United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 4, 2005 Decided November 4, 2005

No. 04-5190

JAMES M. BANNER, JR., ET AL.,

APPELLANTS

v.

UNITED STATES OF AMERICA, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 03cv01587)

John W. Nields, Jr. and Walter Smith argued the cause for

appellants. With them on the briefs were Gary S. Thompson and

Carolyn Lamm.

Joseph A. Rieser, Jr. and Joseph R. Price were on the brief

for amici curiae District of Columbia Affairs Section of the

District of Columbia Bar, et al., in support of appellants.

Michael S. Raab, Attorney, U.S. Department of Justice,

argued the cause for federal appellee. With him on the brief

were Peter D. Keisler, Assistant Attorney General, Kenneth L.

Wainstein, U.S. Attorney, and Mark B. Stern, Attorney.

Jerry W. Kilgore, Attorney General, Attorney General’s

Office of the Commonwealth of Virginia, William E. Thro, State

Solicitor General, and Maureen Riley Matsen, Deputy State
2

1Chief Justice Roberts was a member of this court when the case

was briefed and argued and is designated Circuit Justice of this court.

See 28 U.S.C. §§ 42, 43(b). 

2Senior Circuit Judge Edwards was in regular active service at

the time of oral argument.

Solicitor General, were on the brief of appellee Commonwealth

of Virginia.

J. Joseph Curran, Jr., Attorney General, Attorney General’s

Office of the State of Maryland, and Michael D. Berman,

Deputy Chief of Litigation, were on the brief for appellee State

of Maryland.

Before: CHIEF JUSTICE ROBERTS, Circuit Justice,

1

 and

ROGERS, Circuit Judge, and EDWARDS, Senior Circuit Judge.

2

Opinion for the Court filed PER CURIAM.

PER CURIAM: The local government of the District of

Columbia is prohibited by Congress from imposing a “commuter tax” — from taxing the personal income of those who work

in the District but reside elsewhere. Appellants brought suit in

the district court challenging the restriction as unconstitutional.

They argue that the restriction (1) favors Congress’s constituents

in the states and discriminates against the unrepresented

residents of the District, in violation of the equal protection

component of the Fifth Amendment, and (2) contravenes the

Constitution’s requirement that “all Duties, Imposts and Excises

shall be uniform throughout the United States.” U.S. Const. art.

I, § 8, cl. 1. The district court rejected both arguments and

dismissed the complaint. We affirm.

I.

The Constitution gives Congress exclusive legislative

authority in all matters pertaining to the District of Columbia.
3

3Alexandria and District land west of the Potomac River were

returned to Virginia in 1846 because, in the words of Congress,

“experience [had] shown that [the land] has not been, nor is ever likely

to be, necessary for” the seat of government. Act of July 9, 1846, 9

Stat. 35.

U.S. Const. art. I, § 8, cl. 17. Congress has employed this power

in various ways since the District was first incorporated in 1802.

See Adams v. Clinton, 90 F. Supp. 2d 35, 47 n.19 (D.D.C.)

(three-judge court), aff’d, 531 U.S. 941 (2000). The District

initially contained three separate governments for Georgetown,

Washington, and Alexandria. Id.3 In the 1870s, Congress

unified the District government under a three-person commission appointed by the President — a system that prevailed until

1967, when it was replaced with a commissioner and council,

also presidentially appointed. See Reorganization Plan No. 3 of

1967, 81 Stat. 948. In 1973, Congress enacted the present form

of government, known as “home rule,” under which a mayor and

council elected by residents of the District exercise certain

executive and legislative powers delegated by Congress. See

District of Columbia Self-Government and Governmental

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

774 (1973).

Since 1973, Congress has remained closely involved in the

management of the District’s finances. In addition to requiring

enactment of annual appropriations acts for District government

expenditures, the Home Rule Act also provides for an annual

federal payment by Congress to the District in compensation for

“the unusual role of the District as the Nation’s Capital.” §

501(a); see also Comm’n on Budget and Fin. Priorities of the

District of Columbia, Financing the Nation’s Capital, at 1-10 to

-12 (1990). This payment amounted to approximately $660

million per year by the mid-1990s. See Banner v. United States,

303 F. Supp. 2d 1, 5 (D.D.C. 2004). In 1997, Congress repealed

the system of federal payments and began directly subsidizing
4

4An individual who resides in one jurisdiction and earns income

in another normally incurs tax liability in both jurisdictions. Most

states, including Maryland and Virginia, offer credits to residents who

pay income tax in other jurisdictions. Thus, a commuter tax would not

necessarily affect the total tax liability of Maryland and Virginia

residents who work in the District. The state governments themselves,

however, would lose revenue roughly in the amount of the District’s

gain, and would presumably have to make up the shortfall by raising

taxes or cutting spending. See Appellants’ Br. at 7 & n.7.

certain District operations, including Medicaid, the local courts,

and the prison system. See National Capital Revitalization and

Self-Government Improvement Act of 1997, Pub. L. No. 105-

33, 111 Stat. 712.

At issue in this case is one of the terms of the 1973 “home

rule” delegation. The Home Rule Act prohibits the District

Council from imposing “any tax on the whole or any portion of

the personal income, either directly or at the source thereof, of

any individual not a resident of the District.” § 602(a)(5); see

D.C. Official Code § 1-206.02(a)(5) (2001). The provision

prevents the District government from taxing the personal

income of those who work in the District, but reside outside it.

Plaintiffs are several District residents, the Mayor, the

Council of the District of Columbia and its members, and the

District of Columbia itself. Together these individuals and

entities filed suit against the United States challenging the

commuter tax restriction as unconstitutional. They assert that

the restriction discriminates against District residents in favor of

residents from neighboring states, depriving the District of $30

billion annually in taxable non-resident income (or about $1.4

billion in annual tax revenue at present District tax rates).

Compl. ¶¶ 6, 7.4

 As a result, they contend, the District’s fiscal

system labors under a “structural imbalance” — a revenue

shortfall of between $470 million and $1.1 billion annually that
5

5Appellee the Commonwealth of Virginia raises a threshold

challenge to the standing of appellants to invoke the court’s jurisdiction. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94

(1998). The Commonwealth argues that plaintiffs’ injury is neither

sufficiently particularized nor redressible by the relief sought. See

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). The

district court properly disposed of these contentions. The individual

appellants’ claim that they bear a higher tax burden due to a discriminatory tax “is sufficient to establish standing.” Orr v. Orr, 440 U.S.

268, 273 (1979). As to redressibility, while a favorable ruling would

not automatically remove appellants’ burden, relief is sufficiently

likely: the District Council has passed a resolution stating that, absent

the restriction, it would enact an income tax on non-residents. See

would persist “even if the District’s services were managed

efficiently.” Id. ¶ 3 (quoting General Accounting Office,

District of Columbia: Structural Imbalance and Management

Issues 8 (2003)). Plaintiffs claim that this imbalance forces

District residents to bear a higher local tax burden than they

otherwise would. Id. ¶ 7.

The State of Maryland and the Commonwealth of Virginia

intervened in the district court and, along with the federal

defendants, moved to dismiss the complaint. The district court

granted the motion, concluding that “the Constitution and

binding Supreme Court and Circuit precedent establish Congress’ plenary power over the District and its residents and their

unique status within our constitutional framework,” and that the

court “lack[ed] the power to grant the remedy that plaintiffs

seek.” Banner, 303 F. Supp. 2d at 26. Plaintiffs now bring this

appeal. We review de novo the district court’s decision to

dismiss the complaint. See Barr v. Clinton, 370 F.3d 1196, 1201

(D.C. Cir. 2004).

II.

We begin with equal protection.5

 Congress has delegated
6

District Resolution § 2(12); see also Defenders of Wildlife, 504 U.S.

at 561. Because the individual plaintiffs have standing for each claim,

we need not consider the standing of the institutional plaintiffs before

proceeding to the merits. See Animal Legal Def. Fund, Inc. v.

Glickman, 154 F.3d 426, 429 (D.C. Cir. 1998) (en banc). 

to the District the authority to tax the personal income of District

residents; it has withheld such authority to tax non-residents

who work in the District. Appellants argue that this restriction

violates the equal protection component of the Fifth Amendment’s Due Process Clause. See Bolling v. Sharpe, 347 U.S.

497, 498–99 (1954). 

The first issue in equal protection analysis is whether the

distinction drawn by Congress demands heightened scrutiny.

See Hedgepeth v. Wash. Metro. Area Transit Auth., 386 F.3d

1148, 1153 (D.C. Cir. 2004). Strict scrutiny — the most

demanding variety — is warranted if the restriction “jeopardizes

exercise of a fundamental right or categorizes on the basis of an

inherently suspect characteristic.” Nordlinger v. Hahn, 505 U.S.

1, 10 (1992). A less exacting, but still heightened, standard

applies to classifications based on sex. See United States v.

Virginia, 518 U.S. 515, 532 (1996). Otherwise, equal protection

“requires only that the classification rationally further a legitimate state interest.” Hahn, 505 U.S. at 10.

Appellants’ most obvious avenue to heightened scrutiny is

blocked. They do not, and could not, argue that District

residents form a “suspect class” for equal protection purposes.

We have squarely held otherwise. See Calloway v. District of

Columbia, 216 F.3d 1, 7 (D.C. Cir. 2000) (“a panel of this court

may not now depart from the en banc court’s conclusion that

D.C. residents do not comprise a suspect class for equal protection purposes”); United States v. Cohen, 733 F.2d 128, 136 n.12

(D.C. Cir. 1984) (en banc) (rejecting argument that “distinctive

legislative treatment of the District is ‘particularly suspect’ and
7

thus requires more than a rational basis to support it”).

Instead, appellants argue that heightened scrutiny is

required whenever a legislature imposes a tax that favors its

constituents at the expense of persons who are not represented

in the legislature. Br. at 20. They derive this principle from a

line of Supreme Court decisions invalidating state tax laws that

treat non-residents less favorably than residents. See Williams

v. Vermont, 472 U.S. 14 (1985); Metro. Life Ins. Co. v. Ward,

470 U.S. 869 (1985); Austin v. New Hampshire, 420 U.S. 656

(1975); Wheeling Steel Corp. v. Glander, 337 U.S. 562 (1949).

None of these cases, however, applied strict scrutiny. In

Williams and Metropolitan Life — the most recent of appellants’

cases — the Court applied only rational basis review. See 472

U.S. at 22–23; 470 U.S. at 875. Wheeling Steel did not apply

any particular level of scrutiny, likely because it was decided

before the elaboration of equal protection categories of review.

The tax statute in Austin was invalidated only under the Privileges and Immunities Clause of Article IV. See U.S. Const., art.

IV, § 2; Austin, 420 U.S. at 668. That decision therefore neither

prescribes heightened scrutiny for equal protection purposes nor

applies to Congress when it legislates for the District. See Neild

v. District of Columbia, 110 F.2d 246, 249 n.3 (D.C. Cir. 1940)

(Privileges and Immunities Clause is “a limitation upon the

states only and in no way affects the powers of Congress over

the District of Columbia”). If we adhere to the decisions on

which appellants themselves rely, we should consider only

whether the commuter tax restriction “rationally further[s] a

legitimate state interest.” Hahn, 505 U.S. at 10.

Appellants urge that “[r]egardless of the precise standard,

the [Supreme] Court has ultimately struck down all state tax

laws that do not treat unrepresented outsiders equally; whereas,

tax laws discriminating against a State’s own residents — who

are represented — are upheld.” Br. at 27. In Metropolitan Life,

for example, the Court held unconstitutional an Alabama statute
8

6For this proposition, appellants also lean heavily on a concurrence by Justice Brennan in Allied Stores of Ohio, Inc. v. Bowers, 358

U.S. 522 (1959), in which the Court sustained an Ohio law exempting

certain non-resident personal property from taxation. Justice Brennan

sought to distinguish the Ohio law from a similar law treating nonresidents less favorably that the Court had previously struck down. As

the district court recognized, Banner, 303 F. Supp. 2d at 13, a “fair

reading” of the concurrence reveals that the distinction lay not in any

special concern about non-residents’ lack of representation in the

legislature, but in equal protection’s role in “protect[ing] our federalism,” Allied Stores, 358 U.S. at 533. A law favoring non-residents,

the concurrence observed, “clearly presents no state action disruptive

of the federal pattern.” Id. The same concern about discrimination

“disruptive of the federal pattern” does not arise when Congress, “as

a legislature of national character,” Neild, 110 F.2d at 250, exercises

its authority over the District.

that taxed premiums paid to in-state insurance companies at a

lower rate than premiums paid to out-of-state companies. Equal

protection, the Court ruled, does not permit a state “constitutionally [to] favor its own residents by taxing foreign corporations at a higher rate solely because of their residence.” 470

U.S. at 878. Appellants generalize this holding to cover all “tax

laws discriminating in favor of a legislature’s constituents,”

including cases where Congress legislates in a manner that

discriminates against the unrepresented residents of the District.

Br. at 28.6

Even assuming that Metropolitan Life and similar cases can

fairly be read for this broader principle, appellants’ reasoning

encounters a major difficulty. The Constitution grants Congress

authority “[t]o exercise exclusive Legislation in all Cases

whatsoever, over such District (not exceeding ten Miles square)

as may, by Cession of particular States, and the Acceptance of

Congress, become the Seat of the Government of the United

States.” U.S. Const. art. I, § 8, cl. 17. Congress, when it
9

legislates for the District, stands in the same relation to District

residents as a state legislature does to residents of its own state.

See Mercury Press v. District of Columbia, 173 F.2d 636, 637

(D.C. Cir. 1948) (Congress legislates for the District “in like

manner as the legislature of a state” (quoting Gibbons v. District

of Columbia, 116 U.S. 404, 407 (1886))). “Not only may

statutes of Congress of otherwise national application be applied

to the District of Columbia, but Congress may also exercise all

the police and regulatory powers which a state legislature or

municipal government would have in legislating for state or

local purposes.” Palmore v. United States, 411 U.S. 389, 397

(1973).

This is true notwithstanding that the Constitution denies

District residents voting representation in Congress. See Adams,

90 F. Supp. 2d at 72. Indeed, appellants’ claim amounts to little

more than a collateral challenge to the District’s lack of representation. They argue that because District residents are not

represented in Congress, Congress’s real constituents reside in

the states. Therefore, the argument goes, actions by Congress

that favor those constituents over District residents should be

deemed suspect. The suggestion is that District residents stand

in the same relation to Congress as, say, residents of New York

to New Jersey’s state legislature — just as New York’s residents

are not represented in New Jersey’s legislature, District residents

are not represented in Congress. This argument misses the

special character of the District under the Constitution. Congress is not a foreign sovereign government in relation to the

District, as the New Jersey legislature is to New York; Congress

is the District’s government, see U.S. Const. art. I, § 8, cl. 17,

and the fact that District residents do not have congressional

representation does not alter that constitutional reality.

Given Congress’s control over the District, appellants must

in effect contend that in enacting the commuter tax restriction,

Congress has improperly preferred its role as the national
10

legislature to its role as the local one for the District. But in this,

their dispute lies with the plan of the Constitution and the

judgment of its Framers. The evident purpose of granting

Congress authority over the District was to provide the federal

government a place where it would not be harassed or neglected

by local interests. See The Federalist No. 43 (James Madison);

2 Joseph Story, Commentaries on the Constitution of the United

States § 1219 (5th ed. 1891) (suggesting that Pennsylvania’s

refusal to defend the Continental Congress from an angry crowd

of disbanded but unpaid Revolutionary War soldiers ultimately

led to inclusion of the District Clause). The Framers would

naturally have expected that where tensions between local and

national interests arose, they could be resolved by Congress with

due consideration for the latter. See Cohens v. Virginia, 19 U.S.

(6 Wheat.) 264, 429 (1821) (Marshall, C.J.) (“Congress is not a

local legislature, but exercises this particular power, like all its

other powers, in its high character, as the legislature of the

Union. The American people thought it a necessary power, and

they conferred it for their own benefit.”).

Of course, none of this is to say that Congress can legislate

for the District without regard to other constitutional constraints.

See Palmore, 411 U.S. at 397. For example, a law employing a

suspect classification is hardly immune from close scrutiny

because it applies only to the District. But it is to say that there

is nothing inherently suspect in the prospect that Congress might

give decisive weight to national rather than local considerations

when it legislates for the District. The very point of having a

national capital area subject to congressional rather than state

control was to allow Congress to do just that. Appellants’

structural bias argument does not, therefore, support heightened

scrutiny under the equal protection component of the Fifth

Amendment.

Under rational basis review, the commuter tax restriction

must be sustained “if any state of facts reasonably may be
11

conceived to justify it.” Sullivan v. Stroop, 496 U.S. 478, 485

(1990) (citation omitted). This is not hard to do, and appellants

in effect concede the point by acknowledging that a state could

constitutionally enact a similar restriction. See Banner, 303 F.

Supp. 2d at 15. Congress may have been concerned that a

commuter tax would cause District businesses to relocate to

nearby Maryland and Virginia, where income tax rates are

generally lower. See Allied Stores, 358 U.S. at 528–29 (under

Equal Protection Clause, a state may properly provide incentives

for non-residents to do business within its borders). Or it may

have decided that the enhanced burden of financing the District’s operation should fall on the nation at large, rather than on

the residents of neighboring states. These need not have been

the actual motives behind the restriction, see id. at 528, for their

plausibility alone is enough to sustain it under rational basis

review.

III.

The Constitution gives Congress the “Power To lay and

collect Taxes,” but requires that “all Duties, Imposts and Excises

shall be uniform throughout the United States.” U.S.Const. art.

I, § 8, cl. 1. Appellants argue that the commuter tax restriction

violates the uniformity requirement because Congress has

prohibited a non-resident income tax only in the District, and

nowhere else, and has done so “to benefit other portions of the

country — most particularly, Maryland and Virginia.” Br. at 36.

The Uniformity Clause is not exactly well-trodden constitutional terrain. The Supreme Court has observed that the records

of the Constitutional Convention shed only scattered light on its

meaning and scope, see United States v. Ptasynski, 462 U.S. 74,

80–81 & n.10 (1983), and even until the turn of the last century

it was not settled that the clause referred only to geographical

uniformity. See Knowlton v. Moore, 178 U.S. 41 (1900)

(settling the matter). Nevertheless, its purpose has been divined

from the Framers’ concern that Congress “would use its power
12

over commerce to the disadvantage of particular States.”

Ptasynski, 462 U.S. at 81; see also Knowlton, 178 U.S. at

103–05.

A special problem arises in applying the Uniformity Clause

not to Congress’s interstate commerce power, but to its authority

over the District and other territories that it governs directly. In

such instances it has been understood that Congress may impose

local taxes without running afoul of the Clause. See Mercury

Press, 173 F.2d at 637 (“It has long been established that

Congress may constitutionally impose excises in the territories

which it governs directly, without making such excises generally

applicable to the country at large.”). This makes sense. If, in

governing the District, Congress can “exercise all the police and

regulatory powers which a state legislature or municipal

government would have in legislating for state or local purposes,” Palmore, 411 U.S. at 397, it undoubtedly has the

authority to enact taxes for the District alone, just as a state

could. See Gibbons, 116 U.S. at 407–08 (Congress has power

“to levy taxes for District purposes only, in like manner as the

legislature of a State may tax the people of a State for State

purposes”). The taxes Congress may assess in the District could

hardly be “uniform throughout the United States,” and still

function as the equivalent of state taxes. Given Congress’s

authority under the District Clause, the Uniformity Clause

would appear to have little relevance to Congress’s local

taxation of the District.

The Supreme Court has, however, applied the Uniformity

Clause in a related context. In Binns v. United States, 194 U.S.

486 (1904), the Court considered a challenge to a

congressionally-enacted license tax for the territory of Alaska.

The basis for the challenge was the fact that revenues from the

tax were paid to the federal treasury rather than to a treasurer for

the Alaskan territory. The Court observed that the tax’s

“constitutionality would be clear” if it were paid directly to a
13

local treasurer, id. at 492, but nevertheless saw no problem in

having the revenues instead paid to the federal treasury, provided that the tax’s purpose was to raise revenue for Alaska and

“the total revenues derived from Alaska are inadequate to the

expenses of the Territory.” Id. at 494–95.

The Court in Binns seems to have understood a local tax on

a territory to pose no Uniformity Clause problem as long as it

does not cloak a kind of mercantilist policy toward the territory.

Thus the Court advised — in dictum never since revisited by the

Court — that its ruling “must not be extended to any case, if one

should arise, in which it is apparent that Congress is, by some

special system of license taxes, seeking to obtain from a territory

of the United States revenue for the benefit of the nation.” Id.

at 496.

The commuter tax restriction at issue here, of course, does

not fit within the letter of this cautionary dictum from Binns. It

is not a “system of license taxes,” but a limitation on Congress’s

delegation of taxing authority to the local District government.

It does not generate surplus tax revenue beyond the needs of the

District “for the benefit of the nation.” Far from it: the restriction itself, which exempts certain income from taxation, raises

no revenue at all.

Appellants argue, however, for a broader reading of Binns.

According to them, Binns stands for the proposition that “when

Congress purports to act as a local legislature but in fact acts in

part for a national purpose, its action is subject to the limitations

of the Uniformity Clause.” Br. at 40. Here, they contend,

“Congress has enacted a Prohibition on taxes in the District in

order to produce revenues not for the District — but for other

parts of the Nation.” Id. at 38. In doing so, Congress has

“preferr[ed] the States at the expense of the District,” id. at 37,

because the restriction leaves more income to be taxed by the

states and less for the District.
14

There is good reason, however, not to read Binns so

expansively. Appellants’ reading is inconsistent with Congress’s constitutional authority over the District. If congressional legislation for the District were scrutinized merely because

it had the effect of “preferring the States at the expense of the

District,” Br. at 37, Congress’s authority over the District would

be much less substantial than the power “[t]o exercise exclusive

Legislation in all Cases whatsoever” granted to it by the

Constitution. U.S. Const. art. I, § 8, cl. 17. Even routine

instances of that authority might be called into question. Indeed,

in financing the District, Congress necessarily faces a choice

between using revenues from local taxation and general

revenues, i.e., revenues largely derived from the states. Any

decision to rely more on the former would seem to implicate

appellants’ reading of Binns. For example, if Congress were to

cease funding the local courts, thereby requiring the District

government to fund them by raising taxes, Congress could be

said “to relieve its constituents at the expense of District residents,” Br. at 38, and thus act in violation of the Uniformity

Clause. We see no reason to adopt a reading of Binns so in

tension with Congress’s constitutional authority over the

District.

The commuter tax restriction is more properly viewed as

simply an aspect of Congress’s authority to levy local taxes on

the District and therefore entirely consistent with the Uniformity

Clause. Congress has delegated to the District government the

power to levy an income tax while restricting the kinds of

income the District may tax. The arrangement is no different

from Congress determining how to treat various types of income

in the course of imposing an income tax itself. Governments

often must decide, as Congress has here, how to treat revenue

sources on which another jurisdiction may have a claim. See,

e.g., D.C. Official Code § 47-1809.01 (2001) (residency

definitions for tax on estates and trusts); id. § 47-3703 (tax on

transfer of taxable estate of non-residents). If Congress has the
15

authority to impose local taxes on the District — and it does, see

Mercury Press, 173 F.2d at 637 — it surely can make such

determinations in the course of exercising that authority.

The fact that no state currently exempts all non-resident

income from its income tax is of no consequence. Any state

could do so tomorrow, see Allied Stores, 358 U.S. at 530: would

Congress then have the power to enact the commuter tax

restriction? Congress’s authority over the District is not so

precarious. It is enough that the power Congress has exercised

here within the District is one that “the legislature of a State

might exercise within the State.” Palmore, 411 U.S. at 397

(internal quotation marks omitted) (emphasis added). As such,

the restriction does not violate the Uniformity Clause.

* * *

It is beyond question that the Constitution grants Congress

exclusive authority to govern the District, but does not provide

for District representation in Congress. That constitutional plan

does not require heightened scrutiny of congressional enactments affecting the District. The policy choices are Congress’s

to make; we hold simply that the commuter tax restriction does

not violate equal protection or the Uniformity Clause of the

Constitution. The judgment below is

Affirmed.