Amicus Curiae Brief — Angelica Castañon, et al., Appellants v. United States, et al.

No. 20-1279

IN THE

ANGELICA CASTAÑON, ET AL.,

v.

Appellants,

UNITED STATES OF AMERICA, ET AL.,

Appellees.

On Appeal from the

United States District Court

for the District of Columbia

BRIEF FOR AMICUS CURIAE THE UNITED

STATES HOUSE OF REPRESENTATIVES

IN SUPPORT OF APPELLANTS

DOUGLAS N. LETTER

General Counsel

Counsel of Record

MEGAN BARBERO

ERIC R. COLUMBUS

LISA K. HELVIN

OFFICE OF GENERAL COUNSEL

U.S. HOUSE OF REPRESENTATIVES

5140 O’Neill House Office Bldg.

Washington, D.C. 20515

(202) 225-9700

douglas.letter@mail.house.gov

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE ............................. 1

SUMMARY OF ARGUMENT ..................................... 4

ARGUMENT ................................................................ 5

I.

Residents Of The District Are Denied The

Essential Right Of Voting Representation In

Congress. ............................................................... 5

A. Voting Is A Fundamental Right

“Preservative Of All Rights.” ......................... 5

B. The Lack Of Congressional Voting

Representation For District Residents

Contravenes The Basic Constitutional

Principle Of Self-Governance. ........................ 7

II. The District Court Erred In Holding That

Congress Lacks The Authority To Enact

Legislation That Would Enfranchise District

Residents. ............................................................ 10

A. The District Clause Grants Congress

Plenary Legislative Power Over The

District. ......................................................... 10

B. Legal Precedent Supports Congress’s

Authority to Provide Voting Rights For

The District. .................................................. 17

C. Congress Understands Its District Clause

Authority To Include The Power To

Legislate Voting Rights For District

Residents....................................................... 21

CONCLUSION .......................................................... 24

ii

TABLE OF AUTHORITIES

Cases

Page(s)

Adams v. Clinton, 90 F. Supp. 2d 35 (D.D.C.

2000), aff’d, 531 U.S. 941 (2000), and aff’d

sub nom. Alexander v. Mineta, 531 U.S. 940

(2000) .............................................................. 20, 21

District of Columbia v. Carter, 409 U.S. 418

(1973) .............................................................. 12, 18

Loughran v. Loughran, 292 U.S. 216 (1934) ............ 18

Nat’l Mut. Ins. Co. v. Tidewater Transfer Co.,

337 U.S. 582 (1949) .......................................... 4, 19

Neild v. District of Columbia, 110 F.2d 246

(D.C. Cir. 1940) ..................................................... 10

O’Donoghue v. United States, 289 U.S. 516

(1933) .............................................................. 11, 17

Palmore v. United States, 411 U.S. 389 (1973) ... 11, 18

Powell v. McCormack, 395 U.S. 486 (1969) ................ 6

Reynolds v. Sims, 377 U.S. 533 (1964)........................ 5

Stoutenburgh v. Hennick, 129 U.S. 141

(1889) .......................................................... 8, 11, 18

United States v. Cohen, 733 F.2d 128

(D.C. Cir. 1984) ..................................................... 10

Wesberry v. Sanders, 376 U.S. 1 (1964) .................. 1, 5

Yick Wo v. Hopkins, 118 U.S. 356 (1886) .................... 5

iii

Constitutional & Statututory

Provisions

Page(s)

U.S. Const.:

Art. I:

§ 2:

cl. 1 ............................................................. 11

cl. 2 ............................................................. 11

cl. 3 ............................................................. 11

cl. 4 ............................................................. 11

§ 4, cl. 1 ............................................................ 12

§ 8:

cl. 3 ............................................................. 18

cl. 17 (District Clause) ........................passim

cl. 18 ........................................................... 19

Art. III, § 2, cl. 1 ................................................... 19

Art. IV, § 1 ............................................................ 18

Amend. XIV, § 2.................................................... 11

Act of Dec. 29, 1979, Pub. L. No. 96-170,

93 Stat. 1284 (1979) ............................................. 18

An Act for Establishing the Temporary and

Permanent Seat of the Government of the

United States, 1 Stat. 130 (1790)......................... 16

iv

Constitutional & Statutory

Provisions—Continued

Page(s)

District of Columbia Self-Government and

Governmental Reorganization Act, Pub. L.

No. 93-198, 87 Stat. 774 (1973) .............................. 8

28 U.S.C. § 1257......................................................... 18

42 U.S.C. § 1983......................................................... 18

52 U.S.C. § 20302(a)(1) .............................................. 15

Legislative Materials

155 Cong. Rec. S2507 (daily ed. Feb. 26, 2009) ........ 22

Common Sense Justice for the Nation’s Capital:

An Examination of Proposals to Give D.C.

Residents Direct Representation: Hearing

Before the H. Comm. on Gov’t Reform,

108th Cong. 75 (2004) (Statement of the

Hon. Kenneth W. Starr) ................................passim

District of Columbia House Voting Rights Act

of 2007, H.R. 1905, 110th Cong. .......................... 21

District of Columbia House Voting Rights Act

of 2009, S. 160, 111th Cong. ................................. 22

District of Columbia House Voting Rights Act

of 2009: Hearing on H.R. 157 Before the

Subcomm. on the Constitution, Civil Rights

& Civil Liberties of the H. Comm. on the

Judiciary, 111th Cong. 178 (2009) (Statement

of Viet D. Dinh, Georgetown University Law

Center Professor) ...........................................passim

v

Legislative Materials—Continued

Page(s)

Ending Taxation Without Representation: The

Constitutionality of S. 157: Hearing Before

the S. Comm. on the Judiciary, 110th Cong.

(2007):

Prepared Statement of Patricia M. Wald .....passim

Statement of Patricia Wald, Former Chief

Judge, U.S. Court of Appeals for the District

of Columbia Circuit, Washington, D.C. ............... 14

The Hon. Patricia Wald, Answers to Written

Questions .............................................................. 14

H.R. 51: Making D.C. the 51st State: Hearing

Before the H. Comm. on Oversight and

Reform, 117th Cong. (2021):

Opening Statement of Chairwoman

Carolyn B. Maloney ................................................ 9

Opening Statement of Congresswoman

Eleanor Holmes Norton ................................... 9, 23

Statement of Fitzroy Lee, Interim Chief

Financial Officer, Government of the

District of Columbia ............................................... 7

H. Rep. No. 111-22 (2009).................................. 8, 9, 21

Rule II.8(b), Rules of the U.S. House of

Representatives (117th Cong.) ............................... 1

Other Authorities

vi

Page(s)

2 Debates on the Federal Constitution

(Jonathan Elliot ed., 1876) ..................................... 6

2 The Records of the Federal Convention of

1787 (Max Ferrand ed., 1911) ................................ 6

Constitutionality of the D.C. House Voting

Rights Act of 2009, 33 Op. O.L.C. 38 (2009) ........ 23

Roy P. Franchino, The Constitutionality of

Home Rule and National Representation for

the District of Columbia, 46 Geo. L.J. 207

(1957-58) ........................................................... 7, 17

Lawrence M. Frankel, Comment, National

Representation for the District of Columbia:

A Legislative Solution, 139 U. Pa. L. Rev.

1659 (1991) ........................................................... 15

Senator 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 (2008) ...................... 7, 16

James Madison, Property and Suffrage: Second

Thoughts on the Constitutional Convention

(1821), in The Mind of the Founder: Sources

of the Political Thought of James Madison

(Marvin Meyers ed., 1981) ..................................... 6

Jamie B. Raskin, Is This America? The District

of Columbia and the Right to Vote, 34 Harv.

C.R.-C.L. L. Rev. 39 (1999) .................................. 16

vii

Other Authorities—Continued

Page(s)

Peter Raven-Hansen, Congressional

Representation for the District of Columbia:

A Constitutional Analysis, 12 Harv. J. on

Legis. 167 (1975)................................................... 15

The Federalist (Jacob E. Cooke ed., 1961)

(James Madison)

No. 39 ...................................................................... 1

No. 43 ...................................................................... 7

No. 57 ...................................................................... 6

Views on Legislation Making the District of

Columbia a Congressional District, 33 Op.

O.L.C. 156 (2009) .................................................. 22

INTEREST OF AMICUS CURIAE 1

The right to vote is essential to our Nation’s core

democratic values and constitutional principles.

Indeed, this Court has long emphasized that “[n]o

right is more precious in a free country than that of

having a voice in the election of those who make the

laws.” Wesberry v. Sanders, 376 U.S. 1, 17 (1964).

Protecting the right to vote is particularly important

to the House of Representatives, which, from the time

of the Founding, has been “elected immediately by the

great body of the people.” The Federalist No. 39, at

252 (James Madison) (Jacob E. Cooke ed., 1961).

Notwithstanding

the

importance

of

this

fundamental right, the more than 700,000 residents of

the District of Columbia (District) have no voting

representation in Congress. Amicus curiae, the U.S.

House of Representatives (House), 2 therefore

1 The parties received the necessary advance notice about the

filing of this brief required by Supreme Court Rule 37.2(a) and

have consented to the filing. Pursuant to Supreme Court Rule

37.6, counsel for amicus states that no counsel for a party

authored this brief in whole or in part, and that no person or

entity, other than amicus and its counsel, made a monetary

contribution to this brief.

2 The Bipartisan Legal Advisory Group (BLAG) of the United

States House of Representatives, which “speaks for, and

articulates the institutional position of, the House in all litigation

matters,” authorized the filing of an amicus brief in this matter.

Rules of the U.S. House of Representatives (117th Cong.), Rule

II.8(b), https://perma.cc/8C6V-9YUJ. The BLAG comprises the

Honorable Nancy Pelosi, Speaker of the House, the Honorable

Steny H. Hoyer, Majority Leader, the Honorable James E.

Clyburn, Majority Whip, the Honorable Kevin McCarthy,

Republican Leader, and the Honorable Steve Scalise, Republican

2

respectfully submits this brief in support of Appellants

Angelica Castañon, Gabriela Mossi, Alan Alper,

Deborah Shore, Laurie Davis, Silvia Martinez,

Vanessa Francis, Abby Loeffler, Susannah Weaver,

Manda Kelley, and Absalom Jordan (collectively, Ms.

Castañon), residents of the District who seek

Congressional voting representation.

The House has a compelling interest in defending

voting representation for residents of the District—

and in preserving the scope of its own authority under

the U.S. Constitution.

As relevant here, the

Constitution’s District Clause gives Congress broad,

plenary authority to “exercise exclusive Legislation in

all Cases whatsoever” over the District that would

“become the Seat of the Government.” U.S. Const. art.

1, § 8, cl. 17. As various former judges, scholars, and

legal historians have recognized, this grant of power

and legislative control over the District encompasses

the “authority to create a seat in the House of

Representatives, [a] fully voting seat.” 3

Voting

representation in Congress for District residents is

therefore both consistent with our Nation’s

foundational principles of self-governance and consent

of the governed, and authorized by the Constitution.

The three-judge district court erred in holding to

the contrary—i.e., in concluding that Congress lacks

the constitutional authority to enact legislation

Whip. Representative McCarthy and Representative Scalise

dissented.

3 Common Sense Justice for the Nation’s Capital: An

Examination of Proposals to Give D.C. Residents Direct

Representation: Hearing Before the H. Comm. on Gov’t Reform,

108th Cong. 75 (2004) (Statement of the Hon. Kenneth W. Starr).

3

granting District residents voting representation in

Congress. The House has a unique interest in

correcting that misunderstanding and advancing the

proper interpretation of the District Clause, as well as

the other constitutional provisions that play a critical

role in guaranteeing democratic self-governance for all

Americans.

Indeed, such understanding of the

relevant constitutional provisions is important to the

House’s ongoing legislative efforts to ensure that the

District’s residents receive the full complement of

voting rights and representation consistent with the

Constitution.

Given these strong institutional concerns, the

House submits this brief in support of Ms. Castañon

and urges the Court to recognize the fundamental

constitutional interests at stake in enfranchising

District residents, who should have a full and equal

voice in the federal legislature.

4

SUMMARY OF ARGUMENT

The District Clause confers on Congress the power

to “exercise exclusive 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. As this Court has long

recognized, that power is plenary: It gives Congress

“full and unlimited jurisdiction 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) (plurality) (cleaned up).

This Court has also long confirmed Congress’s

authority to enact legislation putting the District on

equal footing as the States for constitutional purposes,

even where the relevant constitutional text refers only

to “States” and does not expressly include the District.

See, e.g., id. at 603-04. It follows, therefore, that

Congress may exercise its power under the District

Clause to enact legislation ensuring that District

residents are afforded the same constitutional

protections as citizens of the States.

Congress’s exercise of its District Clause authority

to provide full Congressional voting representation for

District residents is especially appropriate—and

necessary—given the centrality of the right to vote to

our Nation’s core democratic values. Indeed, since the

Founding, the ability to choose one’s own legislators

and thus have a voice in the legislative process has

been deemed essential to the functioning of a

democratic republic. And as recent legislative efforts

have highlighted, there is no legitimate justification

for denying this fundamental right to the residents of

our Nation’s capital.

5

ARGUMENT

I. Residents Of The District Are Denied The

Essential Right Of Voting Representation In

Congress.

A. Voting

Is

A

Fundamental

“Preservative Of All Rights.”

Right

As this Court has made clear, “the political

franchise of voting” is “a fundamental political right”

because voting rights enable the preservation “of all

rights.” Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886).

And because “[n]o right is more precious in a free

country than that of having a voice in the election of

those who make the laws,” this Court has instructed

that “[o]ur Constitution leaves no room for

classification of people in a way that unnecessarily

abridges this right.” Wesberry, 376 U.S. at 17-18.

Thus, “any alleged infringement of the right of citizens

to vote must be carefully and meticulously

scrutinized.” Reynolds v. Sims, 377 U.S. 533, 562

(1964).

Indeed, the Department of Justice (DOJ) agreed in

its briefing below that “[v]oting has long been

recognized as a vital right.” Mem. in Supp. of Exec. &

Senate Defs.’ Mot. to Dismiss the Am. Compl. at 37,

Castañon, et al., v. United States of America, et al., No.

18-cv-02545 (D.D.C. Apr. 1, 2019). The district court

too recognized the critical importance of the

franchise—and the “gravity” of Ms. Castañon’s claim

that District residents had long been denied this

essential right. Jur. Stmt. App. 4a, 60a-61a. The

district court likewise acknowledged that the denial of

Congressional voting representation is inconsistent

6

with “the democratic ideals that impelled and

informed the creation of the Union.” Id. at 60a-61a.

This concept—that the right to elect one’s

legislators is crucial to a healthy democracy—is not

new. At the creation of our republic, Alexander

“Hamilton emphasized: ‘[T]he true principle of a

republic is, that the people should choose whom they

please to govern them.’” Powell v. McCormack, 395

U.S. 486, 540-41 (1969) (quoting 2 Debates on the

Federal Constitution 257 (Jonathan Elliot ed., 1876)).

James Madison similarly observed that “the right

of suffrage is . . . fundamental,” and a “vital principle

of free Government” is “that those who are to be bound

by laws[] ought to have a voice in making them.”

James Madison, Property and Suffrage: Second

Thoughts on the Constitutional Convention (1821), in

The Mind of the Founder: Sources of the Political

Thought of James Madison 394-95, 398 (Marvin

Meyers ed., 1981). 4 And as to District residents, in

particular, Madison noted that it was understood that

the cession of land for the creation of the District

would not abrogate “the rights and the consent of the

citizens inhabiting it,” who would have a “voice in the

4 See also, e.g., 2 The Records of the Federal Convention of

1787 201-203 (Max Ferrand ed., 1911), https://perma.cc/VA3SDMP3 (at the Constitutional Convention, several delegates

opposed restricting the right to vote to property owners,

explaining that “[t]here is no right of which the people are more

jealous than that of suffrage” (Del. Pierce Butler, S.C.), and

expressing concern that “[t]he people” would not support the

Constitution “if it should subject them to be disfranchised” (Del.

Oliver Ellsworth, Conn.)); The Federalist No. 57, at 384 (James

Madison) (embracing universal suffrage).

7

election of the Government which is to exercise

authority over them.” The Federalist No. 43, at 289.

B. The Lack Of Congressional Voting

Representation For District Residents

Contravenes The Basic Constitutional

Principle Of Self-Governance.

There are more than 700,000 residents of the

District. 5 “Yet, unlike American citizens living in the

fifty states[,] or even outside the United States

altogether, Americans living in the District of

Columbia . . . cannot exercise this most precious right

with respect to their national government.” Senator

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, 287 (2008).

This denial of direct voting representation in

Congress contravenes our Nation’s basic principle of

self-governance. District residents are “Americanized

for the purpose of national and local taxation and

arms-bearing, but not for the purpose of voting.” Id.

(quoting Roy P. Franchino, The Constitutionality of

Home Rule and National Representation for the

District of Columbia, 46 Geo. L.J. 207, 207 (1957-58)).

Moreover, the absence of representational rights

serves no legitimate governmental interest: Granting

U.S. citizens in the District voting representation in

Congress would significantly advance the rights of

5 See H.R. 51: Making D.C. the 51st State: Hearing Before the

H. Comm. on Oversight and Reform, 117th Cong. (2021)

(Statement of Fitzroy Lee, Interim Chief Financial Officer,

Government of the District of Columbia) (the District’s

population “now stands at approximately 714,000”).

8

District residents without rescinding others’ right to

voting representation. As Patricia Wald, the former

Chief Judge of the U.S. Court of Appeals for the D.C.

Circuit, explained, expanding the franchise to District

residents also would not infringe the “structural

balance between the Union and the States,” otherwise

“usurp[]” the States’ powers, or “dilute[]” the “civil

rights of any U.S. citizens”; accordingly, the “balance

tilts in favor of recognizing for D.C. residents the most

basic right of all democratic societies.” Ending

Taxation

Without

Representation:

The

Constitutionality of S. 157: Hearing Before the S.

Comm. on the Judiciary, 110th Cong. 259-60 (2007)

(Prepared Statement of Patricia M. Wald).

The lack of voting representation for District

residents is particularly striking given that Congress

“has ultimate authority over all aspects of the city’s

legislative, executive, and judicial functions.” H. Rep.

No. 111-22, at 3 (2009); see also Stoutenburgh v.

Hennick, 129 U.S. 141, 147 (1889) (Congress

“possess[es] the combined powers of a general and of a

state government” over the District). As the formal

head of the local government for District residents,

Congress reviews legislation passed by the Council of

the District of Columbia before it may become law,

limits the types of laws the Council may pass, and may

legislate on any District matter at any time. 6 Denying

6 Congress has ceded some authority to local officials, while

retaining significant veto and oversight authority for itself. See

District of Columbia Self-Government and Governmental

Reorganization Act (Home Rule Act), Pub. L. No. 93-198, 87 Stat.

774 (1973) (codified in scattered sections of the D.C. Code)

(delegating certain constitutional legislative authority to an

9

District residents the right to vote for Congressional

representatives is thus “equivalent to a State resident

being denied the right to vote for State leaders as well

as national leaders.” Prepared Statement of Patricia

M. Wald at 259 n.17.

District residents also bear all the responsibilities

of our representative democracy despite their

exclusion from Congressional representation. They

“pay billions of dollars in Federal taxes each year” and

must “register for selective service, serve on Federal

juries, and assume other responsibilities of U.S.

citizenship.” H. Rep. No. 111-22, at 4. 7 Further, many

District residents are Federal government employees

and members of our Nation’s armed forces. Id. 8 It is

especially troubling that members of the District who

join the military bear arms to protect the

democratically elected government of the United

States, yet lack voting representation in Congress.

elected Mayor and Council but retaining authority to reject

proposed legislation, and preserving the authority for Congress

to enact public laws that affect the District).

7 The District reportedly pays more in federal taxes than

many States. See H.R. 51: Making D.C. the 51st State: Hearing

Before the H. Comm. on Oversight and Reform, 117th Cong.

(2021) (Opening Statements of Chairwoman Carolyn B. Maloney

and Congresswoman Eleanor Holmes Norton) (reporting that the

District pays more in federal taxes than over 20 States, and more

per capita than any State).

8 District “residents have fought in every American war.”

Opening Statement of Congresswoman Eleanor Holmes Norton.

10

II. The District Court Erred In Holding That

Congress Lacks The Authority To Enact

Legislation That Would Enfranchise District

Residents.

The District Clause vests in Congress plenary

power over the District and its affairs. It provides:

The Congress shall have Power To . . .

exercise exclusive Legislation in all

Cases whatsoever, over such District

(not exceeding ten Miles square) as may,

by Cession of particular States, and the

Acceptance of Congress, become the Seat

of the Government of the United

States[.]

U.S. Const. art. I, § 8, cl. 17. The text and history of

this provision, as well as relevant precedent

interpreting the scope of Congress’s Article I powers,

confirm that Congress has the constitutional authority

to pass legislation granting District residents voting

representation in Congress.

A. The District Clause Grants Congress

Plenary Legislative Power Over The

District.

With the sweeping language of the District Clause,

the Framers gave Congress “extraordinary and

plenary power,” United States v. Cohen, 733 F.2d 128,

140 (D.C. Cir. 1984) (Wilkey, J., concurring), to

“legislate within the District for every proper purpose

of government,” Neild v. District of Columbia, 110 F.2d

246, 249 (D.C. Cir. 1940); see also id. at 250 (“Congress

possesses full and unlimited jurisdiction to provide for

the general welfare of citizens within the District of

11

Columbia by any and every act of legislation which it

may deem conducive to that end.”).

Indeed, this Court has long emphasized the

extraordinary breadth of Congress’s District Clause

powers, explaining that “[o]ver this District[,]

Congress possesses ‘the combined powers of a general

and of a state government in all cases where

legislation is possible.’” O’Donoghue v. United States,

289 U.S. 516, 539 (1933) (quoting Stoutenburgh, 129

U.S. at 147). As a result, Congress not only may

“exercise all the police and regulatory powers which a

state legislature or municipal government would

have” over the District, but it may also apply laws of

“otherwise nationwide application” to the District.

Palmore v. United States, 411 U.S. 389, 397 (1973).

While acknowledging the broad scope of Congress’s

authority over the District, the district court

nevertheless concluded that the Constitution does not

empower Congress to enact legislation granting

District residents voting representation in Congress.

Jur. Stmt. App. 51a-60a. In support, the court recited

the various provisions in Article I that tie

Congressional representation to residency in a

“State”—and concluded that the term “State” in these

contexts does not include the District. Id. at 51a-52a. 9

9 The district court cited U.S. Const. art. I, § 2, cl. 1 (Members

of the House are elected “by the People of the Several States”); id.

cl. 2 (Members must inhabit the “State” from which they are

chosen); id. cl. 3 (“Representatives and direct Taxes” are

“apportioned among the several States”; “each State shall have at

Least

one

Representative”);

id.

amend.

XIV,

§2

(“Representatives shall be apportioned among the several States

according to their respective numbers”); id. art. I, § 2, cl. 4

12

The district court acknowledged, however, that this

Court has recognized that “[w]hether the District of

Columbia constitutes a ‘State or Territory’ within the

meaning of any particular statutory or constitutional

provision depends upon the character and aim of the

specific provision involved.” Id. at 54a (quoting

District of Columbia v. Carter, 409 U.S. 418, 420

(1973)). Yet the district court determined that,

because the nature of Congressional representation

“was the considered result of extensive debate” and

compromise at the Founding, it would necessarily

upset this constitutional balance to allow Congress,

“acting via the District Clause,” to enact legislation

providing for Congressional representation for District

residents. Id. at 60a.

That conclusion is wrong: It ignores the broad

grant of authority in the District Clause and

improperly subordinates the Clause to provisions that

say nothing about the scope of Congress’s legislative

authority over the District.

In fact, after studying the text and history of the

Clause, numerous legal scholars and senior

government officials have rejected the approach

embraced by the district court and instead have

concluded that Congress has the authority to legislate

voting representation for District residents. For

example, Kenneth W. Starr, former Solicitor General

of the United States and a former Judge on the U.S.

(addressing mechanism by which “vacancies . . . in the

Representation from any State” shall be filled); id. art. I, § 4, cl.

1 (the “Times, Places and Manner of holding Elections for

Senators and Representatives, shall be prescribed in each State

by the Legislature thereof”).

13

Court of Appeals for the D.C. Circuit, explained that it

would be “quite wrong” to read other provisions in

Article I as implicitly limiting Congress’s authority

under the District Clause (as the district court here

did). Common Sense Justice for the Nation’s Capitol:

An Examination of Proposals to Give D.C. Residents

Direct Representation: Hearing Before the H. Comm.

on Gov’t Reform, 108th Cong. 75, 78-82 (2004)

(Statement of the Hon. Kenneth W. Starr). As Judge

Starr explained, “[l]egislation to enfranchise the

District’s residents presents an entirely and

altogether different set of issues from those that courts

have addressed when calling into question the scope of

[C]ongressional power” under other provisions in

Article I. Id. at 75.

A proper interpretation of the District Clause,

Judge Starr noted, must account for its “very broad”

language and “majestic” scope, as well as its location—

immediately “preced[ing] the grand necessary and

proper clause” in “a section of the Constitution that

confers broad powers on the Congress.” Id. at 75, 80.

Looking primarily to these textual and structural

cues, Judge Starr thus concluded that, pursuant to its

“plenary” authority under the District Clause,

“Congress does enjoy authority to create a seat in the

House of Representatives, [a] fully voting seat” for the

District. Id. at 75.

Judge Starr also noted that Congress’s

determination regarding the scope of its authority to

enact such legislation is entitled to deference by the

courts, which have historically “rightly shown

considerable deference where Congress announces its

considered judgment that the District should be

considered as a State for specific legislative purposes.”

14

Id. at 75. Finally, Judge Starr emphasized that

“fundamental principles of representative democracy

. . . support the extension of the franchise” to District

residents. Id. at 76, 84.

Chief Judge Wald similarly concluded that, while

granting voting representation to the District is “a

close, and . . . somewhat novel, constitutional issue,”

Congress nevertheless has the power under the

“plenary grant” of authority in the District Clause to

grant this right to District residents. Ending Taxation

Without Representation: The Constitutionality of S.

157: Hearing Before the S. Comm. on the Judiciary,

110th Cong. 19-20 (2007) (Statement of Patricia Wald,

Former Chief Judge, U.S. Court of Appeals for the

District of Columbia Circuit, Washington, D.C.).

Given “the absence of any clear impediment to

Congress exercising that power,” as well as “the

overwhelming justice” of allowing District residents

representation in Congress, she urged Congress to “tilt

the constitutional balance in favor of the legislation”

that would do so. Id. at 22. 10

Scholars have also noted that Congress has

elsewhere expanded the franchise to individuals who

are not residents of a State: In the Uniformed and

See also Ending Taxation Without Representation: The

Constitutionality of S. 157: Hearing Before the S. Comm. on the

Judiciary, 110th Cong. 84 (2007) (The Hon. Patricia Wald,

Answers to Written Questions) (“[T]he Constitution contains no

explicit or even implicit intent to deny D.C. residents a vote in

the House. Therefore, the plenary power granted Congress to

legislate ‘in all Cases whatsoever’ for the District can and should

be interpreted to include power to accord such a vote in order to

bring [Article I, Section 2 and the District Clause] into

harmony.”).

10

15

Overseas Absentee Voting Act of 1986, 52 U.S.C.

§ 20302(a)(1), Congress granted certain Americans

living abroad the right to vote in federal elections.

Prepared Statement of Patricia M. Wald at 256. As

Chief Judge Wald explained, if Congress were held to

lack the power to “address the District’s

disenfranchisement[,]” that would create an

“anomalous situation where a Massachusetts resident

can move to Zimbabwe and retain the right to vote in

federal elections but the same citizen cannot retain

that right if she moves to the District.” Id. at n.10. 11

The historical origins of the District Clause and its

special role in the formation of the Nation’s capital

reinforce the provision’s broad grant of authority and

confirm Congress’s expansive power over the District.

As is well documented in the briefing below, the

District Clause was adopted in order to ensure that the

Federal Government would not be beholden to, or

subject to the control of, local officials in the State

within which it happened to be located. 12 And there is

11 See also, e.g., District of Columbia House Voting Rights Act

of 2009: Hearing on H.R. 157 Before the Subcomm. on the

Constitution, Civil Rights & Civil Liberties of the H. Comm. on

the Judiciary, 111th Cong. 196 (2009) (Statement of Viet D. Dinh,

Georgetown University Law Center Professor).

12 See, e.g., Mem. of Law of Amici Curiae Const. Law Scholars

in Supp. of Pls., Castañon, et al., v. United States of America, et

al., No. 18-cv-02545 (D.D.C. June 10, 2019); Amici Curiae Br. of

D.C. Historians in Supp. of Pls., Castañon, et al., v. United States

of America, et al., No. 18-cv-02545 (D.D.C. June 10, 2019); see

also, e.g., Peter Raven-Hansen, Congressional Representation for

the District of Columbia: A Constitutional Analysis, 12 Harv. J.

on Legis. 167, 169-72 (1975); Lawrence M. Frankel, Comment,

National Representation for the District of Columbia: A

16

no indication that, in authorizing the creation of the

Nation’s capital, the Framers—who viewed the right

to vote as indispensable to the new republican

government (see supra pp. 5-7)—intended that the

residents of that District would forfeit their right to

elect voting representatives in Congress. 13

In 1790, Congress exercised its authority under the

District Clause to accept cessions of land by Maryland

and Virginia to create the seat of the Nation’s capital.

See An Act for Establishing the Temporary and

Permanent Seat of the Government of the United

States, 1 Stat. 130 (1790). The same legislation

provided that the Federal Government would assume

control over the District beginning in 1800—but, until

then, the laws of Maryland and Virginia would

continue to govern the States’ respective former

citizens. Id.; Statement of Viet D. Dinh at 187. During

the intervening decade, the District’s residents thus

continued to vote in Congressional elections in their

Legislative Solution, 139 U. Pa. L. Rev. 1659, 1683-84 (1991);

Hatch, “No Right Is More Precious in A Free Country”: Allowing

Americans in the District of Columbia to Participate in National

Self-Government, at 289, 291.

13 See, e.g., Statement of Viet D. Dinh at 185-86 (“There are

no indications, textual or otherwise, to suggest that the Framers

intended that Congressional authority under the District Clause,

extraordinary and plenary in all respects, would not extend also

to grant District residents representation in Congress.”); Jamie

B. Raskin, Is This America? The District of Columbia and the

Right to Vote, 34 Harv. C.R.-C.L. L. Rev. 39, 77 (1999) (“Congress

did not intend to disenfranchise citizens within the capital city.”);

Prepared Statement of Patricia M. Wald at 255 (“There certainly

is no evidence in the text or history of the Constitution signifying

the Framers wanted to deny the District the franchise forever for

any legitimate reason.”).

17

respective ceding states. Statement of Viet D. Dinh

187-88. 14

As then-Professor Dinh explained, the “critical

point” of this history is that early District residents’

“voting rights derived from Congressional action

under the District Clause recognizing and ratifying the

ceding states’ law as the applicable law for the nowfederal territory until further legislation” was enacted.

Id. That the first Congress so intentionally sought to

provide for continued Congressional voting rights for

District residents clearly “demonstrate[s] the

Framers’ belief that Congress may authorize by

statute representation for the District.” Id. at 188.

B. Legal Precedent Supports Congress’s

Authority to Provide Voting Rights For

The District.

Consistent with the text and history of the District

Clause, courts have long affirmed Congress’s

expansive authority to legislate under the Clause.

Because Congress has “plenary” authority under the

District Clause, and that power includes, “in respect of

the District, the exercise by Congress of other

appropriate powers conferred upon that body by the

Constitution,” O’Donoghue, 289 U.S. at 539, this Court

has repeatedly recognized that Congress may treat the

See also, e.g., Franchino, The Constitutionality of Home

Rule and National Representation for the District of Columbia, at

214; O’Donoghue, 289 U.S. at 540 (because the District’s

residents “were entitled to all the rights, guaranties, and

immunities of the Constitution” granted to residents of the ceding

states, “it is not reasonable to assume that the cession stripped

them of these rights”).

14

18

District as a State for various statutory and

constitutional purposes. 15

For example, the Commerce Clause refers to

Commerce “among the several States,” U.S. Const. art.

1, § 8, cl. 3, but this Court has held that Congress has

the power to regulate commerce across the District’s

borders. Stoutenburgh, 129 U.S. at 149; see also, e.g.,

Loughran v. Loughran, 292 U.S. 216, 227-28 (1934)

(providing that the Full Faith and Credit Clause, U.S.

Const. art. IV, § 1, binds courts of the District “equally

with courts of the states”); Palmore, 411 U.S. at 395

(noting that 28 U.S.C. § 1257 “plainly provided” that

the statutory phrase “highest court of a State” would

“include[] the District of Columbia Court of Appeals”).

Along the same lines, although “the District of

Columbia is not a ‘State’ within the meaning of the

Fourteenth

Amendment,”

this

Court

has

acknowledged that—in the important context of the

civil rights remedies created by Congress in 42 U.S.C.

§ 1983—Congress could include the District within the

statute’s scope via a “separate exercise of Congress’[s]

power to legislate for the District under Art. I, § 8, cl.

17.” Carter, 409 U.S. at 424 & id. at n.9. 16

15 See Statement of Viet D. Dinh at 179 (“Yes, the District is

not a state. Yes, ‘states’ mean states. But in other contexts,

where we have similar [tension], the courts have resolved the

issue by allowing Congress to treat District residents as if they

were residents of states, or courts themselves have treated

District residents as if they were residents of a state.”); id. at 19095 (discussing examples).

Following the Carter decision, Congress amended the

statute to include the District of Columbia in Section 1983. See

Act of Dec. 29, 1979, Pub. L. No. 96-170, 93 Stat. 1284 (codified

at 42 U.S.C. § 1983).

16

19

In National Mutual Insurance Company v.

Tidewater Transfer Company, 337 U.S. at 604, this

Court similarly upheld a federal statute that treated

the District as a State for purposes of federal court

diversity jurisdiction, even though Article III, § 2, cl.

1, refers to cases “between Citizens of different

States.” The three-justice plurality explained that

“the District of Columbia is not a state within Article

III of the Constitution,” but emphasized that—as the

House urges here—“[t]his conclusion does not . . .

determine that Congress lacks power under other

provisions of the Constitution to enact this

legislation.” Id. at 588 (emphasis added). The

Tidewater plurality located Congress’s authority in

the District Clause and the Necessary and Proper

Clause, U.S. Const. art. I, § 8, cl. 18, stressing the

“exclusive responsibility of Congress for the welfare of

the District,” 337 U.S. at 590, and the “broad terms,”

id. at 589, under which “Congress is empowered ‘to

exercise exclusive Legislation in all Cases whatsoever,

over such District,’” id. (quoting U.S. Const. art. I, § 8,

cl. 17). The plurality emphasized that where—as

would be the case here—Congress is legislating for the

District on a matter “not expressly forbidden by the

Constitution,” there is “no matter” in which the Court

should “pay more deference to the opinions of Congress

than in its choice of instrumentalities to perform a

function that is within its power.” Id. at 603. In the

words of Judge Starr, “[t]he Tidewater holding

confirms what is now the law: the Constitution’s use

of the term ‘State’ in Article III cannot mean ‘and not

of the District of Columbia.’” Statement of the Hon.

Kenneth W. Starr at 83.

As these cases illustrate, “courts have acceded to

Congress’s unique power to legislate for the District

20

when it exercises that power to put the District on a

par with States in critical constitutionally-related

areas.” Prepared Statement of Patricia M. Wald at

256-57. There is every reason to conclude that

Congress’s District Clause power extends equally to

the critical area of voting representation for the

District.

To the extent the district court relied on Adams v.

Clinton, 90 F. Supp. 2d 35 (D.D.C. 2000) (per curiam),

aff’d, 531 U.S. 941 (2000), and aff’d sub nom.

Alexander v. Mineta, 531 U.S. 940 (2000), that reliance

was misplaced. In Adams, a three-judge district court

determined that the District was not a State for

purposes of Article I apportionment of Congressional

representatives. Id. at 50, 55-56. But as the district

court here acknowledged, the court in Adams did not

have occasion to decide the issue the House presses:

whether the District Clause authorizes Congress to

enact legislation granting Congressional voting

representation to District residents. Jur. Stmt. App.

38a-39a & n.8.

The court in Adams concluded that it “lack[ed]

authority” to hold the denial of voting representation

for District residents unconstitutional and to grant

plaintiffs the injunctive relief they sought. 90 F. Supp.

2d at 72. The court stressed that “[i]f they are to

obtain [relief], [plaintiffs] must plead their cause in

other venues.” Id. Contrary to the district court’s

notion that the only “other venues” available to

plaintiffs are statehood or a constitutional amendment

(Jur. Stmt. App. 61a), this statement in Adams

“suggested that it is up to Congress to grant through

legislation the fairness in representation that the

court was unable to order.” Statement of Viet D. Dinh

21

at 192. Congress has the power not only to provide

statehood for the District through legislation, but also

to provide voting representation through legislation to

resolve the “contradiction between the democratic

ideals upon which this country was founded and the

exclusion of District residents from [C]ongressional

representation.” Adams, 90 F. Supp. 2d at 72.

C. Congress Understands Its District Clause

Authority To Include The Power To

Legislate Voting Rights For District

Residents.

Congress’s efforts to provide Congressional voting

representation for District residents demonstrate its

understanding that the Constitution affords it the

authority to provide this crucial right through

legislation.

In 2007, for example, the House passed a bill that

would have granted the District a full voting seat in

the House. See District of Columbia House Voting

Rights Act of 2007, H.R. 1905, 110th Cong. (2007). The

bill provided that the District “shall be considered a

Congressional district for purposes of representation

in the House of Representatives,” id. § 2(a), and would

have permanently increased the number of

representatives to 437 Members, id. § 3(a). As a House

Judiciary Committee report later explained, it was

understood that the source of authority for this

provision was the District Clause. See H. Rep. No.

111-22, at 5. The Committee noted that the “Framers

. . . provide[d] the Congress with absolute authority

over the District, broad enough to rectify” the

unfortunate fact that “District residents have been

22

disenfranchised since the District was formally

established.” Id. (citing Statement of Viet D. Dinh).

The Senate did not pass the 2007 bill, but two years

later, the Senate passed a substantially similar bill.

See District of Columbia House Voting Rights Act of

2009, S. 160, 111th Cong. (2009). Like the 2007 House

bill, the 2009 Senate bill also would have created a

Congressional district for the District. Senator Joseph

Lieberman, the lead sponsor of the bill, stated in the

Senate floor debate that “the preponderance of

constitutional opinion is that the so-called District

clause occupies the field and gives us the opportunity

to right this historic wrong.” 17

The House ultimately did not pass the 2009 bill,

but while that bill was under consideration, DOJ

issued opinions addressing its constitutionality.

While recognizing the “exceptionally strong policy

reasons for extending [C]ongressional voting rights to

citizens of the District,” DOJ’s Office of Legal Counsel

(OLC) determined that the proposal was inconsistent

with constitutional provisions that tie House

composition and federal elections to state residency.

Views on Legislation Making the District of Columbia

a Congressional District, 33 Op. O.L.C. 156, 157

(2009).

The Attorney General reached the opposite

conclusion. In a separate opinion, he explained that,

155 Cong. Rec. S2507, S2535 (daily ed. Feb. 26, 2009),

https://perma.cc/3VFR-6AHF; see also id. at S2528 (Statement of

Sen. Russell Feingold) (noting that Congress may exercise its

“power of ‘exclusive legislation’ . . . over the District” to “ensure

that this Government’s just powers are derived from the consent

of the governed”).

17

23

while the bill “presents a close constitutional question,

. . . the balance tips in favor of finding [the] proposed

legislation constitutional.” Constitutionality of the

D.C. House Voting Rights Act of 2009, 33 Op. O.L.C.

38, 38 (2009). Contrary to OLC, the Attorney General

found that “[n]either the text of the Constitution nor

the analysis of applicable precedent clearly” forecloses

Congress’s ability to “confer House voting rights on

D.C. residents by legislation.” Id. at 40. Moreover, he

explained, such legislation “would embody the will of

the people of the United States to extend the franchise

to District citizens.” Id. Thus, the Attorney General

could not “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.” Id.

In recent years, the House has continued its efforts

to put District residents on the same constitutional

footing as residents of the States, including by

ensuring full voting representation for citizens living

in the District. As Congresswoman Norton (who is the

District’s elected Representative, though she lacks

House voting rights that Representatives for the

States enjoy) has recently emphasized, Congress has

the authority to do so because, among other reasons,

the District Clause “gives Congress plenary authority

over the federal district.” See H.R. 51: Making D.C.

the 51st State: Hearing Before the H. Comm. on

Oversight and Reform, 117th Cong. (2021) (Opening

Statement of Congresswoman Eleanor Holmes

Norton).

24

CONCLUSION

For the foregoing reasons, the House urges this

Court to hold that the Constitution grants Congress

the power to enact legislation providing District

residents with the fundamental right to voting

representation in Congress.

Respectfully submitted,

DOUGLAS N. LETTER

General Counsel

Counsel of Record

MEGAN BARBERO

ERIC R. COLUMBUS

LISA K. HELVIN

OFFICE OF GENERAL COUNSEL

U.S. HOUSE OF REPRESENTATIVES

5140 O’Neill House Office Bldg.

Washington, D.C. 20515

(202) 225-9700

douglas.letter@mail.house.gov

April 14, 2021