United States v. Jeffrey I. Cohen

WILKEY, Circuit Judge, concurring:

I concur in Judge Scalia’s scholarly analysis for the court. I write only to call attention to a different and simpler analy *140 sis of the situation confronting Congress which supports the result reached.

Congress was presented here with a situation where no matter which choice it made, there would be a possible claim of denial of equal protection, and each alternative claim would appear to be of equal stature. If Congress had chosen to make the insanity procedure uniform throughout the federal courts in all 51 jurisdictions, as the appellant contends should have been done here, then Congress would have given all defendants in the federal courts equal protection, but it would have created a difference in the protection accorded law violators in the District of Columbia, depending on whether they fell into the hands of the District or the United States court system. On the other hand, if Congress acted as it did, making a rule for the federal courts in the District of Columbia which is consistent with that of the local court system of the District of Columbia, so that law violators in the District of Columbia are treated identically no matter into which court system they may fall, then Congress arguably created a denial of equal protection between defendants in the federal courts in the District of Columbia and defendants in the federal courts of the 50 states.

Congress chose to do the latter, and I think its choice should be upheld.

First, Congress previously faced exactly the same dilemma, and made the same choice, when considering the Assimilative Crimes Act, 1 which has been upheld as constitutional. 2 By passing the Assimilative Crimes Act Congress decreed that defendants in a federal court brought there by reason of crimes committed on a federal enclave would be treated the same as defendants accused of the same crime brought into the courts of the state in which the enclave is located. There are many state crimes which are not ordinarily federal offenses, but which are made federal offenses if committed on federal reservations. The Assimilative Crimes Act incorporates the state procedure, bail, penalties, and felony/misdemeanor classifications of, for example, New Mexico, into federal trials for crimes committed on federal reservations in New Mexico. Similarly, the penalties, etc., for crimes on a Government reservation in Alaska are made the same as for those crimes committed elsewhere in Alaska and brought before an Alaska state court. This has the result of affording intrastate equal treatment to offenders in New Mexico or in Alaska, but creates an interstate difference between offenders brought into the federal courts in New Mexico and Alaska, since the Assimilative Crimes Act incorporates divergent state statutes.

The choice Congress made thus assured equality of treatment among all of the offenders in New Mexico and among all of the offenders in Alaska, although there will be a difference between the laws applicable in the two states when offenders are brought before a United States district court in each state. Congress could have said that for all federal reservations throughout the land there would be a uniform common law crime system governing criminal activities on Government reservations, and thus insured uniform and equal treatment for all defendants in all federal courts in 51 jurisdictions, but Congress did not choose to do this. Its choice has been upheld and it is analytically indistinguishable from the choice with which we are confronted in the District of Columbia— federal court uniformity or territorial uniformity, Congress having chosen the latter.

Second, the fact that Congress made this choice and that it should be upheld is reinforced by the recognized extraordinary and plenary power which Congress is given over the District of Columbia. This enables Congress to do many things in the District of Columbia which it has no au *141 thority to do in the 50 states. 3 There has never been any rule of law that Congress must treat people in the District of Columbia exactly the same as people are treated in the various states. For example, it has never been argued that the criminal provisions of the District of Columbia Code should govern the federal enclaves now regulated by the Assimilative Crimes Act.

A third reason for supporting Congress’ choice is that it is only in the District of Columbia that Congress has the responsibility over the treatment of insane people. In other jurisdictions the problem of insanity is entirely a state concern. The unique responsibility of Congress for the problem of insanity in the District of Columbia means that Congress should have a variety of options to deal with the problem. There is no reason why a court should say that the choice of any one of them denies equal protection to defendants in the District of Columbia just because the choice is different from that made in the 50 states. Actually, almost anything that Congress chose to do here would be somewhat different from the process employed in many of the states. Variation among the 51 jurisdictions would be inevitable.

In the treatment of the insanity problem, as in dealing with many other problems, there may be differences throughout our vast land, but the differences found here do not rise to the level of a violation of the equal protection guarantee of the Constitution.

MIKVA, Circuit Judge, concurring in the judgment, with whom SPOTTSWOOD W. ROBINSON, III, Chief Judge, and J. SKELLY WRIGHT, Circuit Judge, join:

Easy cases, no less than hard ones, can produce bad law. I am concerned that today’s majority opinion, perhaps in reaction to what I now acknowledge was an overly hasty analysis by the panel that initially decided this case, will have precisely such an effect. All of us now agree that Cohen’s commitment was carried out in accordance with the strictures of the equal protection clause. But in the rush to reach this conclusion, the majority transforms Congress’ “plenary power” over the District of Columbia into a talisman that gives Congress carte blanche to treat District inhabitants as appropriate specimens for all sorts of experimental national legislation. I recognize that, under many circumstances, Congress can single out the District of Columbia for distinct treatment, but Congress is not, as the majority apparently would have it, empowered under all circumstances to impose more severe burdens on the rights of District of Columbia inhabitants merely because they inhabit the District. Such a tautological reading of the Fifth Amendment’s equal protection component is compelled neither by existing precedent nor common sense: Congress can legislate uniquely with respect to District inhabitants when it exercises its powers as local sovereign, see U.S. Const, art. I, § 8, cl. 17, but Congress ought not to be able to single out inhabitants of the District for distinct national treatment without some sufficient justifying basis. Incantation of the words “plenary power” does not ex proprio vigore provide that basis. To attempt to provide an elaboration of the circumstances under which I think Congress can legitimately single out the District for distinct treatment, I write separately.

I.

Jurisdictionally-based equal protection challenges to legislation uniquely applicable to the District of Columbia may pose difficult analytic problems in light of the dual crowns that Congress wears here. The essential framework for analysis, however, is relatively straightforward. When Congress acts in its capacity as local sovereign, as I believe it has in this case, the fact that individuals outside the District of Columbia receive different treatment from *142 their state legislatures ought to be constitutionally irrelevant. Individuals within and without the District of Columbia are not similarly situated with respect to congressional legislation enacted in Congress’ role as local sovereign. When Congress acts as a national legislative body, however, it has no greater constitutional power to exempt the District of Columbia from truly federal legislation, or to impose a unique federal standard on the District, than it does similarly to single out any particular state for distinct treatment under a federal statutory scheme; only if the differential treatment is sufficiently traceable to disparate conditions in the isolated jurisdiction should that treatment be constitutionally permissible.

This framework will of course not be easy to apply in all cases, for congressional action respecting the District of Columbia cannot always neatly be categorized as “local” or “national”. Nonetheless, such a framework ought to provide the starting point for analysis of cases such as this one: when a state legislature could, consistent with federal law, impose the same rule in its state that Congress has imposed in the District, Congress’ action ought to be immune from equal protection attack. If such a course is instead closed to the states, either because an affirmative federal rule governs an area or because federal law preempts any state action in that area, a uniform federal rule ought presumptively to apply nationwide. That presumption, in my view, should invoke the equal protection component of the Fifth Amendment. With this skeletal framework set forth, I turn to the facts of this case.

II.

The statutory scheme being challenged in this case consists of two independent elements. The first is the decision to criminalize certain conduct as a matter of federal law. That decision is codified in the provision under which Cohen was charged. See 26 U.S.C. § 5861 (d) (1982) (possession of unregistered destructive devices). The second is the decision to leave to the states the question of how to deal with individuals who have been absolved, by reason of insanity, of criminal liability for that conduct. This decision is reflected in Congress’ failure to enact a federal commitment statute, in the express reasons given for that refusal, which include the desire to leave commitment to the states, Maj. Op. at 137-38, and in the presumption that state law generally remains in place in areas in which Congress has not expressed a clear and manifest purpose to preempt it. See, e.g., Ray v. Atlantic Richfield Co., 435 U.S. 151, 157 , 98 S.Ct. 988, 994 , 55 L.Ed.2d 179 (1978).

It is within this hybrid scheme that 24 D.C.Code § 301 must be assayed. In enacting Section 301, Congress was implementing in the District of Columbia the second element in this hybrid statutory scheme; faced with the “gap” in federal law under which federal insanity acquittees are not automatically confined to mental institutions, Congress, in its capacity as local sovereign for the District, chose to require that District insanity acquittees be automatically committed. Any state legislature could have done likewise with respect to federal defendants acquitted by reason of insanity in that state. (It is true that Congress, in enacting Section 301, took one step not available to a state legislature: Congress mandated that Article III courts in the District employ the special verdict of not guilty by reason of insanity. This fact does not have any constitutional relevance. See infra pp. 147-48). As a result, if Congress’ initial choice to create such a bifurcated statutory scheme — in which certain activity is made a federal crime but in which treatment for those incapable of being held criminally responsible for that activity is left to the states— is constitutionally permissible, Section 301 must per force survive equal protection attack, for Congress is the “local” legislative body that must implement such a choice in the District of Columbia.

Distilled to its essence, Cohen’s dispute is thus not with Section 301 itself but rather with the constitutionality of the policy deci *143 sion to leave to the states the treatment of federal criminal defendants who have been acquitted by reason of insanity. The gravamen of his claim is that, once Congress acknowledges the presence of a federal interest in some area by legislating in that domain, the rights and responsibilities which devolve from that legislation must be similarly federalized. Having decided to define certain activity as criminal, Congress and Congress alone, according to Cohen, is empowered to prescribe the substantive and procedural nature of, inter alia, the punishments and defenses entailed in the application of such a statute.

That is simply not the law. Congress often determines that federal interests warrant defining certain activity as a federal crime, but then leaves to the states the task of filing the interstices of that cause of action. As Judge Wilkey points out in concurrence, that is the theory underlying the Assimilative Crimes Act, 18 U.S.C. § 13 (1982), in which crimes on federal enclaves are defined by reference to state law. See United States v. Sharpnack, 355 U.S. 286 , 78 S.Ct. 291 , 2 L.Ed.2d 282 (1958) (upholding the Act against delegation challenge). It is also the approach taken in the recent Racketeer Influenced and Corrupt Organization Act (RICO), 18 U.S.C. §§ 1961-1968 (1982), which defines “racketeering activity” as acts or threats involving particular state law crimes. Id. § 1961(1)(A) (1982). This longstanding technique of predicating federal offenses on state law was endorsed by the Supreme Court as early as Clark Distilling Co. v. Western Maryland Ry. Co., 242 U.S. 311 , 37 S.Ct. 180 , 61 L.Ed. 326 (1917) (upholding Act criminalizing shipment of intoxicating liquor into a state to be used in violation of that state’s law).

Such a “piggy-back” practice is also pervasive in a myriad of civil contexts. Congress frequently has drawn upon state law to help define federal rights, and the Supreme Court implicitly has endorsed that approach many times. The Federal Wrongful Death Act creates a federal cause of action for wrongful death occurring on federal property, but leaves to state law the substantive elements of that cause of action. 16 U.S.C. § 457 (1982). A similar parasitic relationship of federal to state law is codified in the Death on the High Seas Act, 46 U.S.C. § 762 (1976), and in the Federal Tort Claims Act, 28 U.S.C. § 1346 (b) (1982), see Richards v. United States, 369 U.S. 1 , 82 S.Ct. 585 , 7 L.Ed.2d 492 (1962). Federal law often builds upon legal relationships established by state law, especially in areas, like family relations or the treatment of the mentally ill, where the states have traditionally exercised primary control. See generally P. Bator, P. Mishkin, D. Shapiro & H. Wechsler, Hart and Wechsler’s The Federal Courts and the Federal System 470-71 (2d ed. 1973). As these examples attest, congressional enactment of threshold legislation in an area of important individual interests does not violate equal protection principles merely because state law has been left to fill in the details of such a statutory scheme.

The short answer to Cohen’s challenge, then, is that a strong federal interest exists in a cooperative federalism that leaves a variety of “federal” issues to be handled by the states. Cf. Hodel v. Virginia Surface Mining & Reclamation Ass’n, 452 U.S. 264, 290 , 101 S.Ct. 2352, 2367 , 69 L.Ed.2d 1 (1981) (“We fail to see why the Surface Mining Act should become constitutionally suspect simply because Congress chose to allow the states a regulatory role.”). Indeed, this interest is so strong that I can think of no case in which such a scheme would violate equal protection principles. As an extreme example, Congress might define the intentional and premeditated killing of a federal officer to be a federal crime, but then mandate that state homicide statutes govern the punishment of that crime. If Congress, in its capacity as local sovereign, enacted the death penalty in the District of Columbia for local murders, the fact that the federal crime of murdering a federal officer could then be punished by death in the District but only by life imprisonment in a state like Wisconsin, would not, in my mind, transgress the equal protection component of the Fifth Amendment. That would be so even were *144 the court prepared to characterize the statutes as impinging upon fundamental rights; the structure of American government will virtually always yield an overriding governmental interest for a congressional decision to leave states with control over issues within an area that is otherwise fraught with federal concerns. See United States v. Sharpnack, supra. When Congress leaves an area to be governed by the states, that, for equal protection purposes, should be the end of the matter.

A straighter path leads to the same conclusion. The equal protection clause directs that “all persons similarly circumstanced shall be treated alike.” F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 , 40 S.Ct. 560, 562 , 64 L.Ed. 989 (1920). But “[t]he Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.” Tigner v. Texas, 310 U.S. 141, 147 , 60 S.Ct. 879, 882 , 84 L.Ed. 1124 (1940). When Congress exercises its powers as local sovereign for the District of Columbia, the fact that other state legislatures may treat the same problem in a different way is constitutionally irrelevant for equal protection purposes; just as residents of Virginia and Maryland are not similarly situated with respect to their state legislatures, so too residents of the District of Columbia cannot be compared to non-District residents when Congress acts in its capacity as local sovereign for the District of Columbia. See generally Johnson v. United States, 225 U.S. 405, 417 , 32 S.Ct. 748, 752 , 56 L.Ed. 1142 (1912) (“There is certainly nothing anomalous in punishing the crime of murder differently in different jurisdictions. It is but the application of legislation to conditions.”). The equal protection clause is simply not called out by these circumstances.

There is no reason to alter that conclusion when, as in this case, Congress has acted as a local legislative body as the second step in a statutory scheme where Congress as the first step has worn its national hat in proscribing certain conduct for the entire country. District and non-District insanity acquittees are not similarly situated for commitment purposes, even when it is federal statutory law that defines their conduct as criminal and federal common law that provides their insanity defense, as long as Congress has chosen to leave to the states the procedural and substantive rules by which such acquittees are subsequently committed to mental institutions. Should a state desire to extend its mandatory commitment statute to those found not guilty of federal crimes by reason of insanity, I see no constitutional barrier to its doing so. The majority has chosen to avoid this issue. See Maj.Op. at 131 n. 8. I see no way to do so, however, for if the states are precluded by force of federal law from enacting automatic commitment statutes that reach federal insanity acquittees, Congress would in my mind confront substantial equal protection problems in enacting such a statute for only the District of Columbia. Since states have the power to commit automatically federal insanity acquittees, the fact that Congress enacted an automatic commitment statute for the District of Columbia is therefore no cause for equal-protection concern.

Had the majority rested at this point, I would not be writing. The majority opinion is so broadly drafted, however, that Congress is ceded virtually unfettered authority to single out District of Columbia inhabitants for disparate treatment under federal statutory schemes. Yet if it is correct that Congress violates no equal protection norm when it legislates for the District in an area where Congress as a general matter has left lawmaking power to the states, the obverse of that proposition, which the majority ignores, seems to me equally correct: serious equal protection problems may be raised when Congress chooses to enact a uniform, national rule of law and then exempts from the reach of that law the District of Columbia. When enacting national legislation, Congress has no greater power to shackle the District of Columbia with singular treatment than it does similarly to single out any one of the fifty states. In this regard, Congress’ “plenary power” over the District of Columbia is of *145 no constitutional moment; the District, like any state, may be singled out for distinct treatment, but only if jurisdictionally unique factual conditions warrant that distinction.

To return to the death-penalty hypothetical discussed above, suppose Congress now defines murder of a federal officer to be a federal crime and proscribes a penalty of 30-100 years imprisonment for that offense. If Congress were to engraft onto that statute a provision that provided the death penalty for the offense only for the District of Columbia, I would certainly have to pause before concluding that such selective treatment of the District were constitutional. In this hypothetical, unlike the present case, Congress has chosen to act nationally; in doing so, it has totally ousted the states from the area of punishment with respect to this particular federal offense. Having made that choice, Congress would have an extremely heavy burden in establishing that conditions in the District were sufficiently unique to warrant imposition of the death penalty only in that isolated jurisdiction. As a result, District and non-District inhabitants are presumptively similarly situated with respect to both the substantive rule of law and the punishment that attends violation of that law; unless the legislative classification is founded on actual factual conditions which are both peculiar to the District and sufficient to pass the appropriate equal protection standard, the disparate treatment of District inhabitants could not be sustained. In short, the fact that certain United States citizens live within the ten miles squared described so uniquely in the Constitution does not deprive them of the equal protection that their neighbors in Maryland and Virginia enjoy.

That, it seems to me, was precisely what Congress had attempted to do in United States v. Thompson, 452 F.2d 1333 (D.C. Cir.1971). There Congress had enacted a national Bail Reform Act applicable to all those convicted of federal offenses. In light of this fact, we refused to interpret the provisions of the local bail act to apply to federal offenses, for to do so would have led to a holding that the local bail act unconstitutionally discriminated against District offenders in an area of fundamental civil liberties: “The passage of such a law [as the National Bail Act] implies a threshold decision to override regional differences in favor of a uniform standard that will govern the entire country. If one small group is then excluded from the operational effect of the statute, the rationality of that exclusion is highly suspect.” Id. at 1339 .

There are two independent aspects to the result in Thompson ; these aspects must be separated if today’s decision and Thompson are to be reconciled. The first aspect of Thompson is the principle that Congress cannot single out any particular jurisdiction, including the District of Columbia, for distinct treatment under a national scheme without some rational basis. Id. at 1338 . Certainly national legislation imposing a unique rule on the District of Columbia must at the least be rationally related to the purposes of the legislation, and the fact that the legislation applies only within the District’s jurisdictional boundaries does not a fortiori provide such a rationale.

The second aspect of the result in Thompson is that jurisdictional distinctions regarding the District of Columbia are uniquely suspect, and hence “must be subjected to the strictest possible review,” id. at 1341 , in light of the fact that District residents have no vote in congressional elections. If these statements are taken to mean that District residents are a “suspect class” within the terminology of modern equal protection doctrine, and hence that national legislation uniquely applicable to the District can be justified only by a compelling governmental interest, I accept the majority’s position that the statements sweep too broadly. Nonetheless, it is arguable that courts ought to look more closely at legislation that seeks to isolate the District of Columbia from the sweep of national legislation than they look at legislation that singles out a particular state. If District residents do not fully constitute a “suspect class,” they nonetheless remain *146 less than fully enfranchised. Lacking actual or virtual legislative representation in the Congress, inhabitants of the District of Columbia are thus likely to be prime targets of “experimental” national legislation. That does not suggest that, when Congress acts in its capacity as local sovereign for the District, the resulting legislation ought to be subject to probing equal protection review; as argued above, such legislation ought to be completely immune from jurisdictionally-based equal protection attacks. It does suggest, however, that when Congress acts in its capacity as the national legislature, a separate and unequal legislative scheme for the District of Columbia ought to elicit some concern that invidious lines have been drawn precisely because of the national disenfranchisement of the groups affected by those lines. The majority today rejects the view that such a scheme must always be subject to strict scrutiny, but at least in my view, it remains true that equal protection doctrine ought to be applied to such a scheme with sensitivity to the unique and anomalous position of the District in our system of government. The principle of majority rule loses its moral force when not all the votes are counted. If the residents of the District do not need the parochial protection of elected representatives to the Congress to participate in the logrolling that protects one state from being overrun by the others, it is hard to understand why the framers fought so hard to assure that even the smallest state was allotted two senators and at least one voting representative.

Swain v. Pressley, 430 U.S. 372 , 97 S.Ct. 1224 , 51 L.Ed.2d 411 (1977), does not stand for a contrary proposition. In that case, Congress had acted in its capacity as local, rather than national, sovereign; as a result, state legislatures were left equally free to define local crimes, to require that such crimes be tried before state courts (which, of course, are not Article III courts), and to mandate that collateral relief from criminal convictions be pursued first in the state’s non-Article III courts. Hence, no need to be suspicious of Congress’ singling out of the District of Columbia existed for the simple reason that Congress had not singled out the District — it had treated it precisely as any state legislature might have treated its constituents. See Palmore v. United States, 411 U.S. 389, 390-91 , 93 S.Ct. 1670, 1672-73 , 36 L.Ed.2d 342 (1973) (“In this respect, the position of the District of Columbia defendant is similar to that of the citizen of any of the 50 states when charged with a violation of state criminal law: Neither has a federal constitutional right to be tried before judges with tenure and salary guarantees.”).

That emphatically was not, however, the situation in Thompson, supra, in which Congress had created a single national rule to govern outside the District and had then arguably subjected the District to a distinct and harsher rule. Swain plainly does not address such a situation. When, as in Swain , Congress acts in its purely local capacity, courts simply do not possess the tools or the standards to police the congressional action via anything other than the constitutional strictures ordinarily applicable to state legislative action, even if the disenfranchisement of District residents makes it just as likely that Congress has acted without due regard to the interests of those residents in passing local, as well as national, legislation. If there is “bite” to the “ten miles squared” provision it is in this respect, not in depriving residents of the District of their protection as United States citizens. District residents may not be entitled to all the protections of a “Republican form of Government,” U.S. Const, art. IV, § 4, but they remain United States citizens.

In many circumstances, of course, a federal statute’s differential treatment of the District of Columbia or a particular state will be constitutionally permissible. Even in those areas in which the Constitution expressly requires uniformity, such as direct taxation, art. I, sec. 8, cl. 1, bankruptcy, id. at cl. 3, and naturalization, id., the Court has been reticent to circumscribe narrowly the power of Congress. See, e.g., United States v. Ptasynski, 462 U.S. 74 , *147 103 S.Ct. 2239 , 76 L.Ed.2d 427 (1983); Regional Rail Reorganization Act Cases, 419 U.S. 102, 159 , 95 S.Ct. 335, 366 , 42 L.Ed.2d 320 (1974). Where uniformity is not constitutionally required, Congress has even greater latitude to tailor legislation to distinct conditions; as the Supreme Court explained in Secretary of Agriculture v. Central Roig Refining Co., 338 U.S. 604, 616 , 70 S.Ct. 403, 409 , 94 L.Ed. 381 (1950), “Congress may devise ... a national policy with due regard for the varying and fluctuating interests of different regions.” Congress is no less empowered to take account of such jurisdictional distinctions as they affect the District of Columbia. Cf. District of Columbia v. Carter, 409 U.S. 418 , 93 S.Ct. 602 , 34 L.Ed.2d 613 (1973) (holding, on basis of historical factors, that section 1983 of Title 42 of the United States Code, prior to its amendment in 1979, did not apply to the District). But national legislation drafted along jurisdictional lines must rest upon grounds of real difference between the locality unequally burdened and the rest of the nation. Thus, while the majority opinion is probably correct in suggesting that Congress is empowered to impose a 55-mile-per-hour speed limit on interstate highways outside the District while permitting higher speeds in the District, maj. op. at n. 10, such a distinction is not justified merely because Congress has plenary power over the District. Congress, I believe, would equally be within its powers in permitting higher speeds in Utah or Wyoming. Singling out of any of these jurisdictions would be permissible for the same reason: such legislation would almost certainly satisfy the minimal demands that the rationality standard of review would impose in this area. That the legislation would survive equal protection scrutiny does not, however, detract from the requirement that it be subjected to this scrutiny. To reiterate, in this regard the District of Columbia stands on no less equal a footing than any state.

My analysis of this case is not altered by the fact that federal courts in the District are required to employ a special verdict in the form of not guilty by reason of insanity when the defendant’s sanity is at issue. See 24 D.C.Code § 301(c) (1981) (requiring the use of such special verdicts in both federal and local courts). While it is true that Congress has not mandated use of a similar special verdict for federal courts outside the District, it is also true that federal courts here are not the same sort of Article III federal courts that can be found in one of the fifty states. Imposition of the unique special verdict provision in the District traces to this unique and hermaphroditic status of the District’s federal courts. As the majority points out, the automatic commitment statute constitutes a direct congressional response to Durham v. United States, 214 F.2d 862 (D.C.Cir.1954). At the time of Durham , however, the United States District Court for the District of Columbia, unlike other federal district courts, had concurrent jurisdiction over many local criminal matters. See Palmore v. United States, 411 U.S. 389 , 392 n. 2, 93 S.Ct. 1670 , 1673 n. 2, 36 L.Ed.2d 342 (1973). Monte Durham himself was charged with the local offense of housebreaking, 22 D.C.Code §§ 1801, 2201, 2202 (1951); his case thus would not have been in federal court at all were it not for the unique status of the District’s federal courts. In ordering “federal” courts in the District to use the special verdict, Congress was therefore responding as a local legislature might to a Durham -like decision by its state courts. Thus, the statutorily mandated special verdict is not truly a federal rule within the framework set out above and hence raises no equal protection concerns. Because the Durham decision itself cut across the state/federal lawmaking line, Congress was empowered to offer an analogously hybrid response.

Moreover, because the federal courts in the District of Columbia have the unique obligation to provide for commitment of mentally incapacitated federal defendants, it is not unreasonable for Congress to have prescribed the unique special verdict only in the District. Even if the special verdict provision were considered a “federal” rule, there is no right which is infringed by use *148 of that verdict only in the District. Federal defendants tried in federal courts outside the District have no right not to be automatically committed following an insanity acquittal, nor do they have a right that a jury render only a general verdict of guilty or not guilty against them. As to the former, I have already stated my view that states could extend their automatic commitment statutes to federal insanity acquit-tees. See supra at 142. If, for example, a defendant stipulated to commission of all the underlying acts that constituted a federal crime and offered in defense only the plea of insanity, see, e.g., United States v. Harper, 460 F.2d 705, 706 , 707 n. 2 (5th Cir.1972), a general verdict of not guilty could be used by a state to automatically commit the defendant to a local mental institution for at least 50 days. Cf. Jones v. United States, — U.S. —, 103 S.Ct. 3043 , 77 L.Ed.2d 694 (1983) (legislature may presume that one who is found to have been insane at the time he engaged in criminal conduct continues to be mentally ill for at least 50 days after that finding). Support for this view is found in the House Judiciary Committee’s recent rejection of a federal commitment scheme, cited by the majority at p. 15, a rejection predicated on Congress’ decision to leave to the states the commitment of federal insanity acquit-tees, and from the legislative history of 24 D.C.Code § 301, see H.R.Rep. No. 907, 91st Congress, 2d Sess. 74 (1970), which makes clear that Congress did not believe that adoption of automatic commitment procedures unduly burdened the federal “right” to raise an insanity defense. Given this congressional position, states would similarly not unduly burden this federal “right” by enacting automatic commitment provisions.

As to the latter point — that federal defendants have no right to a general verdict when their sanity is at issue — federal courts outside the District of Columbia have employed special verdicts even in the absence of any statutory command to do so. See, e.g., United States v. McCracken, 488 F.2d 406, 418-21 (5th Cir.1974). As the court in McCracken reasoned, such a verdict may make it easier for a jury to understand that there are several roads to acquittal, and the use of this special verdict does not raise the specter of directing the jury’s deliberations in the way that other special verdicts are thought to. That states cannot direct federal courts to employ such verdicts thus does not result from the fact that such verdicts burden a right which Congress has bestowed upon federal defendants, but rather from the principle, grounded in the supremacy clause, that states cannot prescribe the procedures to be used in federal courts. The situation presented in this case is thus very different from one in which Congress had barred the states from automatically committing federal insanity acquittees or had ordered federal courts outside the District to use only general verdicts in criminal cases. Congress in enacting the special-verdict provision for the District has acted to facilitate its decision that local interests require automatic commitment of federal insanity acquittees, but in doing so Congress has not infringed any substantive federal rights of District insanity acquit-tees. As a result, equal protection principles have not been transgressed.

The government seeks to avoid the general framework of analysis set out in this concurrence by argúing that Congress’ power over the District of Columbia cannot be neatly segregated into “local” and “national” compartments; Congress’ power over the District, it is said, “encompasses the full authority of government____” Northern Pipeline Const. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 76 , 102 S.Ct. 2858, 2874 , 73 L.Ed.2d 598 (1982) (emphasis original); see also Kendall v. United States, 37 U.S. (12 Pet.) 524, 619 , 9 L.Ed. 1181 (1838) (“There is in this district, no division of powers between the general and state governments. Congress has the entire control over the district for every purpose of government____”). That argument, however, misses the mark. As a matter of constitutional power, Congress of course has the full authority of both a local and a national sovereign in the District; *149 Congress, for example, can invoke its commerce clause power to regulate District corporations that engage in interstate commerce but Congress can also regulate those corporations directly under its local police powers. See Key v. Doyle, 434 U.S. 59 , 68 n. 13, 98 S.Ct. 280 , 285 n. 13, 54 L.Ed.2d 238 (1977) (“[T]he nature of the D.C.Code ... distinguishes it from other federal statutes. Unlike most congressional enactments, the Code is a comprehensive set of laws equivalent to those enacted by state and local governments having plenary power to legislate for the general welfare of their citizens.”) (emphasis added). Where I take issue with the majority and the government is not over the existence vel non of such power but rather with the view that no equal protection barriers confine the way in which that power is subsequently exercised vis-á-vis the way in which Congress exercises its power nationwide. The fact that Congress concededly possesses the threshold power of a dual sovereign in the District does not a fortiori mean that Congress can enact one rule for the nation as a whole and a separate rule for only the District. Such a distinction may be permissible, but only after the disparate jurisdictional treatment is subjected to the appropriate equal protection standard. That, rather than the lack of any sharp division between Congress’ roles in the District, is the teaching of the Supreme Court’s precedents in this area: “Under that [plenary power] clause, Congress possesses not only every appropriate national power, but, in addition, all the powers of legislation which may be exercised by a state in dealing with its affairs, so long as other provisions of the Constitution are not infringed.’’ Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 434-35 , 52 S.Ct. 607, 609-10 , 76 L.Ed. 1204 (1932) (emphasis added).

The government may be right that difficult borderline cases will arise in which classifying congressional action in the District as local or national will defy mechanical application of the framework set out in this concurrence. See, e.g., Thomas v. Berry, 729 F.2d 1469 (D.C.Cir.1984). That such eases are likely to arise, however, should not be allowed to obscure the central point: national legislation uniquely applicable to the District of Columbia is not insulated from jurisdictionally-based equal protection scrutiny merely because Congress possesses “plenary power” over the District. Whatever one thinks of the idea of states as “little laboratories” in other contexts, the District of Columbia is assuredly not ipso facto a proper proving ground for discriminatory application of national law.

This point is overrun in the majority’s opinion. There is no doubt that Cohen is properly confined in St. Elizabeth’s, for Congress, in its capacity as local sovereign for the District, has enacted valid rules for the confinement of individuals found not guilty by reason of insanity. That Cohen’s case is easy, however, does not countenance a decision which endorses national legislation that singles out inhabitants of the District of Columbia for the selective deprivation of important, federal, rights. Such legislation may be valid, but that conclusion can be reached only after the appropriate equal protection analysis has been carried out. The judicial obligation to carry out this analysis does not, as the majority would have it, evaporate at the sound of the talismanic words “plenary power.”

The tangled web of democracy in the District of Columbia is not easy to sort out or unravel. The framers did provide a special niche in the Constitution for this jurisdiction and did give Congress a unique and sovereign power over it. But in so doing they nowhere suggested that the people who inhabit the District of Columbia were to be stripped of any of the protections afforded other United States citizens. Just as Congress can pass no law abridging the freedom of speech of District residents, neither can it ignore in the District the equal protection presumption that national legislation should apply nationwide. When Congress acts as the national legislature, equal protection principles require that it treat residents of the District of Columbia *150 with the same concern and respect that is given to residents of any other jurisdiction. Such a requirement of proportionality is especially pertinent to laws uniquely impacting D.C. residents since they have no voting voice of their own in the national legislature to gainsay disproportionality in the first place. Because the majority opinion appears to ignore this requirement, I join only the result reached today. *

. 18 U.S.C. § 13 (1976).

. United States v. Sharpnack, 355 U.S. 286 , 78 S.Ct. 291 , 2 L.Ed.2d 282 (1958); Franklin v. United States, 216 U.S. 559 , 30 S.Ct. 434 , 54 L.Ed. 615 (1910).

. See Berman v. Parker, 348 U.S. 26 , 75 S.Ct. 98 , 99 L.Ed. 27 (1954); District of Columbia v. John R. Thompson Co., 346 U.S. 100 , 73 S.Ct. 1007 , 97 L.Ed. 1480 (1953); Fireman’s Insurance Co. of Washington, D.C. v. Washington, 483 F.2d 1323 (D.C.Cir.1973).

Once it is recognized that national legislation uniquely applicable to the District of Columbia must survive equal protection scrutiny, the level of scrutiny applied becomes of critical importance. I find it unnecessary to broach this question in this case in light of my view that the legislation at issue here is local rather than national. Were I to reach the issue, however, I could not subscribe to the majority’s equal protection analysis. I leave my disagreement with the majority on that count for another day.