b'May 18, 1978\n\n78-29\n\nMEMORANDUM OPINION FOR THE COUNSEL\nTO THE PRESIDENT\nDepartment of Energy\xe2\x80\x94 Vacancies (42 U.S.C.\n\xc2\xa7 7342)\xe2\x80\x94 Vacancy Act (5 U.S.C. \xc2\xa7\xc2\xa7 3345-3349)\xe2\x80\x94\nDe Facto Officers\n\nThis responds to your request for our opinion concerning the legality o f the\ndesignation o f certain acting officials by the Secretary of Energy.\nThe Department o f Energy was established by the Department o f Energy\nOrganization Act o f August 4, 1977, Pub. h . No. 95-91, 91 Stat. 565, 42\nU .S.C . \xc2\xa7 7101 et seq. (Act) involving a merger of the Federal Energy\nAdministration (FEA), the Energy Research and Development Administration\n(ERDA), and the Federal Power Com m ission, and including the transfer o f\ncertain functions to the new Department from several other Government\nagencies (Title III o f the Act). W hen the Department became operative on\nOctober 1, 1977, pursuant to Executive Order No. 12009, 42 F.R . 4267\n(1977), the Secretary was the only officer required to be appointed by and with\nthe advice and consent of the Senate, who had been confirmed. The President\nfilled eight other positions that required Senate confirmation, on a temporary\nbasis pursuant to \xc2\xa7 902 o f the Act, 42 U .S.C . \xc2\xa7 7 3 4 2 .1 He designated officers\nof the predecessor agencies, who had been appointed by and with the advice\nand consent o f the Senate and who had held those positions immediately prior\nto the effective date o f the A ct,2 to perform the duties o f the vacant Department\nof Energy offices to which they were assigned.\n\'S ec tio n 902 pro v id es:\n\xe2\x80\x9c In the e v en t th at o n e o r m o re o ffice rs re q u ire d by th is A ct to be a p p o in te d by an d w ith\nthe ad v ice an d c o n se n t o f th e S en a te shall not h a v e e n te re d u p on o ffic e on the effe c tiv e\nda te o f th is A ct [O c to b e r 1, 1977] th e P resid e n t m ay d e sig n a te any o ffic e r, w h o se\na p p o in tm e n t w as re q u ire d to be m a d e , by an d w ith th e ad v ice and c o n se n t o f the S e n a te ,\nand w h o w as su ch an o ffic e r im m e d ia te ly p rio r to th e effe c tiv e da te o f the A c t, to act in\nsu ch o ffice until th e o ffice is filled as p ro v id e d in th is A ct. W h ile so actin g such p e rso n s\nshall receiv e c o m p e n sa tio n at th e rates p ro v id e d by th is A ct fo r the re sp ec tiv e o ffice s in\nw hich th ey a c t .\xe2\x80\x9d\n2Section 703 o f the A c t, 4 2 U .S .C . \xc2\xa7 7 2 9 3 , term in ated the p re d e ce sso r ag en cies o f the D e p art\xc2\xad\nm ent o f E n erg y an d th e a d v ice an d c o n se n t o ffic e s in th o se a g en c ie s as o f the d a te w hen\nthe D epartm en t o f E n e rg y b e ca m e o p e ra tiv e .\n\n113\n\n\x0cFor four positions\xe2\x80\x94 the offices o f General Counsel, Inspector General,\nAssistant Secretary for Conservation and Solar Applications, and Assistant\nSecretary for Energy Technology\xe2\x80\x94 we were advised by officials at the\nDepartment o f Energy that no officers were available in the predecessor\nagencies who had been appointed by and with the advice and consent of the\nSenate. We were also informed that, since Presidential designations under\n\xc2\xa7 902 from personnel o f the predecessor agencies were not possible, the other\nfour positions were filled by the Secretary o f Energy designating the Acting\nGeneral Counsel, the Acting Inspector General of the Federal Energy Adminis\xc2\xad\ntration, the Acting Adm inistrator for Solar, Geothermal, and Advanced Energy\nSystems, and the Acting Administrator for Nuclear Energy of ERDA to\nperform the duties o f the respective vacant offices on an acting basis. The\nActing Assistant Secretary for Defense Programs, who was one of the officers\ndesignated by the President pursuant to \xc2\xa7 902 o f the Act, resigned effective\nJanuary 1, 1978. The Secretary thereupon designated the Acting Assistant\nSecretary\xe2\x80\x99s deputy to act in his place.\nThe President submitted nominations to the Senate for four of the eight\npositions requiring Senate confirm ation.3 He indicated his intention to nomi\xc2\xad\nnate an Assistant Secretary for Defense Programs, but, as of this writing, no\nsuch nomination has been formally submitted to the Senate. The nominees for\nthe positions o f General Counsel, Inspector General, and Assistant Secretary\nfor Energy Technology were recently confirmed by the Senate. Their appoint\xc2\xad\nments are imminent, in which event the designation of the acting officials will\nterminate. The Acting A ssistant Secretary for Energy Technology designated\nby the Secretary was the only acting official nominated by the President to the\nsame position.\nI.\nThe authority o f the remaining five officers to act under secretarial\ndesignation has been questioned on the ground that it is inconsistent with \xc2\xa7 902,\nsupra. It is asserted that \xc2\xa7 902 establishes the exclusive manner in which\ninterim appointments to fill initial vacancies in the Department of Energy may\nbe made. We disagree. Concededly, \xc2\xa7 902 was designed to give the President\nthe authority to make interim designations in the Department of Energy where\npossible, but we doubt that Congress intended to tie his hands and compel him\nto make what could be unsuitable designations to the detriment of the\nnewly established Department, or to preclude any other method to fill those\npositions.\n\n3T h e n o m in a tio n s w ere a s fo llo w s: A ssista n t S e c re ta ry fo r E n e rg y T e c h n o lo g y , S e p te m b e r 13,\n1977, re su b m itte d J a n u a ry 2 6 , 1978; G e n e ra l C o u n se l, S e p te m b e r 22 , 1977, re su b m itte d Jan u a ry\n25, 1978; A ssista n t S e c re ta ry fo r C o n se rv a tio n an d S o la r A p p lic a tio n s, J an u a ry 2 5 , 1978; In sp ecto r\nG e n e ra l, A p ril 2 0 , 1978.\n\n114\n\n\x0cThere is no legislative history to guide us concerning the scope of \xc2\xa7 902.\nHowever, the statutory language, \xe2\x80\x9c the President may designate any officer,\xe2\x80\x9d\nindicates that the section was intended to confer on the President a discretionary\npower to be exercised in conformity with the statutory spirit and purpose, rather\nthan a binding and exclusive method of appointment.\nWhen Congress provided for the establishment of the Department of Energy,\nit was a reasonable assumption that officials on the Assistant Secretary level,\nrequiring Senate confirmation, would hold positions requiring highly specialized\ntechnical expertise, and that some o f the nominations to those positions would\ngo to persons who had held corresponding advice and consent positions in some\nof the predecessor agencies of the Department. At the same time, it was\nreasonable to expect that some o f the nominations might not be acted upon by\nthe time \'the Department became operative. The question of effectively\nproviding for interim appointments was one that could not be ignored.\nThe existing procedures provided for in the Vacancy Act, 5 U .S.C .\n\xc2\xa7\xc2\xa7 3345-3349, were not adapted to initial vacancies in a newly established\ndepartment o f the character of the Department of Energy. Section 3346\nprovides that in the case of a vacancy in a bureau o f an Executive department4\nthe first assistant shall act unless the President makes a designation under\n\xc2\xa7 3347. It is difficult to envisage a \xe2\x80\x9c first assistant\xe2\x80\x9d before there is an Assistant\nSecretary.5 Section 3347 provides an alternative method of filling a vacancy.\nThe President can designate a department head or any other officer appointed\nby and with the advice and consent of the Senate to perform the duties of the\nvacant office. That procedure, however, was unsuited to the situation confronting\nthe Department o f Energy for several reasons.\nAs mentioned above, \xc2\xa7 703 o f the Act terminated, as o f the date when the\nDepartment became operative, its predecessor agencies and the positions in\nthose agencies that were either expressly authorized by law or compensated\naccording to the Executive Schedule. Since the officers in those agencies who\nhad been appointed by and with the advice and consent o f the Senate, lost that\nstatus under \xc2\xa7 703 o f the Act, the President could not designate them as acting\nofficers under \xc2\xa7 3347. If. \xc2\xa7 3347 were controlling, his choice would have been\nlimited to those already serving in advice and consent positions in other\nagencies. This would mean not only that it would be extremely difficult to find\nacting officers possessing the necessary technical qualifications for the highly\nspecialized positions in the Department of Energy, but that, even then, the\ndesignees could only perform those duties on a part-time basis.\nTemporary filling o f positions on the Assistant Secretary level by persons\nwho both lacked the necessary expertise and could not devote their entire time\nto the new positions could readily have presented difficulties for the new\n\n4A d ep artm e n tal u n it h e ad e d b y an A ssista n t S e c re ta ry o r c o m p a ra b le o ffic e r n o rm a lly\nc o n stitu tes a b u reau .\n\xe2\x80\x99 M o re o v er, the A tto rn e y G e n e ra l has in te rp rete d th e te rm \xe2\x80\x9c first a ss is ta n t\xe2\x80\x9d as a p p ly in g o n ly to\no fficials w h o se a p p o in tm e n t h as b e en sp e c ific a lly p ro v id e d fo r b y statu te. 1 9 0 p . A G . 5 0 3 (1 8 9 0 ) ;\n28 O p. A .G . 95 (1 9 0 9 ).\n\n115\n\n\x0cDepartment during the crucial first months of its existence. Moreover, under\nthe Vacancy Act ad interim designations could last for only 30 days.\nExperience amply demonstrates that under present conditions, Senate confirma\xc2\xad\ntion frequently takes longer than that.6\nIn our view, \xc2\xa7 902 was designed by the Congress to avoid Vacancy Act\nproblems by enabling the President to make ad interim designations of\nexperienced officials of the predecessor agencies who could serve on a full-time\nbasis even if they no longer held advice and consent positions, and to permit\nthem to serve more than 30 days if necessary. The last sentence of \xc2\xa7 902\nindicates that Congress envisaged that the interim designations under that\nsection would primarily be given to former advice and consent officers who had\nserved in the predecessor agencies. The acting official would receive compen\xc2\xad\nsation at the rate provided by the Act for the office in which he would serve on\nan acting basis. It was, we believe, intended to take care of the following\nproblem: The designee originally was an advice and consent official in a\npredecessor agency and as such received his compensation under Executive\nSchedule, 5 U .S.C . \xc2\xa7\xc2\xa7 5311-5316. When the President designated him to be an\nacting official, he was no longer an advice and consent officer because \xc2\xa7 703 of\nthe Act had abolished his former position; hence, he would have to be\nappointed to a position that did not require Senate confirmation and which\ncarried a lower rate o f com pensation.7 Section 5535 of title 5 prevents an acting\nofficial from receiving compensation in addition to that of his regular position.\nThe last sentence o f \xc2\xa7 902 thus has the effect o f avoiding a reduction in\ncompensation during the confirmation proceedings.\nIn short, \xc2\xa7 902 is specifically addressed to the situation in which the\nPresident intended to appoint an advice and consent officer of a predecessor\nagency o f the Department o f Energy to a corresponding position in that\nDepartment, but confirm ation prior to the activation o f the Department was\nremote.\nSection 902 was not a complete solution, however. When the Department of\nEnergy became operative, it appeared that there was no suitable advice and\nconsent officer, either in a predecessor agency or elsewhere, whom the\nPresident could designate to serve full time in an acting capacity in the several\nadvice and consent positions in the Department of Energy. If such officers had\nbeen available, undoubtedly the President would have resorted to the authority\ngiven him by \xc2\xa7 902.\nA mechanistic interpretation of \xc2\xa7 902 leads to a result that is so extreme we\ncannot attribute it to the Congress. It would mean that the President was\nrequired to designate an advice and consent officer, presumably from another\nagency, regardless o f his qualifications and expertise and his ability to devote\nhim self full time to the office, or he could make no designation to the office at\n\n6In the situ a tio n a t h a n d , th e c o n firm a tio n o f th e G e n e ra l C o u n se l a n d o f the A ssistant S ecretary\nfo r E n e rg y T e c h n o lo g y to o k a b o u t 7 m o n th s.\n1I.e ., at a su p e rg ra d e , ra th e r th a n in th e E x e c u tiv e S c h e d u le u su ally a p p lic ab le to p o sitio n s at the\nA ssista n t S e c re ta ry level.\n\n116\n\n\x0call. Either alternative would be inconsistent with the legislative purpose of\n\xc2\xa7 902 that vacancies in the Department of Energy were to be filled during the\ncritical first months of its existence on a full-time basis by officials who\npossessed the necessary expertise. To interpret \xc2\xa7 902 as providing the exclusive\nmethod of filling initial vacancies is inconsistent with its discretionary language\nand would defeat its purpose. It is a familiar axiom of construction that a statute\nis not to be interpreted in a manner at variance with its policy and purpose.\nUnited States v. American Trucking Associations, Inc., 310 U.S. 534, 543\n(1940); United States v. Biscaglia, 420 U.S. 141, 149-150 (1975).\nII.\nWe therefore conclude that \xc2\xa7 902 was not intended to establish the sole\nmethod of filling vacancies in the Department of Energy. The President would\nhave utilized that provision if all its underlying premises could be met, i.e ., if\nqualified advice and consent officers were available who could devote\nthemselves full time to the acting position. We do not believe that the section is\nto be construed to mean that such vacancies may not be filled at all on a\ntemporary basis, if no advice and consent officers were available.\nHaving disposed of the question of the Vacancy Act, we believe that the\nSecretary of Energy could only resort to his general powers and responsibili\xc2\xad\nties, including those under 5 U .S.C . \xc2\xa7 301,8 which he did by designating the\nmost experienced officials in the departmental subdivisions in which vacancies\nexisted. That procedure, while not specifically authorized by \xc2\xa7 902, would\ncarry out what we regard as its purpose\xe2\x80\x94 that the vacancies should be filled by\nqualified persons on a full-time basis. To keep the Government running calls\nfor the designation of acting officials to fill vacancies in the absence of express\nstatutory authority, see, Williams v. Phillips, 482 F. (2d) 669, 670-671 (D.C.\nC ir., 1973). Sim ilar considerations should be applicable where the strict\nrequirements of the pertinent statute cannot be met due to unforeseen\ncircumstances.\nIn Phillips the court, however, stated that such extrastatutory designations\ncould not last indefinitely unless nominations were submitted to the Senate\nwithin a reasonable time. It suggested that the 30-day provision of the\nVacancy Act, 5 U .S.C . \xc2\xa7 3348, should serve as a guideline; hence, the\ndesignee in question was no longer entitled to hold his position when no\nnomination had been submitted for more than 4 months after the vacancy\n\n8S ectio n 301 p ro v id es:\n\xe2\x80\x9c T h e h e ad o f an E x e c u tiv e d e p a rtm e n t o r m ilitary -d e p a rtm e n t m ay p re scrib e\nreg u latio n s fo r th e g o v e rn m e n t o f h is d e p a rtm e n t, th e co n d u ct o f its e m p lo y e e s , the\nd istrib u tio n an d p e rfo rm an c e o f its b u s in e s s , an d th e c u sto d y , u se, and p re serv atio n o f its\nre c o rd s, p a p e rs, an d p ro p e rty . T h is sec tio n d o e s n o t a u th o riz e w ith h o ld in g in fo rm atio n\nfrom the p u b lic o r lim itin g the a v a ila b ility o f re c o rd s to th e p u b lic ."\n\n117\n\n\x0chad occurred.9 If the Phillips decision is used as a guideline, the designations\nby the Secretary of the Acting General Counsel and the Acting Assistant\nSecretary for Energy Technology met the requirements of that decision. The\nnominations for the two offices were submitted to the Senate in September\n1977, i.e ., even before the Department of Energy was activated. Their\nextended acting service has been due exclusively to delay in the confirmation\nprocess.\nThe case o f the Acting Assistant Secretary for Conservation and Solar\nApplications is perhaps not so clear, since a nomination for that office was\nsubmitted to the Senate only on January 25, 1978, nearly 4 months after the\nvacancy occurred. However, the reasonableness of the delay in submitting a\nnomination must also be measured against the difficulty of finding suitable\ncandidates for the complex and responsible positions in the Department of\nEnergy and the uncertainties created by delays in the enactment of the pending\nenergy legislation. M oreover, it should be noted that the delay in the\nnomination included the period from December 15, 1977, to January 19,1978,\nduring which the Senate was in recess between the two sessions of the 95th\nCongress and during which no nominations could be made. Similar observa\xc2\xad\ntions also apply to the offices o f the Assistant Secretary for Defense Programs\nand the Inspector General.\nIII.\nWe turn to the legality of the actions taken by Department of Energy officials\nin an acting capacity, if it should be thought that some or all of them did not\nhold their positions de ju re. Under the de fa cto officer rule, one who performs\nthe duty o f an office under color of title is considered a de facto officer, his acts\nare binding on the public, and third persons may rely on their legality.\nM cDowell v. United States. 159 U .S. 596, 601-602 (1895); United States v.\nRoyer, 268 U .S. 394 (1925); United States v. Lindsley, 148 F. (2d) 22, 23 (7th\nCir. 1945), cert, denied, 325 U .S. 858. Indeed, the authority of de facto\nofficers can normally be challenged only in special proceedings in the nature of\nquo warranto brought directly for that purpose. United States ex rel. D orr v.\nLindsley, supra; U nited States v. Nussbaum , 306 F. Supp. 66, 68-69 (N.D.\nC al., 1969); M echem, Public Office and Officers, \xc2\xa7\xc2\xa7 343, 344 (1890).\nThe basis for the de fa c to officer principle is the avoidance o f any cloud on\nthe validity o f public acts and on the right o f the public to rely on them despite\nsubsequent questions as to the authority of the officer to exercise the powers of\nthe o ffice.10 A typical case o f a de fa cto officer is one who continues to serve\n\n9A n a g g ra v atin g e le m e n t in th e Phillips c ase w as th a t th e a ctin g o ffic e r w as c h a rg e d w ith see k in g\nto im p a ir th e o p e ra tio n o f th e a g e n c y . T h a t c o n sid e ra tio n is a b se n t in the c ase at h and. T o the\nc o n tra ry , the p u rp o se o f th e d e sig n a tio n s h e re w as m a d e in o rd e r to fu rth e r the a d m in istra tio n o f\nthe A ct an d to c o m p ly w ith th e sp irit o f \xc2\xa7 9 0 2 .\n\' \xe2\x80\x9cA n o th e r ra tio n a le fo r th e ru le is th a t o n e sh o u ld n o t b e a b le to s u b m it his c a s e to an o ffic e r and\na cc e p t h is ru lin g if it is fa v o ra b le , b u t c h a lle n g e th e o ff ic e r\xe2\x80\x99s a u th o rity if the ru lin g is u n fa v o ra b le .\nGlidden Company v. Zdanok, 3 7 0 U .S . 5 3 0 , 5 3 5 (1 9 6 2 ).\n,\n\n118\n\n\x0cafter his term of office has expired. See, Waite v. Santa Cruz , 184 U.S. 302,\n322-324 (1902); United States v. Groupp, 333 F. Supp. 242, 245-246 (D.\nMaine 1971), a ffd , 459 F. (2d) 178, 182 n. 12 (1st Cir. 1972). This\nconsideration is of particular importance in view of the position of the Court of\nAppeals in Phillips that the initially valid designation of an acting official may\nbe vitiated by an excessive delay in the submission of a nomination.\nIV.\nFinally, the question has been raised whether some of the acting officials\nhave received the compensation for the position in which they act pursuant to\nthe last clause of \xc2\xa7 902. We have been advised by the Department of Energy\nthat these acting officials have not been compensated at the Executive level\nrates provided in \xc2\xa7 902, but rather have been paid the appropriate compensation\nunder the General Schedule salary scale which applies to positions in the\nexcepted service.\nV.\nWe have read the opinion of the Acting Comptroller General dated May 16,\n1978, addressed to this problem. We agree with it to the extent that it concludes\nthat the Vacancy Act is inapplicable to the situation at hand by its own terms.\nWe disagree, however, with his result. The opinion ignores the considerations\nwe have found decisive. The Acting Comptroller General has concluded that\n\xc2\xa7 902 provides the exclusive method for making interim appointments at the\nDepartment of Energy, but has not addressed the factors which have led us to a\ncontrary conclusion. The nonmandatory language of the section, the absence\nof guiding legislative history, and its plain purpose convince us that Congress\ndid not intend to make it an exclusive method. Section 902 was written into the\nlaw because Congress believed that advice and consent positions in the\nDepartment of Energy should not remain vacant during the crucial initial\nmonths, and that interim designations should be given to persons having the\nrequisite expertise and who could serve on a full-time basis.\nJo h n M . H\n\narm on\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n119\n\n\x0c'


b"November 6, 1978\n\n78-97\n\nMEMORANDUM OPINION FOR THE ASSISTANT\nTO THE PRESIDENT FOR DOMESTIC AFFAIRS\nAND POLICY\nEnrolled Bills\xe2\x80\x94 Effect of Order of Approval by the\nPresident\xe2\x80\x94Revenue and Energy Tax Acts of 1978\n(26 U.S.C. \xc2\xa7 46)\n\nThis responds to the inquiry o f your office concerning the effect of the\nPresident\xe2\x80\x99s contemplated order o f signing on provisions of the Revenue Act of\n1978 (Revenue Act) and o f the Energy Tax Act o f 1978 (Energy Act) relating to\nthe 10 percent investment tax credit on certain depreciated property. Because\nthe Revenue Act extends the 10 percent rate indefinitely by rewording \xc2\xa7 46(a)\n(2) (B) of the Internal Revenue Code o f 1954, 26 U .S.C . \xc2\xa7 46(a) (2) (B) (1976),\nwhich Congress had already amended in the Energy Act, the President\xe2\x80\x99s\napproval o f the two bills in either order will necessarily result in the revision of\n\xc2\xa7 46(a) (2) (B), as provided in the Revenue Act, and will extend the 10 percent\ncredit indefinitely. (A chart is appended to this opinion to facilitate understand\xc2\xad\ning o f the successive revisions of the Internal Revenue Code.)\nSection 38 of the Internal Revenue Code of 1954, 26 U .S.C . \xc2\xa7 38 (1976),\nprovides for an investment tax credit with respect to certain depreciable\nproperty. The amount o f the credit allowed is determined by \xc2\xa7 45 of the Code.\nAs originally enacted in 1954, the general rate permitted for qualified property\nwas 7 percent. 28 U .S.C . \xc2\xa7 46(a) (1) (current version at 26 U .S.C. \xc2\xa7 46(a) (2)\n(1976)).\nIn 1975, Congress amended \xc2\xa7 46 to raise temporarily the general investment\ntax credit from 7 percent to 10 percent. Tax Reduction Act of 1975, \xc2\xa7 301(a),\nPub. L. 94-12, 89 Stat. 26, 36 (1975). Under \xe2\x80\x9c transitional rules\xe2\x80\x99\xe2\x80\x99 added to \xc2\xa7 46\nby \xc2\xa7 301(a) of the 1975 Act, 26 U .S.C . \xc2\xa7 46(a) (1) (D) (current version at 26\nU.S.C . \xc2\xa7 46(a) (2) (D) (1976)), the 10 percent credit applied, in general, to\nqualified investments made prior to January 1, 1977.\nIn 1976, Congress enacted a major revision o f \xc2\xa7 46. Subsection 46(a) (1) (D)\nbecame \xc2\xa7 46(a) (2) (D), and was amended to extend the general 10 percent\ncredit to qualified investments made prior to January 1, 1981. Tax Reform Act\nof 1976, \xc2\xa7 802(a), Pub. L. 94-455, 94 Stat. 1520, 1580 (1976).\n422\n\n\x0cOn October 14, 1978, both Houses o f Congress passed a conferenceapproved version of the Energy Tax Act of 1978, H.R. 5263, 95th C ong., 2d\nsess. Section 301(a) of the bill again effects a major amendment o f \xc2\xa7 46, but its\nversion of subsection 46(a) (2) (D), which would become \xc2\xa7 46(a) (2) (B), would\nstill result in a drop of the regular business investment credit rate from 10\npercent to 7 percent on December 31, 1980.\nCongress several hours later again amended \xc2\xa7 46 in passing the Revenue Act\nof 1978, H.R. 13511, 95th C ong., 2d sess.1 Under \xc2\xa7 311 of the Revenue bill,\n\xc2\xa7 46 of the Code would be further amended to create a general tax credit rate of\n10 percent with no time limitation. Section 311 accomplishes this purpose by\nrewording \xc2\xa7 46(a) (2) (B), as already amended by the Energy Act, to eliminate\nany time limit on the extension of the 10 percent rate.\nThat Congress, in enacting the Revenue Act, both recognized and intended\nto amend further the amendment of \xc2\xa7 46(a) (2) (B) as enacted in the Energy bill\nis clear from the way in which \xc2\xa7 311 of the Revenue Act describes \xc2\xa7 46(a) (2)\n(B). Section 311 reads:\n(A) 10-PERCENT INVESTM ENT CREDIT.\xe2\x80\x94 Subparagraph (B) of\nsection 46(a) (2) (defining regular percentage) is amended to read as\nfollows:\n(B) REGULAR PERCENTAGE.\xe2\x80\x94 For purposes of this para\xc2\xad\ngraph, the regular percentage is 10 percent.\nThe reference in \xc2\xa7 311 to \xe2\x80\x9c Subparagraph (B) o f section 46(a) (2) (defining\nregular percentage)\xe2\x80\x9d makes sense only if the Energy Act has already amended\n46(a) (2) (B) because, without the amendment effected by the Energy Act,\n\xc2\xa7 46(a) (2) (B) would not define regular percentage, as indicated in \xc2\xa7 311.\nCurrently, without the Energy Act in force, \xc2\xa7 46(a) (2) (B) as revised in 1976\ndiscusses credit allowances in excess of the 10 percent rate, a wholly different\nsubject. Section 311 is sensible only if Congress considered and intended to\namend the amendment to \xc2\xa7 46 it had already passed in the Energy Tax Act. This\nconclusion is buttressed by other sections of the Revenue Act that refer\nexpressly to the Energy Tax Act o f 1978.2\nRegardless of the order in which the President signs the two Acts passed by\nCongress on October 14, 1978, a court subsequently construing them will be\nbound by two elementary principles: statutes are to be interpreted, so far as\npossible, to give effect to the intent of the legislature; statutes in p a ri m ateria.\n\n'A s indicated by the Congressional R ecord, 124 Cong. R ec.'D 1564, D 1567. D1573, D1575\n(daily ed ., Oct. 14, 1978), each House passed the Revenue Act subsequent to its own approval of\nthe Energy Tax Act. Were the relevant provisions o f the acts in conflict, application o f the general\nrule that where statutes in pari materia are absolutely repugnant, the one passed later will prevail,\nSutherland, Statutes and Statutory Construction SS 23.17. 51.03 (4th cd. 1972). would still lead to\nthe conclusion that the Revenue Act would control.\n\n2See. e.g.. the technical am endm ent effected by the Revenue Act o f 1978. \xc2\xa7 3 1 1(c) (2).\n\n423\n\n\x0cespecially when enacted closely in tim e, are to be interpreted, so far as\npossible, to avoid a contradiction between them. We conclude that the intent of\nCongress as manifested in the language o f the Revenue bill and as evidenced in\nidentical paragraphs o f the committee reports on the Revenue Act of 1978, S.\nRept. 95-1263, 95th C ong., 2d sess. 112 (1978); H . R ept. 95-1445, 95th C ong.,\n2d sess. 62 (1978), to extend permanently the 10 percent investment tax credit\nrate, requires an interpretation o f both bills that would extend the 10 percent\nrate indefinitely. The President, by signing the Revenue Act first, is incapable\nof altering C ongress\xe2\x80\x99 clearly expressed m eaning.3\nL eon U lm a n\n\nD epu ty A ssistant Attorney GeneraI\nOffice o f L egal Counsel\n\n\xe2\x80\x99A contrary result would be inconsistent with the legislative role delegated by the Constitution\nentirely to Congress.\n\n\x0cAPPENDIX\n\nLegislation\n\nRegular Rate Time\no f Investment Limit\nTax Credit\nProvided\n\nSection In\nHow Amendment to\nWhich Time\nTime Limit Is\nLimit Appears Accomplished\n\nInternal\nRevenue Code\nof 1954\n\n7 percent\n(26 U .S.C .\n\xc2\xa7 4 6 (a )(l))\n\nNone\n\nTax Reduction\nAct of 1975\n\n10 percent\n\nInvest\xc2\xad\nments\nmade\nprior to\n1-1-77\n\nTax Reform\nAct of 1976\n\n10 percent\n\nInvest\xc2\xad\n26 U .S.C.\n\xc2\xa746(a) (I) (D)\nments\n\xc2\xa746(a) (2) (D) moved to \xc2\xa746(a) (2)\nmade\n(D); dates changed\nprior to\nto conform to extend\xc2\xad\nto 1-1-81\ned time limit.\n\nEnergy Tax\nAct of 1978\n\n10 percent\n\nInvest\xc2\xad\n26 U .S.C.\nTransitional rules\nments\n\xc2\xa746(a) (2) (B) eliminated; time\nmade in\nlimits embodied in\nperiod\nentirely rewritten\nending\nversion of \xc2\xa746(a)\n12-31-80\n(2) (B).\n\nRevenue\nAct of\n1978\n\n10 percent\n\nNone\n\n26 U .S.C.\nTransitional time\n\xc2\xa746(a) (1) (D) rules inserted in\nnew \xc2\xa746(a) (1) (D).\n\n\xc2\xa746(a) (2) (B) re\xc2\xad\nwritten to abolish\ntime limit on 10 per\xc2\xad\ncent rate and rever\xc2\xad\nsion to 7 percent\nrate.\n\nEXTENSIONS OF THE 10 PERCENT REGULAR RATE\nINVESTM ENT TAX CREDIT\n\n425\n\n\x0c"


b'Presidential Authority to Order the Removal of the Original\nEngrossed Constitution From the Library of Congress\nThe custody of the original engrossed Constitution of the United States is now vested by statute in the\nLibrary of Congress, and no statute authorizes the President to interfere with that custody or to\nprescribe rules governing it. Therefore, an executive order authorizing the removal of the Constitution from the Library of Congress could neither compel such removal nor make it legal.\n\nMarch 2, 1939\n\nMEMORANDUM OPINION FOR THE ATTORNEY GENERAL\nThe Congress undoubtedly has authority to provide by statute for the custody of\nthe Constitution (U.S. Const. art. IV, \xc2\xa7 3, cl. 2), and apparently it has done so.\nThe Continental Congress on March 22, 1777, created the office of Secretary of\nCongress and committed to the incumbent the custody of all journals, papers, and\ndocuments of the Congress. 7 Journals of the Continental Congress 193\xe2\x80\x9394.\nThe original engrossed Constitution of the United States was received by the\nContinental Congress and passed into the custody of its Secretary on September\n28, 1787. 33 id. at 549.\nAfter the Constitution was ratified, the Congress by Act of July 27, 1789 (ch. 4,\n\xc2\xa7 1, 1 Stat. 28) created the Department of Foreign Affairs, with a secretary for the\nDepartment. The Act of September 15, 1789 changed the name of this Department\nto the Department of State and added to its duties, providing in part:\n[T]he said Secretary shall forthwith after his appointment be entitled\nto have the custody and charge of the said seal of the United States,\nand also of all books, records and papers, remaining in the office of\nthe late Secretary of the United States in Congress assembled . . . .\nId. ch. 14, \xc2\xa7 7, 1 Stat. 68, 69.\nSection 203 of the Revised Statutes (2d ed. 1878) provides:\nThe Secretary of State shall have the custody and charge of the seal\nof the United States, and of the seal of the Department of State, and\nof all the books, records, papers, furniture, fixtures, and other property now remaining in and appertaining to the Department, or hereafter\nacquired for it.\n18 Stat. pt. 1, at 32 (repl. vol.).\nUnder the above statute the Constitution for many years remained in the custody of the Secretary of State. Charles Warren, in his work The Making of the\nConstitution, says:\n\n79\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nThe original document remained in the possession of the Secretary\nof Congress, Charles Thomson, until the new Government was established. On July 24, 1789, President Washington directed Thomson to deliver the \xe2\x80\x9cbooks, records and papers of the late Congress\xe2\x80\x9d to\nRoger Alden, late Deputy Secretary of Congress, to take charge of\nthem in New York. The First Congress, by Act of September 15,\n1789, directed that \xe2\x80\x9call books, records, and papers remaining in the\nOffice of the late Secretary of the United States in Congress assembled\xe2\x80\x9d be placed in the charge and custody of the new State Department. Alden, however, remained in custody of all these papers until\nafter Thomas Jefferson assumed the duties of the office of Secretary\nof State, which he accepted on February 14, 1790. When the Government moved from New York to Philadelphia, in 1791, the Constitution was taken back to its place of origin; and it followed the Government and the Secretary of State to Washington, in 1800. In 1814,\nwhen the British occupied Washington, the Declaration of Independence and other papers in the State Department were taken out to\nLeesburg, Virginia, and it is probable that the Constitution was one\nof these papers. They were returned when President Madison reoccupied Washington.\nId. at 784\xe2\x80\x9385 (1828) (footnotes omitted).\nThe Act of February 25, 1903, entitled \xe2\x80\x9cAn Act making appropriations for the\nlegislative, executive, and judicial expenses of the Government for the fiscal year\nending June 30, 1904, and for other purposes,\xe2\x80\x9d under the heading \xe2\x80\x9cIncrease of\nLibrary of Congress,\xe2\x80\x9d provides in part:\nThe head of any Executive department or bureau or any commission\nof the Government is hereby authorized from time to time to turn\nover to the Librarian of Congress, for the use of the Library of Congress, any books, maps, or other material in the library of the\ndepartment, bureau, or commission no longer needed for its use, and\nin the judgment of the Librarian of Congress appropriate to the uses\nof the Library of Congress.\nPub. L. No. 57-115, 32 Stat. 854, 865.\nOn September 29, 1921, President Harding issued Executive Order 3554,\nwhich reads:\nThe original engrossed Declaration of Independence and the original engrossed Constitution of the United States, now in the Department of State, are, by authority provided by the Act of Congress entitled \xe2\x80\x9cAn Act making appropriations for the legislative, executive\nand judicial expenses of the Government for the fiscal year ending\n\n80\n\n\x0cPresidential Authority to Order Removal of Constitution from Library of Congress\n\nJune 30, 1904, and for other purposes,\xe2\x80\x9d approved February 25, 1903,\nhereby ordered to be transferred from the Department of State to the\ncustody of the Library of Congress, to be there preserved and exhibited under such rules and regulations as may from time to time be\nprescribed by the Librarian of Congress.\nThis Order is issued at the request of the Secretary of State, who\nhas no suitable place for the exhibition of these muniments and\nwhose building is believed to be not as safe a depository as the Library of Congress, and for the additional reason that it is desired to\nsatisfy the laudable wish of patriotic Americans to have an opportunity to see the original fundamental documents upon which rest\ntheir Independence and their Government.\nIt will be noted that the authority contained in the Act of February 25, 1903, to\ntransfer documents to the Library of Congress, is vested in the heads of the\ndepartments and agencies and not in the President. Executive Order 3554,\nhowever, after citing that act, states that it is \xe2\x80\x9cissued at the request of the Secretary\nof State,\xe2\x80\x9d and I am of the opinion that the transfer of the Constitution and the\nDeclaration of Independence to the Library of Congress was, in fact, the act of the\nSecretary of State in the exercise of the authority conferred upon him by the\nstatute, and that while Executive Order 3554 may have lent dignity, it added\nnothing to the legality of the transaction.\nIt thus appears that the custody of the Constitution is now vested by statute in\nthe Library of Congress, and I find no statute which authorizes the President to\ninterfere with that custody or to prescribe rules governing it. It is my opinion,\ntherefore, than an executive order authorizing the removal of the Constitution from\nthe Library of Congress could neither compel such removal nor make it legal.\nGOLDEN W. BELL\nAssistant Solicitor General\n\n81\n\n\x0c'


b'Constitutionality of the D.C. House\nVoting Rights Act of 2009\nThe constitutionality of the District of Columbia House Voting Rights Act of 2009 presents\na close question, but the balance tips in favor of finding the Act constitutional.\nNeither the text of the Constitution nor the analysis of applicable precedent clearly\nresolves the question of whether Congress may confer House voting rights on D.C.\nresidents by legislation.\nIn the absence of a clear constitutional prohibition, the Constitution does not require\ndenying the most basic rights in a democracy\xe2\x80\x94the right to elect representation in the\nlegislature and therefore to self-governance\xe2\x80\x94to U.S. citizens who happen to be residents of the District of Columbia.\nFebruary 26, 2009\n\nMEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT *\nYou have requested the view of the Department of Justice regarding the\nconstitutionality of H.R. 157 and S. 160, which propose legislation granting congressional representation to the District of Columbia (collectively,\nthe \xe2\x80\x9cD.C. House Voting Rights Act\xe2\x80\x9d). Although it presents a close constitutional question, in my view, for the reasons explained below, the balance tips in favor of finding this proposed legislation constitutional.\nI. Executive Summary\nH.R. 157 and S.160 would give the District of Columbia one voting\nmember in the House of Representatives. Each bill includes a provision\nstating: \xe2\x80\x9cNotwithstanding any other provision of law, the District of\nColumbia shall be considered a Congressional district for purposes of\nrepresentation in the House of Representatives.\xe2\x80\x9d H.R. 157, \xc2\xa7 2(a); S. 160,\n\xc2\xa7 2(a). Each bill would grant the citizens of the District the ability to elect\na voting member of the House of Representatives by identifying it as a\ncongressional district in its own right, although neither bill purports to\ngrant the District statehood.\n* Editor\xe2\x80\x99s Note: This opinion refers to views of the Office of Legal Counsel on the\nsame legislation, which are available elsewhere in this volume. See Views on Legislation\nMaking the District of Columbia a Congressional District, 33 Op. O.L.C. 156 (2009).\n\n38\n\n\x0cConstitutionality of the D.C. House Voting Rights Act of 2009\n\nThere are a number of strong arguments against the constitutionality of\nsuch a statute, including those advanced by the Office of Legal Counsel\nwith respect to prior versions of the proposed legislation. See Constitutionality of the D.C. Voting Rights Act of 2007, 31 Op. O.L.C. 147 (2007)\n(\xe2\x80\x9cD.C. Voting Rights Act \xe2\x80\x9d) (statement of John P. Elwood, Deputy Assistant Attorney General, Office of Legal Counsel); E-mail for Velma\nTaylor, Office of Legislative Affairs, from Michelle Boardman, Deputy\nAssistant Attorney General, Office of Legal Counsel, Re: H.R. 5388, the\nDistrict of Columbia Fair and Equal House Voting Rights Act of 2006\n(May 22, 2006). The Office of Legal Counsel has recently presented to\nme its view that the current proposed legislation is similarly infirm. These\narguments rest primarily on the text of Article I, Section 2 of the Constitution (the \xe2\x80\x9cComposition Clause\xe2\x80\x9d), which provides: \xe2\x80\x9cThe House of Representatives shall be composed of Members chosen every second Year by\nthe People of the several States, and the Electors in each State shall have\nthe Qualifications requisite for Electors of the most numerous Branch of\nthe State Legislature.\xe2\x80\x9d U.S. Const. art. I, \xc2\xa7 2, cl. 1 (emphasis added).\nAt the same time, there are a number of compelling arguments in favor\nof the constitutionality of the proposed legislation, including those advanced by a diverse array of well-respected constitutional scholars. See,\ne.g., Viet D. Dinh & Adam H. Charnes, The Authority of Congress to\nEnact Legislation to Provide the District of Columbia with Voting Representation in the House of Representatives at 19 (Nov. 2004), https://\nwww.dcvote.org/sites/default/files/upload/vietdinh112004.pdf (\xe2\x80\x9cDinh\n& Charnes\xe2\x80\x9d); Common Sense Justice for the Nation\xe2\x80\x99s Capital: An Examination of Proposals to Give D.C. Residents Direct Representation: Hearing Before the H. Comm. on Gov\xe2\x80\x99t Reform, 108th Cong. 77\xe2\x80\x9384 (June 23,\n2004) (Serial No. 108-218) (statement of Kenneth W. Starr); Ending\nTaxation Without Representation: The Constitutionality of S. 1257: Hearing Before the S. Comm. on the Judiciary, 110th Cong. 18\xe2\x80\x9322 (May 23,\n2007) (S. Hrg. No. 110-440; Serial No. J-110-38) (statement of Patricia\nWald) (\xe2\x80\x9cWald Statement\xe2\x80\x9d); see also Peter Raven-Hansen, Congressional\nRepresentation for the District of Columbia: A Constitutional Analysis, 12\nHarv. J. on Legis. 167, 191 (1975). These scholars rely upon Congress\xe2\x80\x99s\nplenary power to legislate for the District of Columbia under Article I,\nSection 8, Clause 17 (the \xe2\x80\x9cDistrict Clause\xe2\x80\x9d), together with case law holding that, under the authority conferred by the District Clause, Congress\n39\n\n\x0c33 Op. O.L.C. 38 (2009) (Holder, Att\xe2\x80\x99y Gen.)\n\nmay provide that the District should be treated as a state for constitutional\npurposes. In addition, proponents of the legislation contend that fundamental principles of democracy and the importance of the right to vote\xe2\x80\x94\nprinciples that animate the Constitution and undergird our founding as a\nnation\xe2\x80\x94further buttress their constitutional analysis.\nThese competing arguments highlight the fact that the constitutionality\nof the D.C. House Voting Rights Act presents a close constitutional\nquestion. Neither the text of the Constitution nor the analysis of applicable precedent clearly resolves the question of whether Congress may\nconfer House voting rights on D.C. residents by legislation. In addition,\nshould Congress enact the proposed legislation, that act would embody\nthe will of the people of the United States to extend the franchise to\nDistrict citizens. In that context, and in the absence of a clear constitutional prohibition, I cannot conclude that the Constitution requires us to\nignore the will of the American people and to deny the most basic rights\nin a democracy\xe2\x80\x94the right to elect representation in the legislature and\ntherefore to self-governance\xe2\x80\x94to U.S. citizens who happen to be residents\nof our nation\xe2\x80\x99s capital, the District of Columbia. 1\nII. The D.C. House Voting Rights Act of 2009 Is Constitutional\nA. The District Clause Empowers Congress to\nProvide Congressional Representation to\nResidents of the District of Columbia\nThe District Clause confers on Congress the power to \xe2\x80\x9cexercise exclusive Legislation in all Cases whatsoever, over such District . . . as may . . .\nbecome the Seat of the Government of the United States.\xe2\x80\x9d U.S. Const.\nart. I, \xc2\xa7 8, cl. 17. In my view, the power conferred by the District Clause\nincludes the authority to create a congressional district within the District\nof Columbia.\n\n1 The closeness of the constitutional question precludes confident prediction regarding\nthe outcome of any litigation regarding the constitutionality of the proposed legislation.\nConsequently, decision-makers should be mindful of the substantial litigation risks\nassociated with the possibility of judicial review of a congressional decision to extend\nvoting rights of the District of Columbia by ordinary legislation, should the courts find an\nappropriate vehicle to conduct such a review.\n\n40\n\n\x0cConstitutionality of the D.C. House Voting Rights Act of 2009\n\nThe Supreme Court has held that Congress\xe2\x80\x99s power under the District\nClause is plenary, providing Congress with \xe2\x80\x9cfull and unlimited jurisdiction to provide for the general welfare of District citizens by any and\nevery act of legislation which it may deem conducive to that end.\xe2\x80\x9d Nat\xe2\x80\x99l\nMut. Ins. Co. of D.C. v. Tidewater Transfer Co., 337 U.S. 582, 601 (1949)\n(quoting Neild v. Dist. of Columbia, 100 F.2d 246, 250 (D.C. Cir. 1940)).\nMoreover, when Congress exercises its power to legislate for the District,\nit \xe2\x80\x9cacts as a legislature of national character, exercising complete legislative control as contrasted with the limited power of a state legislature, on\nthe one hand, and as contrasted with the limited sovereignty which Congress exercises within the boundaries of the states, on the other.\xe2\x80\x9d Id. at\n602; see also Palmore v. United States, 411 U.S. 389, 397\xe2\x80\x93398 (1973);\nUnited States v. Cohen, 733 F.2d 128, 140 (D.C. Cir. 1984) (Scalia, J.)\n(noting that Congress has \xe2\x80\x9cextraordinary plenary power\xe2\x80\x9d in legislating for\nthe District).\nThe Supreme Court has upheld Congress\xe2\x80\x99s authority to enact legislation\nthat treats the District of Columbia as a \xe2\x80\x9cstate\xe2\x80\x9d for constitutional purposes, even where the text of the Constitution, by referring to \xe2\x80\x9cstates,\xe2\x80\x9d would\nappear to preclude such legislation. In Tidewater Transfer, a three-Justice\nplurality upheld Congress\xe2\x80\x99s power to confer jurisdiction on federal courts\nover state-law suits between citizens of the District and citizens of other\nStates. 337 U.S. at 603\xe2\x80\x9304. The plurality did so even though the text of\nArticle III purported to limit such jurisdiction only to suits \xe2\x80\x9cbetween\ncitizens of different states.\xe2\x80\x9d U.S. Const. art. III, \xc2\xa7 2, cl. 1. The plurality\nacknowledged Chief Justice Marshall\xe2\x80\x99s conclusion in Hepburn & Dundas\nv. Ellzey, 6 U.S. (2 Cranch) 445 (1805), that \xe2\x80\x9cthe District of Columbia is\nnot a state within Article III of the Constitution,\xe2\x80\x9d Tidewater Transfer, 337\nU.S. at 588, as well as the concomitant conclusion that a state-law suit\nbetween a District resident and a citizen of a state would not be diverse\nwithin the meaning of Article Ill\xe2\x80\x99s explicit language, id. at 600. The\nplurality noted, however, that Hepburn & Dundas had not considered the\nexact question before it, whether Congress could exercise its authority\nunder the District Clause to create diversity jurisdiction under Article III\nfor suits involving residents of the District. The plurality also noted that\nthe Court\xe2\x80\x99s opinion in Hepburn & Dundas suggested that Congress could\ncreate a \xe2\x80\x9clegislative\xe2\x80\x9d solution:\n41\n\n\x0c33 Op. O.L.C. 38 (2009) (Holder, Att\xe2\x80\x99y Gen.)\n\nIt is therefore significant that . . . the Chief Justice added, as we have\nseen, that it was extraordinary that the federal courts should be\nclosed to the citizens of \xe2\x80\x9cthat particular district which is subject to\nthe jurisdiction of congress.\xe2\x80\x9d Such language clearly refers to Congress\xe2\x80\x99 Art. I power of \xe2\x80\x9cexclusive Legislation in all Cases whatsoever, over such District.\xe2\x80\x9d And mention of that power seems particularly\nsignificant in the context of Marshall\xe2\x80\x99s further statement that the\nmatter is a subject for \xe2\x80\x9clegislative not for judicial consideration.\xe2\x80\x9d\n[Hepburn & Dundas, 6 U.S. at 453.] Even if it be considered speculation to say that this was an expression by the Chief Justice that\nCongress had the requisite power under Art. I, it would be in the\nteeth of his language to say that it is a denial of such power.\nTidewater Transfer, 337 U.S. at 589. The plurality concluded that \xe2\x80\x9c[t]o\nput federally administered justice within the reach of District citizens . . .\nis an object which Congress has a right to accomplish,\xe2\x80\x9d and Congress\xe2\x80\x99s\ndetermination that it had the authority to use Article I to confer jurisdiction of the district courts was entitled to deference. Id. at 603, 607. 2\nTwo other cases have upheld Congress\xe2\x80\x99s power to enact legislation that\ntreated the District of Columbia as though it were a state for purposes of\na constitutional provision. 3 In Milton S. Kronheim Co. v. District of\nColumbia, 91 F.3d 193 (D.C. Cir. 1996), the Court of Appeals for the\nDistrict of Columbia upheld Congress\xe2\x80\x99s treatment of D.C. as a state for\npurposes of the Twenty-First Amendment, which provided that \xe2\x80\x9c[t]he\ntransportation or importation into any state, territory, or possession of\nTwo Justices concurred in the judgment, but would have overruled Hepburn & Dundas and held that D.C. was a state under Article III. They disagreed with the plurality\xe2\x80\x99s\nholding that the District Clause provided Congress the necessary authority to supplement\nthe jurisdiction conferred by Article III. Tidewater Transfer, 337 U.S. at 621\xe2\x80\x9326. Although no rationale commanded a majority of the Court, a majority concluded that the\nDistrict of Columbia could be treated as a state for purposes of a constitutional provision\nthat was seemingly limited to \xe2\x80\x9cstates.\xe2\x80\x9d\n3 Although they do not analyze Congress\xe2\x80\x99s power under the District Clause, several\nopinions of the Supreme Court have held that the District of Columbia is a state for\npurposes of some constitutional provisions. See, e.g., Stoutenburgh v. Hennick, 129 U.S.\n141 (1889) (holding that the District of Columbia was a state within the meaning of the\nCommerce Clause); Callan v. Wilson, 127 U.S. 540 (1888) (stating that the Sixth\nAmendment right to \xe2\x80\x9cimpartial jury in the state and [judicial] district\xe2\x80\x9d of the crime applies\nto D.C.).\n2\n\n42\n\n\x0cConstitutionality of the D.C. House Voting Rights Act of 2009\n\nthe United States for delivery or use therein of intoxicating liquors, in\nviolation of the laws thereof, is hereby prohibited.\xe2\x80\x9d U.S. Const. amend.\nXXI, \xc2\xa7 2. The court was considering a D.C. statute that regulated the\nstorage of liquor in the District, and that arguably would have violated the\ndormant Commerce Clause if the Twenty-First Amendment were held not\nto apply to D.C. The court upheld the statute and stated that \xe2\x80\x9cwe will treat\nthe District of Columbia as a state for purposes of the Twenty-First\nAmendment analysis. Congress determined at the time of the passage of\nthe ABC Act . . . that the District would function in a state-like manner\nfor alcohol regulation purposes. We have no warrant to interfere with\nCongress\xe2\x80\x99s plenary power under [the District Clause].\xe2\x80\x9d Kronheim, 91 F.3d\nat 201. Similarly, in Clarke v. Washington Metropolitan Area Transit\nAuthority, 654 F. Supp. 712, 714 n.1 (D.D.C. 1985), aff\xe2\x80\x99d, 808 F.2d 137\n(D.C. Cir. 1987), the District Court for the District of Columbia upheld\nCongress\xe2\x80\x99s power to enact legislation that treated the District as a state for\npurposes of Eleventh Amendment immunity, despite that amendment\xe2\x80\x99s\ntextual application only to each \xe2\x80\x9cone of the United States.\xe2\x80\x9d\nIn response to these arguments, opponents of the constitutionality of the\nD.C. House Voting Rights Act have pointed out that Congress may exercise its District Clause power only in accordance with other provisions of\nthe Constitution. But Tidewater Transfer and the other cases support the\nargument that Congress has some leeway, pursuant to the District Clause,\nto prescribe the manner in which the District will be treated for purposes\nof various constitutional provisions. Presumably, that discretion is limited\nby the rest of the Constitution, in the sense that Congress may not treat\nthe District as a state if doing so would violate the fundamental principles\nexpressed in the Constitution (as opposed to the literal text that limits a\nprovision to \xe2\x80\x9cstates\xe2\x80\x9d). See Tidewater Transfer, 337 U.S. at 585. As discussed below, there are persuasive arguments that granting House voting\nrights does not offend the structural principles animating Article I.\nB. Important Constitutional Principles Reinforce\nCongress\xe2\x80\x99s Power Under the District Clause\nCongress\xe2\x80\x99s power to treat the District as though it were a state for purposes of representation in the House of Representatives is consistent with\ntwo vitally important constitutional principles: that the Constitution\n43\n\n\x0c33 Op. O.L.C. 38 (2009) (Holder, Att\xe2\x80\x99y Gen.)\n\nprotects the right to be represented in the federal government, and that\nthis right belongs to the people, rather than the states. A narrow reading of\nCongress\xe2\x80\x99s authority under the District Clause would contravene the very\nstructural and political principles that Article I\xe2\x80\x99s voting provisions were\ndesigned to protect.\nFirst, there is no question that the right to vote for representation in the\nHouse of Representatives is fundamentally important. Any consideration\nof Congress\xe2\x80\x99s Article I power must take place against the backdrop of the\nprinciples of self-government that illuminated the framing of the Constitution. See Powell v. McCormack, 395 U.S. 486, 547 (1969) (interpreting\nArticle I in light of principle of self-representation). Congressional action\nto grant D.C. voting rights would vindicate these principles by expanding\nthe franchise. The right to participate in government directly\xe2\x80\x94to petition\nit, alter it, or abolish it\xe2\x80\x94was thought of by many framers as an inalienable\nright that could not be vitiated by governmental action, even on the constitutional level. Under this theory, while the Constitution may not have\nexplicitly commanded that District residents receive the vote, it may not\nbe interpreted in a manner that invalidates an expansion of the franchise\nthat a majority of the people, as represented by a majority of the House\nand Senate, wish to grant.\nSecond, extending the vote to District residents would vindicate\xe2\x80\x94\nrather than undermine\xe2\x80\x94the structural principles expressed in Article I.\nWhile the Senate was designed to provide representation to the states, the\nHouse was designed to represent the people directly. See, e.g., Sen. Orrin\nG. Hatch. \xe2\x80\x9cNo Right is More Precious in a Free Country\xe2\x80\x9d: Allowing\nAmericans in the District of Columbia to Participate in National SelfGovernment, 45 Harv. J. on Legis. 287, 304 (2008); U.S. Const. art. I, \xc2\xa7 2,\nc1. 1 (House members to be chosen by \xe2\x80\x9cthe people of the several states\xe2\x80\x9d).\nThe Framers intentionally vested this right in the people, so that its enjoyment would not depend on state citizenship or state regulation. See\nU.S. Term Limits v. Thornton, 514 U.S. 779, 844 (1995) (Kennedy, J.,\nconcurring) (\xe2\x80\x9cThe federal right to vote . . . does not derive from the state\npower in the first instance but . . . belong[s] to the voter in his or her\ncapacity as a citizen of the United States\xe2\x80\x9d); id. at 845 (the right arises out\nof the \xe2\x80\x9crelationship between the people of the Nation and their National\nGovernment, with which the States may not interfere\xe2\x80\x9d); id. at 805 (Stevens, J., for the Court) (noting that \xe2\x80\x9c\xe2\x80\x98while, in a loose sense, the right to\n44\n\n\x0cConstitutionality of the D.C. House Voting Rights Act of 2009\n\nvote for representatives in Congress is sometimes spoken of as a right\nderived from the states,\xe2\x80\x99\xe2\x80\x9d in fact it \xe2\x80\x9cwas a new right, arising from the\nConstitution itself\xe2\x80\x9d (quoting United States v. Classic, 313 U.S. 299, 315\n(1941)). Given that the right to House representation actually resides in\nthe people themselves, it would over-read the language of the Composition Clause to hold that it explicitly precludes a congressional exercise of\nCongress\xe2\x80\x99s power under the District Clause to grant House voting rights\nto the District\xe2\x80\x99s residents.\nRelatedly, expanding access to the vote in this manner would not interfere with any other core principles underlying the structure established in\nArticle I. Providing the District with a House vote would not dilute any\nother citizens\xe2\x80\x99 right to vote (at least, it certainly would not dilute anyone\xe2\x80\x99s\nrepresentation to any greater extent than any other exercise of Congress\xe2\x80\x99s\nauthority to increase the number of representatives \xe2\x80\x9cin such Manner as\nthey shall by law direct,\xe2\x80\x9d U.S. Const. art. I, \xc2\xa7 2, cl. 3). See Wald Statement at 10. Nor would providing voting rights threaten to aggrandize the\nnational government. As the Court has noted, one of the predominant\nconcerns surrounding the establishment of Congress\xe2\x80\x99s power to govern\nitself was the fear that elected officials would use that power at the expense of the people or the states. See Powell, 395 U.S. at 533\xe2\x80\x9334. As a\nresult the framers were particularly concerned with Congress\xe2\x80\x99s ability to\nlimit the number or type of people who could become representatives. See\n2 Records of the Federal Convention of 1787 249\xe2\x80\x9350 (M. Farrand ed.,\n1911) (\xe2\x80\x9cA Republic may be converted into an aristocracy or oligarchy as\nwell by limiting the number capable of being elected, as the number\nauthorized to elect.\xe2\x80\x9d (Madison)); Powell, 395 U.S. at 548 (in light of\n\xe2\x80\x9cfundamental principle of our representative democracy . . . that the\npeople should choose whom they please to govern them,\xe2\x80\x9d holding that\nCongress could not supplement the Constitution\xe2\x80\x99s list of qualifications for\noffice (internal citations omitted)), Here, granting the residents of the\nDistrict the right to elect a single representative would not run this risk or\ncontravene the rule against aggrandizement. Congress would be expanding, rather than limiting, the ability of the people to elect the officials of\ntheir choice.\n\n45\n\n\x0c33 Op. O.L.C. 38 (2009) (Holder, Att\xe2\x80\x99y Gen.)\n\nC. No Other Controlling Authority Resolves the Question\n1. Selected Cases Holding That the District Is Not a State\nfor Unrelated Purposes Do Not Apply Here\nAlthough the federal courts have ruled that the District of Columbia is\nnot a \xe2\x80\x9cstate\xe2\x80\x9d under specific provisions of the Constitution, it does not\nfollow that the proposed legislation is necessarily unconstitutional. This is\nbecause the question with respect to the D.C. House Voting Rights Act is\nnot whether the District is a \xe2\x80\x9cstate,\xe2\x80\x9d but whether Congress has authority\nunder the District Clause to enact legislation that treats the District as a\nstate for purposes of voting representation in the House. For example, in\nHephurn & Dundas, Chief Justice Marshall held that a statute conferring\ndiversity jurisdiction on the federal courts did not apply to suits between\ncitizens of D.C. and citizens of a state. Reasoning that other constitutional\nprovisions used the word \xe2\x80\x9cstate\xe2\x80\x9d to refer only to states, the Court concluded that Congress did not intend the statute, which was modeled on the\nlanguage of Article III, to create federal jurisdiction over suits involving\nDistrict residents. Put simply, the question of Congress\xe2\x80\x99s power under the\nDistrict Clause to pass legislation that treated the District of Columbia as\na congressional district was not before the Court.\nLikewise, and more recently, in Adams v. Clinton, 90 F. Supp. 2d 35\n(D.D.C. 2000), a three-judge panel of the D.C. District Court applied\nHepburn & Dundas to hold that the District was not a state under the\nComposition Clause, and therefore that the Constitution itself did not\nconfer voting rights on D.C. residents. The court concluded that because\n\xe2\x80\x9cthe Constitution does not contemplate that the District may serve as a\nstate for purposes of the apportionment of congressional representatives,\xe2\x80\x9d\nid. at 50, \xe2\x80\x9cthe clauses of Article I that provide for congressional voting\n. . . are not applicable to residents of the District of Columbia,\xe2\x80\x9d id. at 60.\nThe Supreme Court summarily affirmed the decision. 531 U.S. 941. Like\nHepburn & Dundas, Adams does not prohibit Congress from granting\nvoting rights by legislation, because it addressed a question that is not\nraised here, namely, whether Article I itself directly provided District\nresidents with a constitutionally compelled right to vote. 90 F. Supp. 2d at\n38. Indeed, the court distinguished its case from Tidewater Transfer\nbecause, in Tidewater Transfer, Congress had affirmatively exercised its\n46\n\n\x0cConstitutionality of the D.C. House Voting Rights Act of 2009\n\nlegislative authority to supplement Article III and therefore the plurality\nhad not held that the Constitution itself established the District as a state\nfor purposes of Article III. Adams, 90 F. Supp. 2d at 54\xe2\x80\x9355. 4\n2. Passage of the Twenty-Third Amendment Does Not\nBear on Congress\xe2\x80\x99s Power to Grant Congressional\nVoting Rights to District Residents by Legislation\nAnother potential argument against the constitutionality of the D.C.\nHouse Voting Rights Act rests on the fact that D.C. residents were granted\nthe right to vote in presidential elections by means of the Twenty-Third\nAmendment. Some have taken Congress\xe2\x80\x99s prior use of a constitutional\namendment to expand voting rights within the District to reflect the need\nto use an amendment to work any type of expansion of D.C.\xe2\x80\x99s voting\nrights.\nCongress\xe2\x80\x99s choice to use an amendment to establish voting rights for\npresidential elections does not imply that a constitutional amendment is\nthe only means by which voting rights may be granted, however. The\nTwenty-Third Amendment was designed to address a wholly different\nconstitutional issue, voting for President under Article II, an issue over\nwhich Congress had limited authority. See Oregon v. Mitchell, 400 U.S.\n112 (1970) (holding that Congress may regulate presidential elections\nthrough Section 5 of the Fourteenth Amendment, but not through its\nArticle I powers). Because the Fourteenth Amendment did not apply to\nthe District, Congress was forced to use a constitutional amendment,\nrather than legislation, to provide the District\xe2\x80\x99s residents with the right to\nvote in presidential elections. See Dinh & Charnes at 21. This problem\nwould not be present with respect to the proposed legislation, given that\nCongress has power to regulate House elections under Article I and the\nDistrict Clause.\n\nOther cases that refer to the right of District residents to vote for congressional representation, see, e.g., Michel v. Anderson, 14 F.3d 623 (D.C. Cir. 1994) (holding that House\nrules cannot confer a voting representative to District residents); Banner v. United States,\n428 F.3d 303, 309 (D.C. Cir. 2005) (holding that, pursuant to the District Clause, Congress can prohibit the imposition of a commuter tax), can similarly be distinguished.\n4\n\n47\n\n\x0c33 Op. O.L.C. 38 (2009) (Holder, Att\xe2\x80\x99y Gen.)\n\nD. The United States Has Expanded Voting Rights\nby Statute in Other Circumstances\nA statutory precedent also supports the conclusion that the D.C. House\nVoting Rights Act is constitutional. The Uniformed and Overseas Citizens Absentee Voting Act (\xe2\x80\x9cUOCAVA\xe2\x80\x9d), 42 U.S.C. \xc2\xa7 1973ff et seq.,\n\xe2\x80\x9cextends federal voting rights to U.S. citizens formerly citizens of a State\nwho reside outside the United States.\xe2\x80\x9d Romeu v. Cohen, 235 F.3d 118,\n120 (2d Cir. 2001). UOCAVA applies even to voters who have no plans\nto return to their former states, do not pay taxes in their former states, and\nhave no residence in their former states. Although the statute permits\nthese voters to vote absentee in their former states, rather than allowing\nthem to vote as part of a non-state entity, the fact remains that these voters\nwould be disenfranchised under a narrow reading of Article I.\nUnder a literalist reading, because they are no longer citizens of a state,\nthey would not have \xe2\x80\x9cthe Qualifications requisite for Electors of the most\nnumerous Branch of the State Legislature.\xe2\x80\x9d U.S. Const. art. I, \xc2\xa7 2, cl. 1;\nsee Dinh & Charnes at 18.\nIII. Arguments Against the Constitutionality of\nthe D.C. House Voting Rights Act of 2009\nThe Office of Legal Counsel (\xe2\x80\x9cOLC\xe2\x80\x9d) recently submitted to the Office\nof Management & Budget its conclusion that the D.C. House Voting\nRights Act of 2009 is unconstitutional, and has provided me with a thorough explanation of the basis for its constitutional conclusion. In reaching\nthis conclusion, the Office of Legal Counsel remained consistent with two\nrecent, prior opinions offered by the Office. See D.C. Voting Rights Act,\n31 Op. O.L.C. at 147 (\xe2\x80\x9cS. 1257 violates the Constitution\xe2\x80\x99s provisions\ngoverning the composition and election of the United States Congress.\xe2\x80\x9d);\nE-mail for Velma Taylor, Office of Legislative Affairs, from Michelle\nBoardman, Deputy Assistant Attorney General, Office of Legal Counsel,\nRe: HR. 5388, the District of Columbia Fair and Equal House Voting\nRights Act of 2006 (May 22, 2006) (\xe2\x80\x9cWe conclude that the creation of a\nDistrict of Columbia seat by this legislation is unconstitutional. Membership in the House of Representatives is limited to representatives elected\n\n48\n\n\x0cConstitutionality of the D.C. House Voting Rights Act of 2009\n\nby the people of the several States, and the District of Columbia is not a\nState.\xe2\x80\x9d). 5 The Office of Legal Counsel rests its argument on the constitutional text of the Composition Clause, as well as related historical evidence and judicial authority, and disputes the argument that the District\nClause affords Congress sufficient authority to extend congressional\nvoting rights to the District of Columbia by ordinary legislation.\nAlthough I have reached the conclusion that the balance of arguments\ntips slightly in favor of the constitutionality of the D.C. House Voting\nRights Act, I remain mindful of the substantial constitutional arguments\nthat have been advanced against the proposed legislation, including those\noffered by the Office of Legal Counsel. Consequently, while, for the\nreasons explained above, it is my view that the fundamental importance of\nthe right to representation in our constitutional scheme tips the scales in\nfavor of the proposed legislation in this exceptional case, I believe it is\nimportant that any decision-maker be aware of the weighty constitutional\narguments on the other side. This is particularly so given the substantial\nlitigation risks that this constitutional uncertainty creates. Accordingly, I\nwill provide a brief summary of the views that have been advanced\nagainst the constitutionality of the statute, including the principal arguments advanced by the Office of Legal Counsel. 6\nAlthough Congress had not sought to give the District voting representation by ordinary legislation until recently, OLC also points to its analysis of related questions as\nfurther support for OLC\xe2\x80\x99s longstanding view. See, e.g., Letter for Benjamin Zelenko,\nCommittee on the Judiciary, House of Representatives, from Martin F. Richman, Acting\nAssistant Attorney General, Office of Legal Counsel (Aug. 11, 1967) (explaining that\n\xe2\x80\x9cprovisions for elections of Senators and Representatives in the Constitution are stated\nin terms of the States, and the District of Columbia is not a State\xe2\x80\x9d); Memorandum for\nWarren Christopher, Deputy Attorney General, from Frank M. Wozencraft, Assistant\nAttorney General, Office of Legal Counsel, Re: Budget, Economic, and State of the Union\nMessages (Oct. 16. 1968) (same); District of Columbia Representation in Congress:\nHearing on S.J. Res. 65 Before the Subcomm. on the Constitution of the S. Comm. on the\nJudiciary, 95th Cong. 16\xe2\x80\x9329 (1978) (testimony of John M. Harmon, Assistant Attorney\nGeneral, Office of Legal Counsel) (stating that, \xe2\x80\x9c[i]f the District is not to be a state, then\nan amendment [to the Constitution] is required\xe2\x80\x9d to give the District voting representation\nin Congress, as \xe2\x80\x9cwe do not believe that the word \xe2\x80\x98state\xe2\x80\x99 as used in Article I can fairly be\nconstrued to include the District under any theory of \xe2\x80\x98nominal statehood\xe2\x80\x99\xe2\x80\x9d).\n6 OLC prepared a thorough written analysis delineating its views regarding the constitutionality of the proposed legislation. My summary of the arguments that have been\nadvanced against the constitutionality of the legislation here does not purport to be a full\n5\n\n49\n\n\x0c33 Op. O.L.C. 38 (2009) (Holder, Att\xe2\x80\x99y Gen.)\n\nThose who argue against the constitutionality of the legislation primarily advance the following arguments:\nA. The Text of the Composition Clause Is Clear\nTo proponents of the view that the legislation is unconstitutional, including OLC, the key constitutional provision is the Composition Clause,\nwhich governs the membership of the House of Representatives. The\nClause provides: \xe2\x80\x9cThe House of Representatives shall be composed of\nMembers chosen every second Year by the People of the several States,\nand the Electors in each State shall have the Qualifications requisite for\nElectors of the most numerous Branch of the State Legislature.\xe2\x80\x9d U.S.\nConst. art. I, \xc2\xa7 2, cl. 1. From their perspective, the language itself clearly\nlimits the right to choose \xe2\x80\x9cmembers\xe2\x80\x9d of the House to people from states,\nand that nothing in the text of the Composition Clause indicates that the\npeople of an entity other than a state may do so. Supporters of this view\nurge that the reference to \xe2\x80\x9cthe people\xe2\x80\x9d in the Clause is best read to underscore that members of the House would be selected by popular vote\nwithin \xe2\x80\x9cthe several states\xe2\x80\x9d whereas members of the Senate would be\nselected (prior to the adoption of the 17th Amendment) by state legislatures. It is this critical distinction that underlies the familiar description of\nthe House of Representatives as \xe2\x80\x9cthe people\xe2\x80\x99s house.\xe2\x80\x9d 7\n\ncatalogue of the issues raised in OLC\xe2\x80\x99s analysis, but rather reflects what I understand to\nbe key points raised by those who argue against the constitutionality of the statute. I am\nhappy to provide OLC\xe2\x80\x99s full written analysis in the event that you or other decisionmakers are interested.\n7 This line of reasoning is underscored by other provisions of the Composition Clause.\nImmediately after providing that members of the House shall be chosen by \xe2\x80\x9cthe people of\nthe several States,\xe2\x80\x9d the Clause directs that the electors in House elections \xe2\x80\x9cshall have the\nQualifications requisite for Electors of the most numerous Branch of the State Legislature.\xe2\x80\x9d U.S. Const. art. I, \xc2\xa7 2, cl. 1. (emphasis added). \xe2\x80\x9c[F]or most of its history,\xe2\x80\x9d however,\n\xe2\x80\x9cthe District of Columbia has had nothing that could even roughly be characterized as a\nlegislature for the entire District.\xe2\x80\x9d Adams, 90 F. Supp. 3d at 47; see also id. at 49 (\xe2\x80\x9cThe\nimpossibility of treating Congress as the legislature under that clause is manifest, as doing\nso would mean that Congress would itself choose the District\xe2\x80\x99s senators.\xe2\x80\x9d). Likewise, the\nsame section of Article I provides: \xe2\x80\x9cWhen vacancies happen in the representation from\nany State, the executive authority thereof shall issue writs of election to f ill such vacancies.\xe2\x80\x9d As the Adams court explained, this provision would be anomalous as applied to the\nDistrict. Leaving aside the fact that the Mayor of the District is a relatively recent office,\n\n50\n\n\x0cConstitutionality of the D.C. House Voting Rights Act of 2009\n\nB. Historical Evidence and More Recent Practice\nSupport This View\nThis conclusion is reinforced by pointing to evidence that the Framers\nregarded states as uniquely important components of the federal constitutional structure. See Adams, 90 F. Supp. at 56 (\xe2\x80\x9cThe Constitution\xe2\x80\x99s repeated references to states . . . are reflections of the Great Compromise\nforged to ensure the Constitution\xe2\x80\x99s ratification. There is simply no evidence that the Framers intended that not only citizens of states, but unspecified others as well, would share in the congressional franchise.\xe2\x80\x9d).\nLikewise, those who find the legislation unconstitutional contend that the\nevidence from founding-era history supports the conclusion that Congress\nmay not give the District voting representation in the House without\nmaking the District a state. See generally Adams, 90 F. Supp. 2d at 50\xe2\x80\x9353.\nThe District was created to serve the distinct purpose of protecting the\nnational government and its institutions. That particular purpose\xe2\x80\x94\nmaintaining the nation\xe2\x80\x99s capital as a non-state entity\xe2\x80\x94obviously does\nnot require that the District be denied voting representation in Congress.\nSee, e.g., Raven-Hansen, Congressional Representation for the District of\nColumbia, 12 Harv. J. on Legis. at 184. But opponents of the proposed\nlegislation, including OLC, contend that Founding-era statements addressing the voting rights of residents of such a district\xe2\x80\x94including statements\n\n\xe2\x80\x9cit is Congress that is the ultimate executive authority for the District.\xe2\x80\x9d Id. at 49. And\n\xe2\x80\x9c[t]he possibility that the Framers intended Congress to fill its own vacancies seems far\ntoo much of a stretch, even if the constitutional fabric were more f lexible than it appears\nto be.\xe2\x80\x9d Id.; see also U.S. Const. art. I, \xc2\xa7 2, cl. 2 (\xe2\x80\x9cNo person shall be a Representative . . .\nwho shall not, when elected, be an inhabitant of that State in which he shall be chosen.\xe2\x80\x9d)\n(emphasis added). The repeated textual references to \xe2\x80\x9cstates\xe2\x80\x9d or \xe2\x80\x9cstate\xe2\x80\x9d in this Clause,\nwhen combined with the numerous constitutional provisions relating to federal elections\nthat similarly restrict voting to \xe2\x80\x9cstates\xe2\x80\x9d and their people, are presented as a clear intention\nto exclude non-state entities, such as the District, unless the Constitution expressly\nprovides otherwise. See U.S. Const. amend. XXIII, \xc2\xa7 1 (The District \xe2\x80\x9cshall appoint . . . [a]\nnumber of electors of President and Vice President equal to the whole number of Senators\nand Representatives in Congress to which the District would be entitled if it were a State,\nbut in no event more than the least populous State; they shall be in addition to those\nappointed by the States, but they shall be considered, for the purposes of the election of\nPresident and Vice President, to be electors appointed by a State; and they shall meet in\nthe District and perform such duties as provided by the twelfth article of amendment.\xe2\x80\x9d\n(emphasis added)).\n\n51\n\n\x0c33 Op. O.L.C. 38 (2009) (Holder, Att\xe2\x80\x99y Gen.)\n\nfrom prospective district residents themselves\xe2\x80\x94clearly reveal an understanding that citizens of the District would have no right to vote in national elections, as they were not residents of a state. 8\nLikewise, proponents argue that subsequent historical practice and the\nresultant constitutional structure further confirm this view. For instance,\nsome suggest that the ratification of the Twenty-Third Amendment,\nratified in 1961\xe2\x80\x94which provides that the District \xe2\x80\x9cshall appoint . . . [a]\nnumber of electors of President and Vice President equal to the whole\nnumber of Senators and Representatives in Congress to which the District\nwould be entitled if it were a State, but in no event more than the least\npopulous State; they shall be in addition to those appointed by the States,\nbut they shall be considered, for the purposes of the election of President\nand Vice President, to be electors appointed by a State; and they shall\nmeet in the District and perform such duties as provided by the twelfth\narticle of amendment\xe2\x80\x9d (emphasis added) \xe2\x80\x94provides further support for\nthis view, as this text would serve no purpose if the District were already\n\nSee, e.g., 10 Annals of Cong. 991, 998\xe2\x80\x9399 (1801) (remarks of Rep. Dennis) (stating\nthat because of District residents\xe2\x80\x99 \xe2\x80\x9ccontiguity to, and residence among the members of\n[Congress],\xe2\x80\x9d \xe2\x80\x9cthough they might not be represented in the national body, their voice\nwould be heard. But if it should be necessary [that they be represented], the Constitution\nmight be so altered as to give them a delegate to the General Legislature when their\nnumbers should become sufficient\xe2\x80\x9d); id. at 992 (remarks of Rep. Bird) (assigning \xe2\x80\x9cblame\xe2\x80\x9d\nfor disenfranchisement of District residents to \xe2\x80\x9cthe men who framed the Constitutional\nprovision, who peculiarly set apart this as a District under the national safeguard and\nGovernment\xe2\x80\x9d); 5 The Papers of Alexander Hamilton 189\xe2\x80\x9390 (Harold C. Syrett ed., 1962)\n(reprinting text of subsequently rejected amendment proposed by Alexander Hamilton\nduring the New York ratifying convention: \xe2\x80\x9cThat When the Number of Persons in the\nDistrict of Territory to be laid out for the Seat of the Government of the United States,\nshall according to the Rule for the Apportionment of Representatives and Direct Taxes\nAmount to [left blank] such District shall cease to be parcel of the State granting the\nSame, and Provision shall be made by Congress for their having a District Representation in that Body.\xe2\x80\x9d (emphasis added)); see also 12 Annals of Cong. 487 (1803) (remarks\nof Rep. Smilie) (\xe2\x80\x9cUnder the exercise of exclusive jurisdiction the citizens are deprived of\nall political rights, nor can we confer them.\xe2\x80\x9d); 5 The Documentary History of the Ratification of the Constitution 621 (Merrill Jensen, John P. Kaminski & Gaspare J. Saladino eds.,\n1976) (statement by Samuel Osgood, a delegate to the Massachusetts ratifying convention, that he could accept the Seat of Government provision only if it were amended to\nprovide that the District be \xe2\x80\x9crepresented in the lower House,\xe2\x80\x9d though no such amendment\nwas ultimately included in the amendments recommended by the Massachusetts convention); see generally Adams, 90 F. Supp. 2d at 51\xe2\x80\x9353 (recounting this history).\n8\n\n52\n\n\x0cConstitutionality of the D.C. House Voting Rights Act of 2009\n\na state for purposes of constitutional provisions governing federal elections. Even if this amendment is not conclusive regarding the meaning of\nArticle I, some, including OLC, contend that fidelity to constitutional\nstructure now requires factoring this amendment into the interpretation of\nArticle I.\nC. Judicial Precedent Supports This View\nProponents of this view also argue that recent judicial authority affirms\nthis same conclusion, and point to Adams, which relied on similar evidence from text, history, and precedent to conclude that the District of\nColumbia is not a \xe2\x80\x9cstate\xe2\x80\x9d within the meaning of the Composition Clause.\n90 F. Supp. 2d at 55\xe2\x80\x9356 (\xe2\x80\x9cIn sum, we conclude that constitutional text,\nhistory, and judicial precedent bar us from accepting plaintiffs\xe2\x80\x99 contention\nthat the District of Columbia may be considered a state for purposes of\ncongressional representation under Article I.\xe2\x80\x9d). That decision was summarily affirmed by the Supreme Court. 531 U.S. 941 (2000); see also\nHicks v. Miranda, 422 U.S. 332, 344\xe2\x80\x9345 (1975) (summary affirmance is a\nprecedential ruling on the merits).\nD. The District Clause Provides Only Limited\nAuthority to Congress\nThis argument rejects the notion that the District Clause might provide\nsupport for the legislation, concluding that such direct reliance on Congress\xe2\x80\x99s authority under the District Clause to support District voting\nrepresentation in the House is not persuasive. Its proponents acknowledge\nthat the District Clause gives Congress broad power to provide for the\ngovernance of the District, but contend that what this means is simply that\nCongress has \xe2\x80\x9call legislative powers that the legislature of a state might\nexercise within the state.\xe2\x80\x9d Capital Traction Co. v. Hof, 174 U.S. 1, 5\n(1899). As courts have stressed, Congress\xe2\x80\x99s broad power to provide for\nthe governance of the District does not give it the authority to \xe2\x80\x9ccontravene\nany provision of the Constitution.\xe2\x80\x9d Palmore v. United States, 411 U.S.\n389, 397 (1973) (quoting Hof , 174 U.S. at 5); accord Keller v. Potomac\nElec. Co., 261 U.S. 428, 443\xe2\x80\x9344 (1923); see also Neild v. Dist. of Columbia, 110 F.2d 246, 249 (D.C. Cir. 1984) (\xe2\x80\x9cSubject only to those prohibitions of the Constitution which act directly or by implication upon the\n53\n\n\x0c33 Op. O.L.C. 38 (2009) (Holder, Att\xe2\x80\x99y Gen.)\n\nfederal government, Congress possesses full and unlimited jurisdiction to\nprovide for the general welfare of citizens within the District of Columbia\nby any and every act of legislation which it may deem conducive to that\nend.\xe2\x80\x9d) (emphasis added). Consequently, from this perspective, the District\nClause does not afford Congress the opportunity to override the requirements of the Composition Clause, nor can the Composition Clause reasonably be read to permit Congress to treat the District as a \xe2\x80\x9cstate\xe2\x80\x9d for\npurposes of representation in the House through legislation. Indeed, some\nargue that, if it could be so read, there would be no principled basis for\nconcluding that Congress could not, by statute, give territories voting\nrepresentation in the House as well.\nE. Tidewater Transfer Does Not Support a Contrary Conclusion\nThose who argue that the proposed legislation is unconstitutional, including OLC, contest the reliance of proponents of the pending legislation\non National Mutual Insurance Co. v. Tidewater Transfer Co., 337 U.S.\n582 (1949). That case held that Congress may give Article III courts\njurisdiction over suits brought by citizens of the District of Columbia\nagainst citizens of the several states, even though Article III expressly\nconfers diversity jurisdiction only over cases involving residents of\n\xe2\x80\x9cstates.\xe2\x80\x9d However, opponents argue that the fractured decision in Tidewater Transfer is not persuasive authority for the proposition that Congress may enact legislation that treats the District of Columbia a \xe2\x80\x9cstate\xe2\x80\x9d\nfor purposes of the Composition Clause for at least two reasons. First, the\nholding that Congress could, through legislation, provide that the District\nshould be treated as a state for purposes of Article III diversity jurisdiction was in a plurality opinion that had the support of only three justices\nand should not be given precedential effect. Second, even if the opinion\nwere given some precedential effect, opponents argue that, unlike the\ndecision to extend Article III diversity jurisdiction to cases involving the\nDistrict, the decision to treat the District as a state for purposes of the\nComposition Clause would improperly disturb the balance between the\nUnion and the several states struck in the Constitution, and would therefore exceed the limit Justice Jackson presented in Tidewater Transfer.\n\n54\n\n\x0cConstitutionality of the D.C. House Voting Rights Act of 2009\n\nF. Strong Policy Reasons for Extending Congressional\nVoting Rights Do Not Provide a Basis for\nOverriding Clear Constitutional Text\nSome proponents of the view that this legislation is unconstitutional,\nincluding OLC, acknowledge the strong policy considerations that have\nbeen advanced in support of the extension of congressional voting rights\nto citizens of the District, noting that there is no denying the force of\nthe considerations in favor of enfranchising District residents. See, e.g.,\nLoughborough v. Blake, 18 U.S. 317, 324 (1820) (conceding that \xe2\x80\x9cin\ntheory it might be more congenial to the spirit of our institutions to admit\na representative from the district,\xe2\x80\x9d but omitting any suggestion that Congress might provide such representation by simple legislation); Adams, 90\nF. Supp. 2d at 66 (\xe2\x80\x9cWe do not disagree that defendants have failed to\noffer a compelling justification for denying District residents the right to\nvote in Congress.\xe2\x80\x9d). As important as these constitutional purposes are,\nhowever, they nevertheless argue that the fact that the plain terms of the\nComposition Clause give the people of the states, and only those electors,\nthe right to choose House members is not surprising or at odds with the\ncentral purposes of the founding charter. Likewise, some, including OLC,\nrecognize the arguments that these policy considerations are implicit in\nthe constitutional structure and that, in consequence, Congress should be\nassumed to have the authority to enact the pending legislation unless the\nConstitution clearly prohibits it. OLC\xe2\x80\x99s view, however, is that this proposed legislation would be unconstitutional even if such a clear statement\nrule were appropriate in this context.\n* * * * *\nIn sum, those who find the proposed legislation unconstitutional, including OLC, conclude that Congress may not by statute give the District\nof Columbia voting representation in the House. From this perspective,\nthe relevant constitutional text, original understanding, historical practice,\nand judicial precedent all clearly support the proposition that the District\nis not a \xe2\x80\x9cstate\xe2\x80\x9d within the meaning of the Composition Clause. Even\nacknowledging that the District Clause gives Congress broad power to\nlegislate for the District, proponents of this view contend that the District\n55\n\n\x0c33 Op. O.L.C. 38 (2009) (Holder, Att\xe2\x80\x99y Gen.)\n\nClause does not permit Congress to override the prescriptions of the\nComposition Clause.\nIII. Conclusion\nI have concluded that, in this exceptional case, although the question\nis exceedingly close, my views are different than those offered by the\nOffice of Legal Counsel. For the reasons outlined in Part II above, I\nbelieve that, for each of these constitutional points, there are sufficient\nrejoinders to, at a minimum, place the answer to the constitutional question in doubt. In my view, the arguments of those who find the proposed\nlegislation unconstitutional, including OLC\xe2\x80\x99s analysis, identify no clearly\ncontrolling constitutional text or squarely on-point precedent. What is at\nstake in this legislation is whether the more than half-a-million residents\nof our Nation\xe2\x80\x99s capital, who pay taxes, serve in the Armed Forces, and sit\non federal juries like other Americans, have what the Supreme Court has\nreferred to as the most fundamental of political rights, the franchise. See\nWesberry v. Sanders, 376 U.S. 1, 17\xe2\x80\x9318 (1964) (\xe2\x80\x9cNo right is more precious in a free country than that of having a voice in the election of those\nwho make the laws under which, as good citizens, we must live. Other\nrights, even the most basic, are illusory if the right to vote is undermined.\xe2\x80\x9d); Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886) (\xe2\x80\x9c[T]he political\nfranchise of voting . . . is regarded as a fundamental political right, because preservative of all rights\xe2\x80\x9d). In those circumstances, and in the\nabsence of clear constitutional authority to the contrary, it is my view that\nwe must give weight to the animating purposes of the Constitution\xe2\x80\x94and\nin particular its fundamental elevation of democracy and the right to\nvote\xe2\x80\x94and therefore I conclude that the balance tips in favor of the constitutionality of the proposed legislation.\nERIC H. HOLDER, JR.\nAttorney General\n\n56\n\n\x0cAssistance of Counsel in Removal Proceedings ( II )\nThe Attorney General\xe2\x80\x99s decision in Matter of Compean, Bangaly & J-E-C-, 24 I. & N.\nDec. 710 (Att\xe2\x80\x99y Gen. 2009); Assistance of Counsel in Removal Proceedings ( I ), 33\nOp. O.L.C. 1 (2009) (Mukasey, Att\xe2\x80\x99y Gen.), is vacated.\nThe Acting Director of the Executive Office for Immigration Review shall initiate\nrulemaking procedures as soon as practicable to evaluate the pre-Compean framework\nfor reviewing claims of ineffective assistance of counsel in deportation proceedings\nand to determine what modifications should be proposed for public consideration.\nPending the issuance of a final rule, the Board of Immigration Appeals and Immigration\nJudges should apply the pre-Compean standards to all pending and future motions to\nreopen removal proceedings based upon ineffective assistance of counsel.\nJune 3, 2009\n\nOPINION IN REMOVAL PROCEEDINGS\nMATTER OF ENRIQUE SALAS COMPEAN, RESPONDENT\nMATTER OF SYLLA BANGALY, RESPONDENT\nMATTER OF J-E-C-, ET AL., RESPONDENTS\nOn January 7, 2009, Attorney General Mukasey overruled in part the\ndecisions of the Board of Immigration Appeals (\xe2\x80\x9cBoard\xe2\x80\x9d) in Matter of\nLozada, 19 I. & N. Dec. 637 (BIA 1988), and Matter of Assaad, 23 I. & N.\nDec. 553 (BIA 2003), and affirmed the Board\xe2\x80\x99s orders denying reopening\nin Matter of Compean, A078 566 977 (BIA May 20, 2008), Matter of\nBangaly, A078 555 848 (BIA Mar. 7, 2008), and Matter of J-E-C- (BIA\nApr. 8, 2008). See Matter of Compean, Bangaly & J-E-C-, 24 I. & N.\nDec. 710 (Att\xe2\x80\x99y Gen. 2009) (\xe2\x80\x9cCompean\xe2\x80\x9d); Assistance of Counsel in Removal Proceedings ( I ), 33 Op. O.L.C. 1 (2009) (Mukasey, Att\xe2\x80\x99y Gen.).\nIn Lozada, the Board established the procedural requirements for filing\na motion to reopen deportation (now removal) proceedings based upon a\nclaim of ineffective assistance of counsel and required the alien to show\nthat he was prejudiced by the action or inaction of his counsel. Lozada, 19\nI. & N. Dec. at 639\xe2\x80\x9340. The Compean decision acknowledged that the\nLozada framework had \xe2\x80\x9clargely stood the test of time,\xe2\x80\x9d having been\nexpressly reaffirmed by the Board fifteen years after its initial adoption.\nCompean, 24 I. & N. Dec. at 731; see also Assaad, 23 I. & N. Dec. at 556\xe2\x80\x93\n57 (affirming the application of Lozada to removal proceedings). Nonetheless, Compean both rejected Lozada\xe2\x80\x99s constitutional reasoning and\n57\n\n\x0c33 Op. O.L.C. 57 (2009) (Holder, Att\xe2\x80\x99y Gen.)\n\nordered the Board not to rely upon the Lozada framework, even as a\ndiscretionary matter. Instead, Compean set forth, as an exercise of the\nAttorney General\xe2\x80\x99s administrative discretion, a new substantive and\nprocedural framework for reviewing all such claims and a formulation of\nthe prejudice showing different from that followed by many courts, despite the limited discussion of the Lozada framework in the briefs submitted in Compean by the parties and amici curiae. Compean further provided that this new administrative framework should apply \xe2\x80\x9chenceforth,\xe2\x80\x9d\neven though the decision acknowledged it might conflict with the Lozada-based approach taken by a number of federal courts of appeals. See\nCompean, 24 I. & N. Dec. at 730 & n.8.\nFor the reasons stated herein, I have determined that it is appropriate to\nreconsider the January 7, 2009 decision.\nEstablishing an appropriate framework for reviewing motions to reopen\nimmigration proceedings based on claims of ineffective assistance of\ncounsel is a matter of great importance. I do not believe that the process\nused in Compean resulted in a thorough consideration of the issues involved, particularly for a decision that implemented a new, complex\nframework in place of a well-established and longstanding practice that\nhad been reaffirmed by the Board in 2003 after careful consideration. The\npreferable administrative process for reforming the Lozada framework\nis one that affords all interested parties a full and fair opportunity to\nparticipate and ensures that the relevant facts and analysis are collected\nand evaluated.\nAccordingly, I direct the Acting Director of the Executive Office for\nImmigration Review to initiate rulemaking procedures as soon as practicable to evaluate the Lozada framework and to determine what modifications should be proposed for public consideration. After soliciting information and public comment, through publication of a proposed rule in the\nFederal Register, from all interested persons on a revised framework for\nreviewing claims of ineffective assistance of counsel in immigration\nproceedings, the Department of Justice may, if appropriate, proceed with\nthe publication of a final rule.\nIn Compean, the introduction of a new procedural framework depended\nin part on Attorney General Mukasey\xe2\x80\x99s conclusion that there is no constitutional right to effective assistance of counsel in removal proceedings.\nBecause that conclusion is not necessary either to decide these cases\n58\n\n\x0cAssistance of Counsel in Removal Proceedings ( II )\n\nunder pre-Compean standards or to initiate a rulemaking process, this\nOrder vacates Compean in its entirety. To ensure that there is an established framework in place pending the issuance of a final rule, the Board\nand Immigration Judges should apply the pre-Compean standards to all\npending and future motions to reopen based upon ineffective assistance of\ncounsel, regardless of when such motions were filed. The litigating positions of the Department of Justice will remain unaffected by this Order.\nFinally, prior to Compean, the Board itself had not resolved whether its\ndiscretion to reopen removal proceedings includes the power to consider\nclaims of ineffective assistance of counsel based on conduct of counsel\nthat occurred after a final order of removal had been entered. Given the\nabsence of a pre-Compean standard of the Board to apply pending issuance of a final rule, I resolve the question in the interim by concluding\nthat the Board does have this discretion, and I leave it to the Board to\ndetermine the scope of such discretion.\nTurning to the merits of the particular cases at issue, I find that, for the\nreasons stated by the Board, its orders denying reopening of the three\nmatters reviewed in Compean were appropriate under the Lozada framework and standards as established by the Board before Compean. On that\nbasis, I concur with Attorney General Mukasey\xe2\x80\x99s decision to affirm the\nBoard\xe2\x80\x99s decisions denying reopening of these matters. Compean, 24\nI. & N. Dec. at 743.\nERIC H. HOLDER, JR.\nAttorney General\n\n59\n\n\x0c'