, particularly for a decision that implemented a new, complex

framework in place of a well-established and longstanding practice that

had been reaffirmed by the Board in 2003 after careful consideration. The

preferable administrative process for reforming the Lozada framework

is one that affords all interested parties a full and fair opportunity to

participate and ensures that the relevant facts and analysis are collected

and evaluated.

Accordingly, I direct the Acting Director of the Executive Office for

Immigration Review to initiate rulemaking procedures as soon as practi-

cable to evaluate the Lozada framework and to determine what modifica-

tions should be proposed for public consideration. After soliciting infor-

mation and public comment, through publication of a proposed rule in the

Federal Register, from all interested persons on a revised framework for

reviewing claims of ineffective assistance of counsel in immigration

proceedings, the Department of Justice may, if appropriate, proceed with

the publication of a final rule.

In Compean, the introduction of a new procedural framework depended

in part on Attorney General Mukasey’s conclusion that there is no consti-

tutional right to effective assistance of counsel in removal proceedings.

Because that conclusion is not necessary either to decide these cases

58

Assistance of Counsel in Removal Proceedings ( II )

under pre-Compean standards or to initiate a rulemaking process, this

Order vacates Compean in its entirety. To ensure that there is an estab-

lished framework in place pending the issuance of a final rule, the Board

and Immigration Judges should apply the pre-Compean standards to all

pending and future motions to reopen based upon ineffective assistance of

counsel, regardless of when such motions were filed. The litigating posi-

tions of the Department of Justice will remain unaffected by this Order.

Finally, prior to Compean, the Board itself had not resolved whether its

discretion to reopen removal proceedings includes the power to consider

claims of ineffective assistance of counsel based on conduct of counsel

that occurred after a final order of removal had been entered. Given the

absence of a pre-Compean standard of the Board to apply pending issu-

ance of a final rule, I resolve the question in the interim by concluding

that the Board does have this discretion, and I leave it to the Board to

determine the scope of such discretion.

Turning to the merits of the particular cases at issue, I find that, for the

reasons stated by the Board, its orders denying reopening of the three

matters reviewed in Compean were appropriate under the Lozada frame-

work and standards as established by the Board before Compean. On that

basis, I concur with Attorney General Mukasey’s decision to affirm the

Board’s decisions denying reopening of these matters. Compean, 24

I. & N. Dec. at 743.

ERIC H. HOLDER, JR.

Attorney General

59