b'Views on Legislation Making the District of\nColumbia a Congressional District\nThe District of Columbia Voting Rights Act of 2009 is unconstitutional.\nCongress may not by statute give the District of Columbia voting representation in the\nHouse.\nThe District of Columbia is not a \xe2\x80\x9cState\xe2\x80\x9d within the meaning of the Composition Clause,\nwhich governs the membership of the House of Representatives.\nThe District Clause gives Congress broad power to legislate for the District, but it does\nnot permit Congress to override the prescriptions of the Composition Clause.\nFebruary 25, 2009\n\nMEMORANDUM OPINION FOR THE ATTORNEY GENERAL\nWe have prepared the attached letter for transmittal to the Counsel to\nthe President.* The letter elaborates on comments the Office of Legal\nCounsel, at the request of the Office of Management and Budget, recently\nprovided on H.R. 157 and S. 160, the House and Senate versions of the\nDistrict of Columbia Voting Rights Act of 2009. See E-mail for Adrien\nSilas, Office of Legislative Affairs, from David Barron, Acting Assistant\nAttorney General, Office of Legal Counsel, Re: H.R. 157 and S. 160, D.C.\nHouse Voting Rights (Feb. 9, 2009). We have also prepared for transmittal\nthe attached executive summary of the constitutional analysis set forth in\nthe letter.\nDAVID J. BARRON\nActing Assistant Attorney General\nOffice of Legal Counsel\n\n* Editor\xe2\x80\x99s Note: The Attorney General provided a different memorandum opinion to\nthe Counsel to the President. See Constitutionality of the D.C. House Voting Rights Act\nof 2009, 33 Op. O.L.C. 38 (2009).\n\n156\n\n\x0cViews on Legislation Making the District of Columbia a Congressional District\n\nEXECUTIVE SUMMARY\nThe attached letter addresses the constitutionality of the District of Columbia Voting Rights Act of 2009, which would give the District of\nColumbia one voting member in the House of Representatives. The key\nprovision of the two bills now pending in Congress states: \xe2\x80\x9cNotwithstanding any other provision of law, the District of Columbia shall be considered a Congressional district for purposes of representation in the House\nof Representatives.\xe2\x80\x9d\nIn recent years, this Office has twice concluded that essentially identical legislation was unconstitutional. See Constitutionality of the D.C.\nVoting Rights Act of 2007, 31 Op. O.L.C. 147 (2007) (statement of John\nP. Elwood, Deputy Assistant Attorney General, Office of Legal Counsel);\nE-mail for Velma Taylor, Office of Legislative Affairs, from Michelle\nBoardman, Deputy Assistant Attorney General, Office of Legal Counsel,\nRe: H.R. 5388, the District of Columbia Fair and Equal House Voting\nRights Act of 2006 (May 22, 2006). Although Congress had never until\nrecently sought to give the District voting representation without statehood, our analysis of related questions for at least 40 years makes clear\nthat our recent conclusions reflect the consistent and longstanding view of\nthe Office.\nWe have carefully reviewed the arguments that have been advanced in\nsupport of the pending legislation, and we now reaffirm the Office\xe2\x80\x99s\nearlier conclusion. In so doing, we are mindful of the exceptionally strong\npolicy reasons for extending congressional voting rights to citizens of the\nDistrict. We further recognize that, in light of those policy considerations,\nit has been argued that any doubts concerning the constitutionality of the\npending legislation should, if reasonably possible, be resolved in favor of\nCongress\xe2\x80\x99s authority to give citizens of the District a voice in the national\nlegislature. After conducting a careful and thorough review of all relevant\nauthorities, however, we conclude that the legislation is clearly unconstitutional even under that demanding standard.\nConstitutional text, structure, original understanding, historical practice, and judicial precedent support this Office\xe2\x80\x99s longstanding view. The\nkey constitutional provision is the Composition Clause, which governs the\n157\n\n\x0c33 Op. O.L.C. 156 (2009)\n\nmembership of the House of Representatives. The Clause provides: \xe2\x80\x9cThe\nHouse of Representatives shall be composed of members chosen every\nsecond year by the people of the several states, and the electors in each\nstate shall have the qualifications 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. The\nrepeated textual references to \xe2\x80\x9cstates\xe2\x80\x9d or \xe2\x80\x9cstate\xe2\x80\x9d in this Clause, when\ncombined with the numerous constitutional provisions relating to federal\nelections that similarly restrict voting to \xe2\x80\x9cstates\xe2\x80\x9d and their people, reflect\na clear intention to exclude non-state entities, such as the District, unless\nthe Constitution expressly provides otherwise. See U.S. Const. amend.\nXXIII, \xc2\xa7 1 (The District \xe2\x80\x9cshall appoint . . . [a] number of electors of\nPresident and Vice President equal to the whole number of Senators and\nRepresentatives in Congress to which the District would be entitled if it\nwere a State, but in no event more than the least populous State; they shall\nbe in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to\nbe electors appointed by a State; and they shall meet in the District and\nperform such duties as provided by the twelfth article of amendment.\xe2\x80\x9d)\n(emphasis added). Our conclusion is reinforced by powerful evidence that\nthe Framers regarded states as uniquely important components of the\nfederal constitutional structure. See Adams v. Clinton, 90 F. Supp. 2d 35,\n56 (D.D.C. 2000) (\xe2\x80\x9cThe Constitution\xe2\x80\x99s repeated references to states . . .\nare reflections of the Great Compromise forged to ensure the Constitution\xe2\x80\x99s ratification. There is simply no evidence that the Framers intended\nthat not only citizens of states, but unspecified others as well, would share\nin the congressional franchise.\xe2\x80\x9d). It is further confirmed by Founding-era\nstatements and subsequent historical practice.\nRecent judicial authority affirms this same conclusion. In a thorough\nand thoughtful opinion, a special three-judge panel of the United States\nDistrict Court for the District of Columbia relied on similar evidence from\ntext, history, and precedent to conclude that the District of Columbia is\nnot a \xe2\x80\x9cstate\xe2\x80\x9d within the meaning of the Composition Clause. Adams, 90\nF. 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. Adams v. Clinton, 531 U.S. 941\n158\n\n\x0cViews on Legislation Making the District of Columbia a Congressional District\n\n(2000); see also Hicks v. Miranda, 422 U.S. 332, 344\xe2\x80\x9345 (1975) (summary affirmance is a precedential ruling on the merits).\nConceding that the District is not a \xe2\x80\x9cState\xe2\x80\x9d within the meaning of the\nComposition Clause, some have argued that Congress may evade the\nstrictures of that Clause by invoking its power to \xe2\x80\x9cexercise exclusive\nlegislation in all cases whatsoever\xe2\x80\x9d over the District.\xe2\x80\x9d See U.S. Const.\nart. I, \xc2\xa7 8, cl. 17. Adams did not directly address this argument, but the\nreliance on Congress\xe2\x80\x99s authority under the District Clause to support\nDistrict voting representation in the House is not persuasive. The District\nClause gives Congress broad power to provide for the governance of the\nDistrict, but it does not allow Congress to \xe2\x80\x9ccontravene any provision of\nthe Constitution.\xe2\x80\x9d Palmore v. United States, 411 U.S. 389, 397 (1973)\n(quoting Capital Traction Co. v. Hof , 174 U.S. 1, 5 (1899)); accord\nKeller v. Potomac Elec. Co., 261 U.S. 428, 443\xe2\x80\x9344 (1923). Nor can the\nComposition Clause reasonably be read to permit Congress to treat the\nDistrict as a \xe2\x80\x9cState\xe2\x80\x9d for purposes of representation in the House. Indeed, if\nit could be so read, we see no principled basis for concluding that Congress could not, by statute, give territories voting representation in the\nHouse as well.\nIn arguing to the contrary, proponents of the pending legislation rely\nheavily on National Mutual Insurance Co. v. Tidewater Transfer Co., 337\nU.S. 582 (1949). That case held 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 Thus, the proponents of this legislation contend, the Composition Clause similarly should not prevent Congress from giving the District\nvoting representation in the House, even though that Clause refers only to\n\xe2\x80\x9cStates\xe2\x80\x9d and not the District. As we explain in our letter, however, Tidewater Transfer is not persuasive authority for that proposition. Indeed, a\nclose examination reveals that the two opinions supporting the judgment\nin that case (neither of which drew support from more than three Justices)\ndo not support it. The other relevant judicial precedents provide further\nsupport for our conclusion.\nIn sum, we conclude that Congress may not by statute give the District\nof Columbia voting representation in the House. The relevant constitu159\n\n\x0c33 Op. O.L.C. 156 (2009)\n\ntional text, original understanding, historical practice, and judicial precedent all clearly support the proposition that the District is not a \xe2\x80\x9cState\xe2\x80\x9d\nwithin the meaning of the Composition Clause. The District Clause gives\nCongress broad power to legislate for the District, but it does not permit\nCongress to override the prescriptions of the Composition Clause.\nLETTER\nAt the request of the Office of Management and Budget, the Office of\nLegal Counsel recently provided comments on H.R. 157 and S. 160, the\nHouse and Senate versions of the District of Columbia Voting Rights Act\nof 2009. See E-mail for Adrien Silas, Office of Legislative Affairs,\nfrom David Barron, Acting Assistant Attorney General, Office of Legal\nCounsel, Re: H.R. 157 and S. 160, D.C. House Voting Rights (Feb. 9,\n2009). In those comments, the Office set forth its conclusion that this\nlegislation is unconstitutional and offered to provide a further elaboration\nof its reasoning upon request. I am now writing in response to your office\xe2\x80\x99s request for a more detailed explanation of the basis for our constitutional conclusion and further consideration of the constitutional arguments of the proponents of the legislation. We have also enclosed a\nseparate, executive summary of our analysis for your convenience.\nH.R. 157 and S. 160 would give the District of Columbia one voting\nmember in the House of Representatives. In particular, each bill includes\na provision stating: \xe2\x80\x9cNotwithstanding any other provision of law, the\nDistrict of Columbia shall be considered a Congressional district for\npurposes of representation in the House of Representatives.\xe2\x80\x9d H.R. 157,\n\xc2\xa7 2(a); S. 160, \xc2\xa7 2(a). Significantly, neither bill purports to grant the\nDistrict statehood. Instead, each bill would grant the citizens of the District the authority to elect a voting member of the House of Representatives by identifying it as a congressional district in its own right.\nIn recent years, this Office has twice concluded that essentially identical legislation was unconstitutional. See Constitutionality of the D.C.\nVoting Rights Act of 2007, 31 Op. O.L.C. 147, 147 (May 23, 2007) (\xe2\x80\x9cD.C.\nVoting Rights Act \xe2\x80\x9d) (statement of John P. Elwood, Deputy Assistant\nAttorney General, Office of Legal Counsel) (\xe2\x80\x9cS. 1257 violates the Constitution\xe2\x80\x99s provisions governing the composition and election of the United\nStates Congress.\xe2\x80\x9d); E-mail for Velma Taylor, Office of Legislative Af160\n\n\x0cViews on Legislation Making the District of Columbia a Congressional District\n\nfairs, from Michelle Boardman, Deputy Assistant Attorney General,\nOffice of Legal Counsel, Re: H.R. 5388, the District of Columbia Fair\nand Equal House Voting Rights Act of 2006 (May 22, 2006) (\xe2\x80\x9cWe conclude that the creation of a District of Columbia seat by this legislation is\nunconstitutional. Membership in the House of Representatives is limited\nto representatives elected by the people of the several States, and the\nDistrict of Columbia is not a State.\xe2\x80\x9d). And although until recently Congress had never sought to give the District voting representation without\nstatehood, our analysis of related questions for at least 40 years makes\nclear that our recent conclusions reflect the consistent and longstanding\nview of the Office. See, e.g., Letter for Benjamin Zelenko, Committee on\nthe Judiciary, House of Representatives, from Martin F. Richman, Acting\nAssistant Attorney General, Office of Legal Counsel (Aug. 11, 1967)\n(explaining that \xe2\x80\x9cprovisions for elections of Senators and Representatives\nin the Constitution are stated in terms of the States, and the District of\nColumbia is not a State\xe2\x80\x9d); Memorandum for Warren Christopher, Deputy\nAttorney General, from Frank M. Wozencraft, Assistant Attorney General, Office of Legal Counsel, Re: Budget, Economic, and State of the\nUnion Messages (Oct. 16, 1968) (same); District of Columbia Representation in Congress: Hearing on S.J. Res. 65 Before the Subcomm. on the\nConstitution of the S. Comm. on the Judiciary, 95th Cong. 16\xe2\x80\x9329 (1978)\n(testimony of John M. Harmon, Assistant Attorney General, Office of\nLegal Counsel) (stating that, \xe2\x80\x9c[i]f the District is not to be a state, then an\namendment [to the Constitution] is required\xe2\x80\x9d to give the District voting\nrepresentation in Congress, as \xe2\x80\x9cwe do not believe that the word \xe2\x80\x98state\xe2\x80\x99 as\nused in Article I can fairly be construed to include the District under any\ntheory of \xe2\x80\x98nominal statehood\xe2\x80\x99\xe2\x80\x9d).\nWe have carefully reviewed the arguments that have been advanced in\nsupport of the pending legislation, and we now reaffirm the Office\xe2\x80\x99s\nearlier conclusion. In so doing, we are mindful of the strong policy considerations that have been advanced in support of the extension of congressional voting rights to citizens of the District. There is no denying the\nforce of the considerations in favor of enfranchising District residents.\nSee, e.g., Loughborough v. Blake, 18 U.S. 317, 324 (1820) (conceding\nthat \xe2\x80\x9cin theory it might be more congenial to the spirit of our institutions\nto admit a representative from the district,\xe2\x80\x9d but omitting any suggestion\nthat Congress might provide such representation by simple legislation);\n161\n\n\x0c33 Op. O.L.C. 156 (2009)\n\nAdams v. Clinton, 90 F. Supp. 2d 35, 66 (D.D.C. 2000) (\xe2\x80\x9cWe do not\ndisagree that defendants have failed to offer a compelling justification for\ndenying District residents the right to vote in Congress.\xe2\x80\x9d). We are also\naware that some have argued that these policy considerations are implicit\nin the constitutional structure and that, in consequence, Congress should\nbe assumed to have the authority to enact the pending legislation unless\nthe Constitution clearly prohibits it. See Peter Raven-Hansen, Congressional Representation for the District of Columbia: A Constitutional\nAnalysis, 12 Harv. J. on Legis. 167, 191 (1975) (\xe2\x80\x9cIf no constitutional\npurpose is served by exclusion of the District, the broader principles of\nrepresentative government which the Constitution is meant to effect favor\nmaking the District a nominal state for purposes of congressional representation.\xe2\x80\x9d); accord Ending Taxation Without Representation: The Constitutionality of S. 1257: Hearing Before the S. Comm. on the Judiciary,\n110th Cong. 18\xe2\x80\x9322 (May 23, 2007) (S. Hrg. No. 110-440; Serial No.\nJ-110-38) (statement of Patricia Wald) (\xe2\x80\x9cWald Statement\xe2\x80\x9d). Our view,\nhowever, is that this proposed legislation would be unconstitutional even\nif such a clear statement rule were appropriate in this context.\nWe begin by explaining that Section 2 of Article I of the Constitution,\nknown as the Composition Clause, bars Congress from giving the District\nof Columbia the authority to elect a voting member of the House of Representatives unless and until the District becomes a state.1 This conclusion\nfollows from the plain text of the Constitution and draws additional support from founding-era understandings, subsequent historical practice, and\njudicial precedent. In the course of our discussion, we consider the main\narguments that have been offered as to why the text and the historical\nevidence are not as clear as we believe them to be. We next consider the\narguments, offered by some prominent defenders of the proposed legislation, and similar versions of it, that the District of Columbia Clause in\nArticle I authorizes Congress to grant the District voting representation in\nthe House, notwithstanding the Composition Clause. Two of these arguments merit particular consideration: (1) that Congress\xe2\x80\x99s so-called \xe2\x80\x9cplenary\xe2\x80\x9d power under the District Clause, U.S. Const. art. I, \xc2\xa7 8, cl. 17, is such\n1 We wish to be clear that although this Office has in the past opined that District citizens\xe2\x80\x99 voting rights can only be effected by constitutional amendment, we do not address\nhere whether and how Congress may, by statute, confer statehood on the District.\n\n162\n\n\x0cViews on Legislation Making the District of Columbia a Congressional District\n\nthat it may give the District the authority to elect a voting member of the\nHouse even though the District is not a state, and cannot be treated as one,\nfor purposes of the Composition Clause; and (2) that Congress possesses a\nmore specific authority under the District Clause to treat the District as a\n\xe2\x80\x9cstate\xe2\x80\x9d for purposes of the Composition Clause, even if Congress does not\nformally confer statehood on the District. We have carefully reviewed\neach of these arguments and find neither to be sound. Accordingly, we\nconclude that the proposed legislation is unconstitutional and therefore\nreaffirm the Office\xe2\x80\x99s consistent position that Congress may not give\nDistrict residents the authority to elect a voting member of the House of\nRepresentatives, such as by denominating the District a \xe2\x80\x9ccongressional\ndistrict,\xe2\x80\x9d because the District is not a state.\nI.\nWe begin our analysis with a consideration of the text of the constitutional provision governing the composition of the House of Representatives. This provision, known as the Composition Clause, provides in full:\n\xe2\x80\x9cThe House of Representatives shall be composed of members chosen\nevery second year by the people of the several states, and the electors in\neach state shall have the 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.\nIt has been suggested that by providing that voting members of the\nHouse be chosen by \xe2\x80\x9cthe people of the several states,\xe2\x80\x9d the Clause supplies\na plausible textual basis for concluding that Congress may give the District voting representation in the House, even though the District is not a\nstate. See, e.g., Wald Statement at 19 (\xe2\x80\x9c[I]t is the House that has been\nidentified as deriving its power from the people and not necessarily from\nthe States.\xe2\x80\x9d); see also Sen. Orrin G. Hatch. \xe2\x80\x9cNo Right is More Precious in\na Free Country\xe2\x80\x9d: Allowing Americans in the District of Columbia to\nParticipate in National Self-Government, 45 Harv. J. on Legis. 287, 304\n(2008) (arguing that the Constitution allows Congress by statute to give\nthe District voting representation in the House but not in the Senate because \xe2\x80\x9cthe House was designed to represent people, whereas the Senate\nwas designed to represent states\xe2\x80\x9d). The argument is that the Clause confers authority on \xe2\x80\x9cthe people\xe2\x80\x9d rather than on the states, and so residents of\nthe District\xe2\x80\x94part of \xe2\x80\x9cthe people\xe2\x80\x9d of the United States as a whole\xe2\x80\x94are not\n163\n\n\x0c33 Op. O.L.C. 156 (2009)\n\nexcluded from the scope of the Clause. This argument is reinforced by\nthose who contend that the use of the word \xe2\x80\x9cstates\xe2\x80\x9d in the Clause should\nnot be deemed preclusive of constituencies that might encompass the\nDistrict. See Adams, 90 F. Supp. 2d at 97 (Oberdorfer, J., dissenting)\n(concluding that \xe2\x80\x9cthe literal references to the \xe2\x80\x98States\xe2\x80\x99 in Article I do not\nnecessitate denying to the people of the District the right to vote for\nvoting representation in the House of Representatives\xe2\x80\x9d); id. at 87 (\xe2\x80\x9cIn\nessence, the defendants would apply the maxim expressio unius est exclusio alterius\xe2\x80\x94the expression of one thing is the exclusion of another\xe2\x80\x94as\nthe basis for interpreting the term \xe2\x80\x98State.\xe2\x80\x99 . . . As the Supreme Court has\nexplained, \xe2\x80\x98The \xe2\x80\x9cexclusio\xe2\x80\x9d is often the result of inadvertence or accident,\nand the maxim ought not to be applied, when its application, having\nregard to the subject-matter to which it is to be applied, leads to inconsistency or injustice.\xe2\x80\x99\xe2\x80\x9d (citation omitted)).\nThe text, however, does not bear this construction, particularly when\nconsidered in context and in light of the constitutional structure. The\nlanguage itself seems clear in limiting the right to choose \xe2\x80\x9cmembers\xe2\x80\x9d of\nthe House to people from states. 2 Certainly nothing in the text of the\nComposition Clause indicates that the people of an entity other than a\nstate may do so. The Composition Clause commands that representatives\nbe chosen by \xe2\x80\x9cthe people of the several states,\xe2\x80\x9d not by \xe2\x80\x9cthe people of the\nUnited States.\xe2\x80\x9d U.S. Const. art. I, \xc2\xa7 2, cl. 1. As such, the reference to \xe2\x80\x9cthe\npeople\xe2\x80\x9d must be read in connection with the language that follows (\xe2\x80\x9cof the\nseveral states\xe2\x80\x9d). For that reason, the language does not naturally suggest\nthe possibility that \xe2\x80\x9cpeople\xe2\x80\x9d who are citizens of non-state entities\xe2\x80\x94such\nas, for instance, the citizens of federal territories or of the District\xe2\x80\x94would\nhave a constitutional right to choose House representatives. Instead, the\nreference to \xe2\x80\x9cthe people\xe2\x80\x9d is best read to underscore that members of the\nHouse would be selected by popular vote within \xe2\x80\x9cthe several states\xe2\x80\x9d\nwhereas members of the Senate would be selected (prior to the adoption\nof the Seventeenth Amendment) by state legislatures. It is this critical\ndistinction that underlies the familiar description of the House of Representatives as \xe2\x80\x9cthe people\xe2\x80\x99s house.\xe2\x80\x9d\n\n2 For purposes of this letter we use the term \xe2\x80\x9cmembers\xe2\x80\x9d to refer to voting members,\nwhere not otherwise modified, as the District of Columbia has a delegate to the House.\n\n164\n\n\x0cViews on Legislation Making the District of Columbia a Congressional District\n\nFurther language in the Composition Clause underscores the conclusion\nthat only the people of a state are empowered to choose members of the\nHouse. Immediately after providing that members of the House shall be\nchosen by \xe2\x80\x9cthe people of the several States,\xe2\x80\x9d the Clause directs that the\nelectors in House elections \xe2\x80\x9cshall have the qualifications requisite for\nelectors of the most numerous branch of the state legislature.\xe2\x80\x9d U.S. Const.\nart. 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\ncharacterized as a legislature for the entire District.\xe2\x80\x9d Adams, 90 F. Supp.\n2d at 47; see also id. at 49 (\xe2\x80\x9cThe impossibility of treating Congress as the\nlegislature under that clause is manifest, as doing so would mean that\nCongress 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 any State, the executive authority thereof shall issue writs\nof election to fill such vacancies.\xe2\x80\x9d As the Adams court explained, this\nprovision would be anomalous as applied to the District. Leaving aside\nthe fact that the Mayor of the District is a relatively recent office, \xe2\x80\x9cit is\nCongress that is the ultimate executive authority for the District.\xe2\x80\x9d Id. at\n49. And \xe2\x80\x9c[t]he possibility that the Framers intended Congress to fill its\nown vacancies seems far too much of a stretch, even if the constitutional\nfabric were more flexible than it appears to be.\xe2\x80\x9d Id.; see also U.S. Const.\nart. I, \xc2\xa7 2, cl. 2 (\xe2\x80\x9cNo person shall be a Representative . . . who shall not,\nwhen elected, be an inhabitant of that State in which he shall be chosen.\xe2\x80\x9d)\n(emphasis added).\nNor is this textual conclusion rooted merely in the provisions of the\noriginal compact and thus perhaps the consequence of an outdated construction that has been overtaken by understandings that have developed\nover time. It is confirmed by a much more recent constitutional development. Section 1 of the Twenty-Third Amendment, ratified in 1961, provides that the District \xe2\x80\x9cshall appoint . . . [a] number of electors of President and Vice President equal to the whole number of Senators and\nRepresentatives in Congress to which the District would be entitled if it\nwere a state, but in no event more than the least populous state; they shall\nbe in addition to those appointed by the states, but they shall be considered, for the purposes of the election of President and Vice President, to\nbe electors appointed by a State; and they shall meet in the District and\nperfonn such duties as provided by the twelfth article of amendment.\xe2\x80\x9d\n165\n\n\x0c33 Op. O.L.C. 156 (2009)\n\nThis text would serve no purpose if the District were already a state for\npurposes of constitutional provisions governing federal elections.\nWe are aware of the argument that the Twenty-Third Amendment is not\nas significant as it would appear to be. Judge Oberdorfer, for example, has\nargued in dissent in Adams that \xe2\x80\x9cthe suggestion that the understanding of\nthe people adopting a constitutional amendment in 1961 could confirm the\n1787 understanding of the Framers of the Constitution appears to have no\nprecedent in constitutional interpretation.\xe2\x80\x9d 90 F. Supp. 2d at 98. That\nargument might have some force if the historical evidence demonstrated\nthat \xe2\x80\x9cthe 1787 understanding of the Framers\xe2\x80\x9d was that citizens of the\nDistrict would enjoy voting representation in Congress. In such an event,\none could argue that the understanding of the Framers should trump the\nmistaken and contrary understanding of a later generation. As we explain\nat greater length below, however, the evidence from the Founding era is\nwholly consistent with the evident understanding of those who drafted and\nratified the Twenty-Third Amendment. But whether or not the TwentyThird Amendment is confirmatory of the original understanding, the\nquestion at issue here is not whether the nation should be bound by what\nhappened to be the prevailing \xe2\x80\x9cunderstanding of the people adopting a\nconstitutional amendment in 1961\xe2\x80\x9d; it is whether a particular understanding carries interpretive weight when it is embodied in the text of the\nConstitution itself. Fidelity to constitutional structure is a well-established\ncanon of interpretation. See, e.g., McCulloch v. Maryland, 17 U.S.\n(4 Wheat.) 316, 414\xe2\x80\x9315 (1819); see generally Charles L. Black, Jr., Structure and Relationship in Constitutional Law (1969); Akhil Reed Amar,\nIntratextualism, 112 Harv. L. Rev. 747 (1999). Accordingly, we cannot\nagree with Judge Oberdorfer\xe2\x80\x99s contention that an understanding expressly\nand unambiguously codified in the text of one constitutional provision\nmay be entirely ignored when interpreting a related constitutional provision. Regardless whether one looks to Article I or the Twenty-Third\nAmendment\xe2\x80\x94and one should look to both\xe2\x80\x94one arrives at the same\nresult: participation in federal elections and representation in the national\ngovernment, except where the Constitution expressly provides otherwise,\nis limited to the people of the \xe2\x80\x9cstates.\xe2\x80\x9d\nIt is clear, moreover, that the District is not a state. The District Clause\nitself makes that much plain, see U.S. Const. art. I, \xc2\xa7 8, cl. 17, and the\nproposed bills do not purport to alter that fact. They do not, for example,\n166\n\n\x0cViews on Legislation Making the District of Columbia a Congressional District\n\nentitle District residents to choose two senators, an essential aspect of\nstatehood. (The Framers did not merely give each state a right to be represented by two Senators; they deemed this aspect of the Great Compromise\nso sacrosanct that they included in Article V of the Constitution a provision that purports to foreclose the possibility of a constitutional amendment that would deprive any state of this right without its consent.) Nor\nwould these bills limit Congress\xe2\x80\x99s authority to control the District\xe2\x80\x99s\noperations under the District Clause, even though states enjoy independent authorities pursuant to their own constitutions and do not, as the\nDistrict does, derive their powers from congressional enactments. Instead,\nthe bills seek only to make the District an independent congressional\ndistrict, untied to any state, and on that basis to give its \xe2\x80\x9cpeople\xe2\x80\x9d the\npower to elect a voting member of the House. 3 But that is precisely what\nthe text of the Composition Clause precludes.\nThose who argue in favor of the proposed legislation\xe2\x80\x99s constitutionality\ncontend that the broader purposes of the Constitution are best served by\nconcluding that the Composition Clause would permit District residents to\nhave voting representation in the House. They argue that \xe2\x80\x9cthe right to vote\n3 The pending legislation\xe2\x80\x99s conspicuous refusal to treat the District as a state, even for\npurposes of representation in the House alone, is underscored by the provision limiting\nthe District\xe2\x80\x99s representation in the House to a maximum of one member regardless of\npopulation. Section 2(b)(1) of both bills would amend 2 U.S.C. \xc2\xa7 2a, which governs the\napportionment of representatives, by inserting a new subsection (d), which would provide:\n\xe2\x80\x9cThis section shall apply with respect to the District of Columbia in the same manner as\nthis section applies to a State, except that the District of Columbia may not receive more\nthan one Member under any reapportionment of Members.\xe2\x80\x9d This provision raises serious\nconstitutional concerns in its own right. Section 2 of the Fourteenth Amendment in\nrelevant part provides: \xe2\x80\x9cRepresentatives shall be apportioned among the several States\naccording to their respective numbers, counting the whole number of persons in each\nState, excluding Indians not taxed.\xe2\x80\x9d Even assuming that Congress could by statute treat\nthe District as a \xe2\x80\x9cstate\xe2\x80\x9d for purposes of representation in the House, any such representation would be subject to the constitutional requirement that the number of representatives\nassigned to each state be allocated on the basis of population. The pending legislation\nwould seem to violate that requirement, as it would provide that \xe2\x80\x9cthe District of Columbia\nmay not receive more than one Member under any reapportionment of Members.\xe2\x80\x9d We\nnote that, under each bill\xe2\x80\x99s non-severability provision, this constitutional infirmity would\nthreaten to render the entire legislation invalid. See S. 160, \xc2\xa7 6(a) (\xe2\x80\x9cIf any provision of\nthis Act or any amendment made by this Act is declared or held invalid or unenforceable,\nthe remaining provisions of this Act and any amendment made by this Act shall be treated\nand deemed invalid and shall have no force or effect of law.\xe2\x80\x9d); H.R. 157, \xc2\xa7 4 (same).\n\n167\n\n\x0c33 Op. O.L.C. 156 (2009)\n\nis one of the most important principles of democracy.\xe2\x80\x9d Viet D. Dinh &\nAdam H. Charnes, The Authority of Congress to Enact Legislation to\nProvide the District of Columbia with Voting Representation in the\nHouse of Representatives at 19 (Nov. 2004), https://www.dcvote.org/\nsites/default/files/upload/vietdinh112004.pdf (\xe2\x80\x9cDinh & Charnes\xe2\x80\x9d); see\nalso id. (noting that the right to vote is regarded as \xe2\x80\x9ca fundamental political right, because preservative of all rights\xe2\x80\x9d (quoting Yick Wo v. Hopkins,\n118 U.S. 356, 370 (1886)); Adams, 90 F. Supp. 2d at 73 (Oberdorfer, J.,\ndissenting) (\xe2\x80\x9c\xe2\x80\x98No right is more precious in a free country than that of\nhaving a voice in the election of those who make the laws under which, as\ngood citizens, we must live. Other rights, even the most basic, are illusory\nif the right to vote is undermined.\xe2\x80\x99\xe2\x80\x9d (quoting Wesberry v. Sanders, 376\nU.S. 1, 17\xe2\x80\x9318 (1964)). \xe2\x80\x9cGiven these considerations,\xe2\x80\x9d it is argued, \xe2\x80\x9cdepriving Congress of the right to grant the District Congressional representation pursuant to the District Clause thwarts the very purposes on which\nthe Constitution is based.\xe2\x80\x9d Dinh & Charnes at 19.\nAs important as these constitutional purposes are, however, the fact that\nthe plain terms of the Composition Clause give the people of the states,\nand only those electors, the right to choose House members is not surprising or at odds with the central purposes of the founding charter. The\nFramers clearly looked upon states as unusually important components of\nthe constitutional structure. As much as they created the Constitution to\nforge a union, they regarded states as distinct and independent units of\ngovernment that were to play key roles in choosing the elected officers of\nthe federal government. As the Supreme Court has explained, the constitutional framework governing representation was carefully designed to\nprotect the integrity of the states in our federal system. See, e.g., Garcia v.\nSan Antonio Metro. Transit Auth., 469 U.S. 528, 550\xe2\x80\x9351 (1985) (\xe2\x80\x9cApart\nfrom the limitation on federal authority inherent in the delegated nature of\nCongress\xe2\x80\x99 Article I powers, the principal means chosen by the Framers to\nensure the role of the States in the federal system lies in the structure of\nthe Federal Government itself. It is no novelty to observe that the composition of the Federal Government was designed in large part to protect the\nStates from overreaching by Congress.\xe2\x80\x9d). Indeed, the Constitution ensures\nthat all states are on an equal footing out of respect for their independent\nstatus. See Coyle v. Smith, 221 U.S. 559, 573 (1911) (\xe2\x80\x9c[W]hen a new state\nis admitted into the Union, it is so admitted with all of the powers of\n168\n\n\x0cViews on Legislation Making the District of Columbia a Congressional District\n\nsovereignty and jurisdiction which pertain to the original states, and []\nsuch powers may not be constitutionally diminished, impaired, or shorn\naway by any conditions, compacts, or stipulations embraced in the act\nunder which the new state came into the Union, which would not be valid\nand effectual if the subject of congressional legislation after admission.\xe2\x80\x9d);\ncf. U.S. Const. art. IV, \xc2\xa7 3, cl. 1 (protecting against the possibility that the\nfederal government might merge two states into one by providing that a\nnew state may not \xe2\x80\x9cbe formed by the junction of two or more states . . .\nwithout the consent of the legislatures of the states concerned as well as\nof the Congress\xe2\x80\x9d). In sum, we read the word \xe2\x80\x9cstate\xe2\x80\x9d in the Composition\nClause as denominating a unique and significant status that is exclusive of\nother constitutionally recognized political jurisdictions, such as the District, and that reading is entirely consistent with the constitutional structure. See Adams, 90 F. Supp. 2d at 49 (incongruity of giving Congress\nitself the authority to fill its own vacancies militates against theory that\nthe District may be deemed a \xe2\x80\x9cstate\xe2\x80\x9d for purposes of constitutional provisions governing representation).\nIndeed, every Clause in the original Constitution addressing the qualifications of the electors for national office\xe2\x80\x94whether members of the\nHouse, Senators, or the President\xe2\x80\x94uses language that is similar to that in\nthe Composition Clause. See U.S. Const. art. I, \xc2\xa7 3, cl. 1 (\xe2\x80\x9cThe Senate of\nthe United States shall be composed of two Senators from each State,\nchosen by the Legislature thereof \xe2\x80\x9d); id. art. II, \xc2\xa7 1 (\xe2\x80\x9cEach State shall\nappoint, in such Manner as the Legislature thereof may direct, a Number\nof Electors, equal to the whole Number of Senators and Representatives to\nwhich the State may be entitled in the Congress\xe2\x80\x9d for purposes of electing\nthe President). Here, too, the Twenty-Third Amendment is confirmatory.\nIn providing that the District may play a role in the selection of the President, and thereby amending the rule established in Article II, Section 1\nthat presidential electors are appointed by \xe2\x80\x9cEach State\xe2\x80\x9d and meet in \xe2\x80\x9ctheir\nrespective States,\xe2\x80\x9d the Amendment specifically acknowledges that its\nprovision for electors from the District is an exception to the constitutional rule that the states alone (and the people of those states) may be involved in determining the composition of the federal government. That\nstates and states alone (and their people) are mentioned in the original\ncomposition provisions of the Constitution suggests a degree of intentionality on the part of the drafters that is hard to square with the conclusion\n169\n\n\x0c33 Op. O.L.C. 156 (2009)\n\nthat the people of a non-state, such as the District or federal territories,\nmay nonetheless exercise the power to choose members of the House.\nSimply put, the Constitution, in providing for the selection of the political\nbranches of the national government, assigned a critical role to the independent states, which stand at arm\xe2\x80\x99s length from federal power in a way\nthat no other constitutionally recognized political jurisdictions do.\nIn this regard, it is worth noting that the Constitution itself identifies a\nrange of political entities\xe2\x80\x94from tribes to enclaves to territories. Yet it is\nstates and states alone that are referred to in the original provisions prescribing the selection of Senators, the President, and the members of the\nHouse. If the Composition Clause were not read in the exclusive manner\nwe contend it must be, it would seem hard to argue that Congress could\nnot pursuant to its similarly broad authority under the Territories Clause,\nU.S. Const. art. IV, \xc2\xa7 3, cl. 2, provide all territories with representation in\nCongress. See Jonathan Turley, Too Clever by Half: The Unconstitutionality of Partial Representation of the District of Columbia in Congress, 76\nGeo. Wash. L. Rev. 305, 362\xe2\x80\x9364 (2008) (explaining why logic of providing congressional representation to the District also applies to the territories). It has been argued that the District is unique, so that even if Congress may by statute give the District voting representation in the House,\nthat legislative authority would not necessarily extend to providing the\nterritories and other non-state entities with such representation. See, e.g.,\nDinh & Charnes at 21 n.103. But once one opens the word \xe2\x80\x9cstate\xe2\x80\x9d up for\ninterpretation to include the District, it is not at all clear what limiting\nprinciple could be identified, as a matter of text or history, that would\npreclude other non-state entities from fitting within the Composition\nClause. At the limit, then, Congress would be able to overwhelm the\nrepresentatives of the \xe2\x80\x9cpeople of the several states\xe2\x80\x9d with those representing political jurisdictions lacking the attributes of statehood.\nTo this point, our focus has been on arguments concerning the text of\nthe Composition Clause and its relationship to the broader constitutional\nstructure. The evidence we have reviewed from founding-era history,\nhowever, also supports our conclusion that Congress may not give the\nDistrict voting representation in the House without making the District a\nstate. See generally Adams, 90 F. Supp. 2d at 50\xe2\x80\x9353. The District was\ncreated to serve the distinct purpose of protecting the national government\nand its institutions. It was a direct reaction to the fact that the Continental\n170\n\n\x0cViews on Legislation Making the District of Columbia a Congressional District\n\nCongress was effectively run out of Philadelphia by an angry mob and\nreceived little assistance from Pennsylvania. To ensure that the federal\ngovernment would not be at the mercy of a state government\xe2\x80\x99s willingness\nto protect it in the future, it was determined that a special non-state federal district be established. See id. at 50 n.25. That particular purpose\xe2\x80\x94\nmaintaining the nation\xe2\x80\x99s capital as a non-state entity\xe2\x80\x94obviously does not\nrequire that the District be denied voting representation in Congress. See,\ne.g., Raven-Hansen, Congressional Representation for the District of\nColumbia, 12 Harv. J. on Legis. at 184. But Founding-era statements\naddressing the voting rights of residents of such a district\xe2\x80\x94including\nstatements from prospective district residents themselves\xe2\x80\x94clearly reveal\nan understanding that citizens of the District would have no right to vote\nin national elections, as they were not residents of a state. See, e.g., 10\nAnnals 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\nmembers of [Congress],\xe2\x80\x9d \xe2\x80\x9cthough they might not be represented in the\nnational body, their voice would be heard\xe2\x80\x9d; \xe2\x80\x9c[b]ut if it should be necessary [that they be represented], the Constitution might be so altered as to\ngive them a delegate to the General Legislature when their numbers\nshould become sufficient\xe2\x80\x9d); id. at 992 (remarks of Rep. Bird) (assigning\n\xe2\x80\x9cblame\xe2\x80\x9d for disenfranchisement of District residents to \xe2\x80\x9cthe men who\nframed the Constitutional provision, who peculiarly set apart this as a\nDistrict under the national safeguard and Government\xe2\x80\x9d); 5 The Papers of\nAlexander Hamilton 189\xe2\x80\x9390 (Harold C. Syrett ed., 1962) (reprinting text\nof subsequently rejected amendment proposed by Alexander Hamilton\nduring the New York ratifying convention: \xe2\x80\x9cThat When the Number of\nPersons in the District of Territory to be laid out for the Seat of the Government of the United States, shall according to the Rule for the Apportionment of Representatives and Direct Taxes Amount to [left blank] such\nDistrict shall cease to be parcel of the State granting the Same, and Provision shall be made by Congress for their having a District Representation\nin that Body.\xe2\x80\x9d) (emphasis added); see also 12 Annals of Cong. 487 (1803)\n(remarks of Rep. Smilie) (\xe2\x80\x9cUnder the exercise of exclusive jurisdiction\nthe citizens are deprived of all political rights, nor can we confer them.\xe2\x80\x9d);\n5 The Documentary History of the Ratification of the Constitution 621\n(Merrill Jensen, John P. Kaminski & Gaspare J. Saladino eds., 1976)\n(statement of Samuel Osgood, delegate to the Massachusetts ratifying\n171\n\n\x0c33 Op. O.L.C. 156 (2009)\n\nconvention, that he could accept the Seat of Government provision only if\nit were amended to provide that the District be \xe2\x80\x9crepresented in the lower\nHouse,\xe2\x80\x9d though no such amendment was ultimately included in the\namendments recommended by the Massachusetts convention); see generally Adams, 90 F. Supp. 2d at 51\xe2\x80\x9353 (recounting this history).\nSome scholars and commentators have argued that certain pieces of evidence suggest a contrary understanding. In particular, some have pointed\nto the fact that, in the interim period between Congress\xe2\x80\x99s acceptance of\nthe District and Congress\xe2\x80\x99s assumption of jurisdiction over the District,\nthose living in the physical territory that would become the District were\npermitted to vote in Virginia or Maryland. See, e.g., Arjun Garg, Note, A\nCapital Idea: Legislation to Give the District of Columbia a Vote in the\nHouse of Representatives, 41 Colum. J.L. & Soc. Probs. 1, 21 (2007). But\nat the time, such persons were still citizens of Virginia or Maryland, and\nthus this history does not show that the people of the District possessed\nvoting rights that they have since lost. Instead, this history shows only\nthat these persons\xe2\x80\x99 prospective status as District residents did not deprive\nthem of the constitutionally conferred right as the \xe2\x80\x9cpeople\xe2\x80\x9d of one of the\nseveral states to choose members of the House under the Composition\nClause. See Raven-Hansen, Congressional Representation for the District\nof Columbia, 12 Harv. J. on Legis. at 174 (\xe2\x80\x9cDistrict residents did not lose\nstate citizenship until December, 1800, and the prior decade of voting and\nrepresentation provided no precedent for the representation of District\ncitizens.\xe2\x80\x9d). 4\nNor is there any evidence that this original understanding was called\ninto question over time. Although the movement to provide District citi-\n\n4 Professor Raven-Hansen argues that it was an act of Congress, and not the constitutional provisions limiting voting representation to \xe2\x80\x9cstates,\xe2\x80\x9d that disenfranchised citizens\nof the District. See Raven-Hansen, Congressional Representation for the District of\nColumbia, 12 Harv. J. on Legis. at 174\xe2\x80\x9379. The evidence adduced for this proposition\ndoes not overcome the contrary indications in the constitutional text and history that a\nnon-state entity may not enjoy voting representation in Congress. Indeed, the court in\nAdams considered this very evidence and concluded that \xe2\x80\x9cit is the Constitution itself that\nis the source of [the District\xe2\x80\x99s] voting disability.\xe2\x80\x9d 90 F. Supp. 2d at 62 (emphasis in\noriginal); see also id. (\xe2\x80\x9cThus, it was not the Organic Act or any other cession-related\nlegislation that excluded District residents from the franchise, something we agree could\nnot have been done by legislation alone.\xe2\x80\x9d).\n\n172\n\n\x0cViews on Legislation Making the District of Columbia a Congressional District\n\nzens with some representation in the national legislature has a long historical pedigree, for most of the nation\xe2\x80\x99s history proponents of such a view\n\xe2\x80\x9chave assumed that District representation requires a constitutional\namendment.\xe2\x80\x9d Id. at 167. Thus, until very recently, no legislation comparable to that at issue here was even proposed, much less acted upon.\nInstead, members of Congress have consistently sought to give the District the right to vote in federal elections by way of at least three other\ndevices: retrocession; statehood; and constitutional amendment. The\nhistory associated with such efforts, including the history underlying the\nadoption of the 23rd Amendment, demonstrates that Congress itself\nunderstood that the District is not a state and therefore may not enjoy\nvoting representation in Congress. See, e.g., Providing Representation of\nthe District of Columbia in Congress, H.R. Rep. No. 90-819, at 4 (1967)\n(\xe2\x80\x9cIf the citizens of the District are to have voting representation in the\nCongress, a constitutional amendment is essential; statutory action alone\nwould not suffice. This is the case because provisions for elections of\nSenators and Representatives in the Constitution are stated in terms of the\nStates, and the District of Columbia is not a State.\xe2\x80\x9d); H.R. Rep. No. 861698 (noting that, absent a constitutional amendment, \xe2\x80\x9cvoting rights are\ndenied District citizens because the Constitution provides machinery only\nthrough the States for the selection of the President and Vice President,\xe2\x80\x9d\nand observing that \xe2\x80\x9capart from the Thirteen Original States, the only areas\nwhich have achieved national voting rights have done so by becoming\nStates\xe2\x80\x9d). 5\n\n5 The Uniformed and Overseas Citizens Absentee Voting Act (\xe2\x80\x9cOCAVA\xe2\x80\x9d) does not\nprovide a legislative precedent for the proposition that Congress may give voting representation to a non-state entity such as the District. As supporters of the pending legislation have observed, see, e.g., Dinh & Charnes at 17\xe2\x80\x9318, one provision of the Act purports\nto give a U.S. citizen residing abroad the right to vote by absentee ballot in federal\nelections if that citizen once was domiciled in a state and, but for the fact of overseas\nresidence, is otherwise qualified to vote in that state\xe2\x80\x99s elections. See 42 U.S.C. \xc2\xa7 1973ff1(a)(1) (\xe2\x80\x9cEach state shall . . . permit absent uniformed services voters and overseas voters\nto use absentee registration procedures and to vote by absentee ballot in general, special,\nprimary, and runoff elections for Federal office.\xe2\x80\x9d); id. \xc2\xa7 1973ff-6(5)(C) (defining \xe2\x80\x9coverseas voter\xe2\x80\x9d to include, among others, \xe2\x80\x9ca person who resides outside the United States and\n(but for such residence) would be qualified to vote in the last place in which the person\nwas domiciled before leaving the United States\xe2\x80\x9d). Assuming this particular aspect of the\nAct is constitutional\xe2\x80\x94compare Romeu v. Cohen, 265 F.3d 118, 130\xe2\x80\x9331 n.9 (2d Cir. 2001)\n\n173\n\n\x0c33 Op. O.L.C. 156 (2009)\n\nNotwithstanding clear and substantial evidence of the original understanding that the District was not a state and therefore would not enjoy\nvoting representation in Congress, some have argued that the Framers\ninadvertently neglected to provide for voting representation for the District. Because the absence of such representation did not and does not\nserve any valid purpose, they argue, Congress should for practical reasons\nbe deemed to have the authority to correct this omission by statute. See,\ne.g., Raven-Hansen, Congressional Representation for the District of\nColumbia, 12 Harv. J. on Legis. at 191 (\xe2\x80\x9c[D]enial of congressional representation to District residents was neither necessary to effect the constitutional purpose nor desired by those involved. Rather the problem was not\nclearly perceived until the damage was done.\xe2\x80\x9d); see also Dinh & Charnes\nat 7 & n.22; Adams, 90 F. Supp. at 87 (Oberdorfer, J., dissenting) (\xe2\x80\x9cAs the\nSupreme Court has explained, \xe2\x80\x98The \xe2\x80\x9cexclusion\xe2\x80\x9d is often the result of\ninadvertence or accident, and the [expressio unius est exclusio alterius]\nmaxim ought not to be applied, when its application, having regard to the\nsubject-matter to which it is to be applied, leads to inconsistency or injustice.\xe2\x80\x99\xe2\x80\x9d) (citation and quotation marks omitted).\nThis argument is unpersuasive. First, the constitutional text limiting\nrepresentation in Congress to states \xe2\x80\x9cis not a case where \xe2\x80\x98[t]he \xe2\x80\x9cexclu(Leval, J.), with id. at 134 n.7 (Walker, C.J., concurring); see also Memorandum for John\nR. Bolton, Assistant Attorney General, Office of Legislative Affairs, from Douglas W.\nKmiec, Assistant Attorney General, Office of Legal Counsel, Re: H.R.4393, 99th Cong.,\nThe Uniformed and Overseas Citizens Absentee Voting Act (Aug. 22, 1986) (\xe2\x80\x9cThe bill\nraises on its face serious questions about the proper relations between the Federal government and the States in the delicate area of voting rights.\xe2\x80\x9d); Dinh & Charnes at 18 n.89\n(\xe2\x80\x9cSince the [Act] was enacted in 1986, the constitutional authority of Congress to extend\nthe vote to United States citizens living abroad has never been challenged.\xe2\x80\x9d)\xe2\x80\x94such a\nprecedent would at most suggest that Congress might have the authority to give some\ncitizens of the District (those who used to live in one of the states and would be qualified\nto vote in that state\xe2\x80\x99s elections but for the fact of their residence in the District) the right\nto vote in that state\xe2\x80\x99s elections for federal officers. Cf. Romeu, 265 F.3d at 129. Because\nthe OCAVA does not treat U.S. citizens living abroad as part of a non-state entity entitled\nto its own representation in Congress, the Act cannot be cited as evidence that Congress\nmay create freestanding congressional districts that do not belong to any state but nevertheless enjoy representation in the national legislature. Cf. Att\xe2\x80\x99y Gen. of Guam v. United\nStates, 738 F.2d 1017, 1020 (9th Cir. 1984) (\xe2\x80\x9cThe OCAVA does not evidence Congress\xe2\x80\x99s\nability or intent to permit all voters in Guam elections to vote in presidential elections.\xe2\x80\x9d)\n(emphasis added).\n\n174\n\n\x0cViews on Legislation Making the District of Columbia a Congressional District\n\nsion\xe2\x80\x9d is . . . the result of inadvertence or accident.\xe2\x80\x99\xe2\x80\x9d Adams, 90 F. Supp.\n2d at 56 (citation and quotation marks omitted). To the contrary, \xe2\x80\x9c[t]he\nConstitution\xe2\x80\x99s repeated references to states . . . are reflections of the Great\nCompromise forged to ensure the Constitution\xe2\x80\x99s ratification. There is\nsimply no evidence that the Framers intended that not only citizens of\nstates, but unspecified others as well, would share in the congressional\nfranchise.\xe2\x80\x9d Id.; see also D.C. Voting Rights Act, 31 Op. O.L.C. at 150\n(provisions governing the composition of Congress \xe2\x80\x9cwere the very linchpin of the Constitution, because it was only by reconciling the conflicting\nwishes of the large and small States as to representation in Congress that\nthe Great Compromise that enabled the Constitution\xe2\x80\x99s ratification was\nmade possible\xe2\x80\x9d).\nSecond, even if were true that the Framers inadvertently neglected to\ngive the District voting representation, it does not follow that they would\nhave intended to give Congress the power by simple majority vote to\nmanipulate the membership of the national legislature. We have not found\nany evidence suggesting that the Framers thought Congress would or\nshould have such authority, and the centrality of the Great Compromise in\nthe drafting of the Constitution cuts the other way. See D.C. Voting Rights\nAct, 31 Op. O.L.C. at 152 (\xe2\x80\x9cGiven the great care with which the Framers\nprovided for State-based congressional representation in the Composition\nClause and related provisions, it is implausible to suggest that they would\nhave simultaneously provided for the subversion of those very provisions\nby giving Congress carte blanche to create an indefinite number of additional seats [representing the territories and the federal enclaves] under\nthe [District] Clause.\xe2\x80\x9d).\nFinally, proponents of the pending legislation argue in support of its\nconstitutionality by appealing to judicial precedent. Their primary contention is that affirmative precedent for their position exists in cases considering the District Clause, and we discuss this line of argument at considerable length in the next section. The proponents are less forceful,\nhowever, in contending that there is affirmative support for their position\nin precedents interpreting the Composition Clause itself. Here, as we\nexplain, the available precedent is entirely consistent with the conclusion\nthat the Clause excludes non-state entities such as the District and provides no meaningful support for the contrary position.\n175\n\n\x0c33 Op. O.L.C. 156 (2009)\n\nMost recently, in a thorough and thoughtful opinion, a three-judge panel of the United States District Court for the District of Columbia (with\nJudges Garland and Kollar-Kotelly in the majority and Judge Oberdorfer\ndissenting) concluded that \xe2\x80\x9cthe clauses of Article I that provide for congressional voting [] are not applicable to residents of the District of Columbia.\xe2\x80\x9d Adams, 90 F. Supp. 2d at 65. The Supreme Court summarily\naffirmed the ruling in Adams, turning aside the District\xe2\x80\x99s argument that\nArticle I, Section 2 should be construed, in accord with broader democratic principles and purposes of the Constitution, to allow District citizens to\nvote for a congressional representative. See Alexander v. Mineta, 531 U.S.\n940 (2000); see also Hicks v. Miranda, 422 U.S. 332, 344\xe2\x80\x9345 (1975)\n(summary affirmance is a precedential ruling on the merits). 6 Because\nAdams addressed the question whether the Constitution requires giving\nthe District representation, the court\xe2\x80\x99s decision in that case does not\ndirectly answer whether Congress might have the authority to confer such\nelectoral authority by legislation. See D.C. Voting Rights Act, 31 Op.\nO.L.C. at 149 (emphasizing that \xe2\x80\x9cthe courts have not directly reviewed the\nconstitutionality of a statute purporting to grant the District representation\nbecause . . . Congress has not previously considered such legislation\nconstitutionally permissible\xe2\x80\x9d). Proponents emphasize that point by way of\nsuggesting that Adams is not of great significance as to whether Congress\n6 In its appeal to the Supreme Court, the District of Columbia and 54 residents of the\nDistrict specifically contended (as the Adams plaintiffs in the companion case did not)\nthat citizens of the District have a constitutional right \xe2\x80\x9cto be counted as \xe2\x80\x98People of the\nseveral States\xe2\x80\x99 for purposes of congressional representation\xe2\x80\x9d under Article I, Section 2.\nJurisdictional Statement at 10, Alexander v. Daley, 531 U.S. 940 (No. 99-2062). The\nSolicitor General, on behalf of the federal Appellees, devoted virtually all of his Motion\nto Affirm to the argument that citizens of the District are not among the \xe2\x80\x9cPeople of the\nseveral States\xe2\x80\x9d under Article I, Section 2; and, in responding to the District\xe2\x80\x99s primary\nargument \xe2\x80\x9cthat the Court should \xe2\x80\x98reject[] the most literal reading of a constitutional\nprovision in favor of one that is more harmonious with the principles enunciated by the\ndocument as a whole and in keeping with its underlying purposes,\xe2\x80\x99\xe2\x80\x9d the Solicitor General\nargued that \xe2\x80\x9c[d]eparting from the \xe2\x80\x98most literal reading\xe2\x80\x99 of the constitutional text in this\ncase would . . . lead to insurmountable textual difficulties and conflict with both historical\nevidence and judicial precedent.\xe2\x80\x9d Motion to Affirm at 10\xe2\x80\x9311, Alexander v. Mineta, 531\nU.S. 940 (No. 99-2062). The Supreme Court summarily affirmed the decision of the\nthree-judge court in Adams, a decision that included the holding that the citizens of the\nDistrict are not among the \xe2\x80\x9cPeople of the several States\xe2\x80\x9d for purposes of Article I, Section 2.\n\n176\n\n\x0cViews on Legislation Making the District of Columbia a Congressional District\n\nmay provide voting representation to the District. In fact, however, the\nAdams court conducted an exhaustive analysis of the Composition Clause\nitself and concluded that its references to \xe2\x80\x9cstates\xe2\x80\x9d exclude the District\nfrom its scope. Adams, 90 F. Supp. 2d at 62 (rejecting argument that\ncongressional legislation disenfranchised citizens of the District, concluding that \xe2\x80\x9cit is the Constitution itself that is the source of plaintiffs\xe2\x80\x99 voting\ndisability,\xe2\x80\x9d and noting that \xe2\x80\x9cit was not the Organic Act or any other cession-related legislation that excluded District residents from the franchise,\nsomething we agree could not have been done by legislation alone\xe2\x80\x9d)\n(emphasis in original). Nor did the court suggest that the issue was close.\nSee id. at 56 (\xe2\x80\x9c[T]he overlapping and interconnected use of the term\n\xe2\x80\x98state\xe2\x80\x99 in the relevant provisions of Article I, the historical evidence of\ncontemporary understandings, and the opinions of our judicial forebears\nall reinforce how deeply Congressional representation is tied to the structure of statehood. The Constitution\xe2\x80\x99s repeated references to states cannot\nbe understood . . . as merely the most practical method then available for\nholding elections. . . . There is simply no evidence that the Framers intended that not only citizens of states, but unspecified others as well,\nwould share in the Congressional franchise.\xe2\x80\x9d).\nMoreover, there are additional dicta in other cases indicating that Congress cannot either expand the constitutional definition of \xe2\x80\x9cstate\xe2\x80\x9d for\npurposes of the Composition Clause or invoke one of its enumerated\nauthorities to avoid the strictures of that Clause by giving the District\nsome of the voting representation that the Constitution affords only to the\nstates. See, e.g., Michel v. Anderson, 623 F.3d 623, 630 (D.C. Cir. 1994)\n(holding that House rule giving delegates from non-state entities authority\nto cast certain non-decisive votes did not make those delegates \xe2\x80\x9cmembers\xe2\x80\x9d of the House for purposes of the Composition Clause, but stating in\ndictum that the Clause \xe2\x80\x9cprecludes the House from bestowing the characteristics of membership on someone other than those \xe2\x80\x98chosen every second Year by the People of the several States\xe2\x80\x99\xe2\x80\x9d); Adams, 90 F. Supp. 2d at\n50 (\xe2\x80\x9c[T]he Constitution does not contemplate that the District may serve\nas a state for purposes of the apportionment of congressional representatives.\xe2\x80\x9d); Michel v. Anderson, 817 F. Supp. 126, 140 (D.D.C. 1993) (\xe2\x80\x9cOne\nprinciple is basic and beyond dispute. Since the Delegates do not represent States but only various territorial entities, they may not, consistently\nwith the Constitution, exercise legislative power (in tandem with the\n177\n\n\x0c33 Op. O.L.C. 156 (2009)\n\nUnited States Senate), for such power is constitutionally limited to \xe2\x80\x98Members chosen . . . by the People of the several States.\xe2\x80\x99\xe2\x80\x9d) (emphasis added);\nsee also Banner v. United States, 428 F.3d 303, 309 (D.C. Cir. 2005)\n(stating that the \xe2\x80\x9cConstitution denies District residents voting representation in Congress\xe2\x80\x9d) (emphasis added).\nAs noted above, the Supreme Court in Adams affirmed the District\nCourt\xe2\x80\x99s holding that the District of Columbia is not a \xe2\x80\x9cstate\xe2\x80\x9d within the\nmeaning of the Composition Clause. The Court has not had occasion to\naddress whether Congress may by statute give the District voting representation in the House even though the District is not a \xe2\x80\x9cstate\xe2\x80\x9d for purposes of the Composition Clause. But insofar as it has discussed the issue in\ndicta, it has without exception expressed the view that the District may\nnot choose elected federal officials, other than where expressly provided,\nbecause it is not a state. See Loughborough, 18 U.S. at 324 (stating that\nthe District \xe2\x80\x9cvoluntarily relinquished the right of representation\xe2\x80\x9d); Hepburn & Dundas v. Ellzey, 6 U.S. (2 Cranch) 445, 452\xe2\x80\x9353 (1805) (suggesting in dictum that the District is not a state for purposes of the Composition Clause).\nWe have not found any judicial authority suggesting, even in dictum,\nthat Congress might by statute treat the District as a state for purposes of\nfederal enfranchisement and representation in the House. The absence of\nany such suggestion is revealing, particularly in those cases where courts\nhave acknowledged that the lack of voting representation for the District\nis at odds with the nation\xe2\x80\x99s democratic principles. See, e.g., Loughborough, 18 U.S. at 324 (conceding that \xe2\x80\x9cin theory it might be more congenial to the spirit of our institutions to admit a representative from the district,\xe2\x80\x9d but omitting any suggestion that Congress might provide such\nrepresentation by simple legislation); Adams, 90 F. Supp. 2d at 66 (\xe2\x80\x9cWe\ndo not disagree that defendants have failed to offer a compelling justification for denying District residents the right to vote in Congress.\xe2\x80\x9d).\nII.\nProponents of the legislation advance two main arguments against this\nformidable body of authority for the proposition that the Composition\nClause precludes giving the District voting representation in the House.\nEach rests on a contention about Congress\xe2\x80\x99s authority under the District\n178\n\n\x0cViews on Legislation Making the District of Columbia a Congressional District\n\nClause, U.S. Const. art. I, \xc2\xa7 8, cl. 17, which gives Congress the power to\n\xe2\x80\x9cexercise exclusive legislation in all cases whatsoever\xe2\x80\x9d over the District.\nWe address each of these arguments in turn.\nThe first argument would read the District Clause to, in effect, trump\nthe seemingly plain command of the Composition Clause. Proponents of\nthis argument begin with the premise that the District Clause \xe2\x80\x9cgrants\nCongress plenary and exclusive authority to legislate in all matters concerning the District.\xe2\x80\x9d Dinh & Chames at 4. \xe2\x80\x9cThis broad legislative authority,\xe2\x80\x9d they contend, \xe2\x80\x9cextends to the granting of Congressional voting rights\nfor District residents,\xe2\x80\x9d regardless whether the District is a state within the\nmeaning of the Composition Clause. Id.\nPursuant to the District Clause, Congress has broad authority to \xe2\x80\x9cexercise all the police and regulatory powers which a state legislature or\nmunicipal government would have in legislating for state or local purposes.\xe2\x80\x9d Palmore v. United States, 411 U.S. 389, 397 (1973). Congress\xe2\x80\x99s\npower under the Clause has been described as \xe2\x80\x9cplenary.\xe2\x80\x9d Id. But what\nthis means is simply that Congress has \xe2\x80\x9call legislative powers that the\nlegislature of a state might exercise within the state.\xe2\x80\x9d Capital Traction\nCo. v. Hof, 174 U.S. 1, 5 (1899). 7 As courts have repeatedly stressed,\nCongress\xe2\x80\x99s broad power to provide for the governance of the District does\nnot give it the authority to \xe2\x80\x9ccontravene any provision of the Constitution.\xe2\x80\x9d\nPalmore, 411 U.S. at 397 (quoting Hof , 174 U.S. at 5); see also Neild v.\nDist. of Columbia, 110 F.2d 246, 249 (D.C. Cir. 1984) (\xe2\x80\x9cSubject only to\nthose prohibitions of the Constitution which act directly or by implication\nupon the federal government, Congress possesses full and unlimited\njurisdiction to provide for the general welfare of citizens within the District of Columbia by any and every act of legislation which it may deem\nconducive to that end.\xe2\x80\x9d) (emphasis added).\nTherefore, for example, the power of Congress in the District of Columbia is limited by the individual rights guarantees of the Federal Constitution: Congress\xe2\x80\x99s District Clause power does not give it the authority\nto pass a bill of attainder or an ex post facto law, to dispense with trial by\njury, to establish a religion, or to abridge the freedom of speech. See\n7 The word \xe2\x80\x9cexclusive\xe2\x80\x9d in the clause is to specify that the legislative power of Congress over the District is not concurrent with that of the ceding states. See Dist. of Columbia v. John R. Thompson Co., 346 U.S. 100, 109 (1953).\n\n179\n\n\x0c33 Op. O.L.C. 156 (2009)\n\nKeller v. Potomac Elec. Co., 261 U.S. 428, 443 (1923) (\xe2\x80\x9cSubject to the\nguaranties of personal liberty in the amendments and in the original\nConstitution, Congress has as much power [under the District Clause] to\nvest courts of the District with a variety of jurisdiction and powers as a\nstate legislature has in conferring jurisdiction on its courts.\xe2\x80\x9d). Nor can\nCongress invoke its power under the District Clause to alter the structural\nprovisions of the Constitution, as Keller itself demonstrates. See 261 U.S.\nat 444 (holding that the District Clause does not give Congress the authority to vest \xe2\x80\x9clegislative or administrative jurisdiction\xe2\x80\x9d pertaining to the\ngovernance of the District in Article III courts). Likewise, Congress may\nnot use its power to govern the District, no matter how \xe2\x80\x9cplenary\xe2\x80\x9d that\nauthority may be, to alter the constitutional prerequisites for representation in the national legislature itself\xe2\x80\x94prerequisites that include the command that members of the House are to be chosen \xe2\x80\x9cby the people of the\nseveral states.\xe2\x80\x9d\nProponents of the pending legislation argue, in the alternative, and\nmore persuasively, that even if the District Clause does not give Congress\nthe power to act in direct contradiction of an express constitutional limitation or requirement, such as the one we believe is established by the\nComposition Clause, the District Clause does give Congress the more\nlimited power to enact \xe2\x80\x9clegislation treating the District as a state, even for\nconstitutional purposes.\xe2\x80\x9d Dinh & Charnes at 4. In support of this argument, proponents of the legislation note that the term \xe2\x80\x9cstate\xe2\x80\x9d may in some\ncontexts be interpreted to include the District. See Dist. of Columbia v.\nCarter, 409 U.S. 418, 420 (1973) (\xe2\x80\x9cWhether the District of Columbia\nconstitutes a \xe2\x80\x98State or Territory\xe2\x80\x99 within the meaning of any particular\nstatutory or constitutional provision depends upon the character and aim\nof the specific provision involved.\xe2\x80\x9d). Therefore, they argue, Congress\nshould at the very least be permitted to treat the District as a state for\npurposes of the Composition Clause, particularly given that doing so\nwould enfranchise citizens of the United States who would otherwise be\ndenied the right to vote for a voting member of the House.\nThe most relevant case concerning Congress\xe2\x80\x99s authority under the District Clause, and the case on which proponents of the pending legislation\nmost heavily rely, is National Mutual Insurance Co. v. Tidewater Transfer Co., 337 U.S. 582 (1949). There, a fractured court held that Congress\nmay give Article III courts jurisdiction over suits brought by citizens of\n180\n\n\x0cViews on Legislation Making the District of Columbia a Congressional District\n\nthe District of Columbia against citizens of the several states, even if\nthose suits do not involve a federal question or any of the other nondiversity-related heads of federal jurisdiction spelled out in section 2 of\nArticle III. One of the four opinions in the case, authored by Justice\nJackson and joined by two other Justices, concluded that Congress could\nuse its authority under the District Clause to authorize Article III courts\nto hear such cases, even though, in Justice Jackson\xe2\x80\x99s view, such jurisdiction was not part of the federal judicial power as defined in Article III.\nSee id. at 588, 600. Two other Justices concurred in the judgment but\nspecifically rejected Jackson\xe2\x80\x99s broad view of Congress\xe2\x80\x99s power under the\nDistrict Clause; those two justices would have upheld the statute on the\nground that by operation of the Constitution itself the District is a state for\npurposes of the provision of Article III that extends the federal judicial\npower to controversies between citizens of different \xe2\x80\x9cstates.\xe2\x80\x9d See id. at\n604\xe2\x80\x9306, 625\xe2\x80\x9326 (Rutledge, J., concurring). Unlike Justice Jackson\xe2\x80\x99s\nplurality opinion, Justice Rutledge\xe2\x80\x99s opinion argued that the statute at\nissue was constitutional by rejecting the Court\xe2\x80\x99s longstanding view regarding the meaning of the term \xe2\x80\x9cstate\xe2\x80\x9d for purposes of the diversity\njurisdiction provision of Article III. See Hepburn & Dundas v. Ellzey,\n6 U.S. (2 Cranch) 445 (1805) (holding that statute giving federal courts\njurisdiction over disputes between citizens from different states did not\ngive those courts jurisdiction over a case between a citizen of the District\nand a citizen of one of the several states, based on conclusion in dictum\nthat the meaning of the term \xe2\x80\x9cstate\xe2\x80\x9d as used in Article III and other constitutional provisions did not include the District).\nAt first glance, the Jackson opinion might seem to provide a precedent\nfor holding that Congress may use its power under the District Clause to\ngive citizens of the District representation in Congress. His opinion was\nthe only one in the majority to attract as many as three votes (including\nhis own). Moreover, that opinion reasoned that the statute at issue in\nTidewater Transfer effectively added an additional head of federal jurisdiction to those specifically enumerated in Article III. If Congress\xe2\x80\x99s\npower to legislate for the District may be used to expand the scope of\nfederal jurisdiction under Article III, proponents of voting representation\nfor District residents in the House have suggested, it should be reasonable\nto suppose that the same power may likewise be used to expand the basis\nof voting representation in Congress under Article I. Indeed, legislation\n181\n\n\x0c33 Op. O.L.C. 156 (2009)\n\ngiving citizens of the District voting representation would seem to right a\nmuch more serious wrong, and to vindicate a much more fundamental\nprinciple, than the law at issue in Tidewater Transfer. Compare id. at 651\n(Frankfurter, 1., dissenting) (\xe2\x80\x9cConcededly, no great public interest or\nlibertarian principle is at stake in the desire of a corporation which happens to have been chartered in the District of Columbia, to pursue its\nclaim against a citizen of Maryland in the federal court in Maryland on\nthe theory that the right of this artificial citizen of the District of Columbia cannot be vindicated in the State courts of Maryland.\xe2\x80\x9d), with Wesberry\nv. Sanders, 376 U.S., 17\xe2\x80\x9318 (1964) (\xe2\x80\x9cNo right is more precious in a free\ncountry than that of having a voice in the election of those who make the\nlaws under which, as good citizens, we must live. Other rights, even the\nmost basic, are illusory if the right to vote is undermined.\xe2\x80\x9d); Yick Wo v.\nHopkins, 118 U.S. 356, 370 (1886) (\xe2\x80\x9cthe political franchise of voting . . .\nis regarded as a fundamental political right, because preservative of all\nrights\xe2\x80\x9d).\nFramed at a high level of generality, then, the analogy to the Jackson\nopinion in Tidewater Transfer seems both appealing and superficially\nplausible. On deeper analysis, however, it becomes clear that the Jackson\nopinion in Tidewater Transfer does not provide persuasive authority for\nthe constitutionality of the pending legislation.\nMost importantly, the rationale underlying Justice Jackson\xe2\x80\x99s opinion\nis not a controlling holding of the Court. Six Justices in Tidewater Transfer expressly rejected Justice Jackson\xe2\x80\x99s theory that Congress\xe2\x80\x99s power to\nlegislate under the District Clause enables it either to give content to, or\nelse to circumvent the constraints of, the term \xe2\x80\x9cstate\xe2\x80\x9d as used in a constitutional provision. 8 Given that two-thirds of the Justices in Tidewater\n8 See id. at 605 (Rutledge, J., concurring, joined by Justice Murphy) (\xe2\x80\x9cThe Constitution\nis not so self-contradictory. Nor are its limitations to be so easily evaded.\xe2\x80\x9d); id. at 607 (\xe2\x80\x9cI\nthink that the Article III courts in the several states cannot be vested, by virtue of other\nprovisions of the Constitution, with powers specifically denied them by the terms of\nArticle III.\xe2\x80\x9d); id. at 626 (\xe2\x80\x9cI am not in accord with the proposed extension of \xe2\x80\x98legislative\xe2\x80\x99\njurisdiction under Article I for the first time to the federal district courts outside the\nDistrict of Columbia organized pursuant to Article III, and the consequent impairment of\nthe latter Article\xe2\x80\x99s limitations upon judicial power . . . . That extension, in my opinion,\nwould be the most important part of today\xe2\x80\x99s decision, were it accepted by a majority of\nthe Court. It is a dangerous doctrine which would return to plague both the district courts\n\n182\n\n\x0cViews on Legislation Making the District of Columbia a Congressional District\n\nTransfer disapproved the Jackson rationale, the case cannot be said to\nhold that Jackson\xe2\x80\x99s theory is valid. See The Congressional Pay Amendment, 16 Op. O.L.C. 87, 93 n.11 (1992) (explaining that when the Supreme Court issues a splintered decision, an opinion does not constitute\nthe holding of the case unless it \xe2\x80\x9c\xe2\x80\x98embod[ies] a position implicitly approved by at least five Justices who support the judgment\xe2\x80\x99\xe2\x80\x9d) (quoting\nKing v. Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991)); cf. Seminole Tribe\nof Fla. v. Florida, 517 U.S. 44, 66 (1996) (previous decision was of\n\xe2\x80\x9cquestionable precedential value, largely because a majority of the Court\nexpressly disagreed with the rationale of the plurality\xe2\x80\x9d). It therefore is not\nsurprising that, as far as we are aware, no court has ever relied on Justice\nJackson\xe2\x80\x99s opinion as the holding of the case, or as precedential authority\nfor the proposition that Congress may, in other contexts, invoke its power\nunder the District Clause to circumvent otherwise applicable constitutional constraints. 9\nMoreover, even if Justice Jackson\xe2\x80\x99s opinion were of some precedential\neffect, two aspects of the reasoning of that opinion suggest that it would\nnot extend to support Congress\xe2\x80\x99s use of its power under the District\nClause to alter the structure of congressional representation.\nand ourselves in the future, to what extent it is impossible to say.\xe2\x80\x9d); id. (Vinson, J.,\ndissenting, joined by Justice Douglas) (\xe2\x80\x9cI agree with the views expressed by Mr. Justice\nFrankfurter and Mr. Justice Rutledge which relate to the power of Congress under Art. I\nof the Constitution to vest federal district courts with jurisdiction over suits between\ncitizens of States and the District of Columbia.\xe2\x80\x9d); id. at 652 (Frankfurter, J., dissenting,\njoined by Justice Reed) (\xe2\x80\x9cTo find a source for \xe2\x80\x98the judicial Power,\xe2\x80\x99 therefore, which may\nbe exercised by courts established under Article III of the Constitution outside that Article\nwould be to disregard the distribution of powers made by the Constitution.\xe2\x80\x9d); id. at 655\n(\xe2\x80\x9c[T]he cases to which jurisdiction may be extended under Article III to the courts\nestablished under it preclude any claim of discretionary authority to add to the cases listed\nby Article III or to change the distribution as between original and appellate jurisdiction\nmade by that Article.\xe2\x80\x9d).\n9 Shortly after Tidewater Transfer, courts characterized that case as holding only that\nthe statute at issue in that case was constitutional\xe2\x80\x94not that the statute was permissible as\nan exercise of Congress\xe2\x80\x99s authority under the District Clause. See, e.g., Siegmund v. Gen.\nCommodities Corp., 175 F.2d 952, 953 (9th Cir. 1949) (\xe2\x80\x9cThe National Mutual case\nupheld the constitutionality of the Act involved here as applied to an action between a\ncitizen of the District of Columbia and a citizen of a state.\xe2\x80\x9d); accord Detres v. Lions Bldg.\nCorp., 234 F.2d 596, 603 (7th Cir. 1956) (adopting Siegmund\xe2\x80\x99s understanding of \xe2\x80\x9cwhat\nwas actually held by the Supreme Court\xe2\x80\x9d in Tidewater Transfer).\n\n183\n\n\x0c33 Op. O.L.C. 156 (2009)\n\nFirst, Justice Jackson repeatedly stressed that Congress\xe2\x80\x99s decision to\nextend diversity jurisdiction to cases involving citizens of the District\nwould not \xe2\x80\x9csubstantially disturb the balance between the Union and its\ncomponent states.\xe2\x80\x9d Tidewater Transfer, 337 U.S. at 585. Nor, perhaps,\nwould a mere addition to the number of representatives in Congress\ncompromise that balance. But a law expanding the categories of representation in Congress to include non-state entities would implicate the \xe2\x80\x9cbalance between the Union and its component states\xe2\x80\x9d to a much greater\nextent than the extension of diversity jurisdiction to cases involving\nDistrict residents. See id. (\xe2\x80\x9cThis constitutional issue affects only the\nmechanics of administering justice in our federation. It does not involve\nan extension or a denial of any fundamental right or immunity which goes\nto make up our freedoms.\xe2\x80\x9d); see also Adams, 90 F. Supp. 2d at 56 (\xe2\x80\x9c[T]he\noverlapping and interconnected use of the term \xe2\x80\x98state\xe2\x80\x99 in the relevant\nprovisions of Article I, the historical evidence of contemporary understandings, and the opinions of our judicial forebears all reinforce how\ndeeply Congressional representation is tied to the structure of statehood.\xe2\x80\x9d); D.C. Voting Rights Act, 31 Op. O.L.C. at 150 (provisions governing the composition of Congress \xe2\x80\x9cwere the very linchpin of the Constitution, because it was only by reconciling the conflicting wishes of the large\nand small States as to representation in Congress that the Great Compromise that enabled the Constitution\xe2\x80\x99s ratification was made possible\xe2\x80\x9d).\nThus, the rationale of the Jackson opinion, by its own terms, would not\nseem to encompass the pending legislation.\nSecond, Justice Jackson relied upon on a pragmatic argument for extending diversity jurisdiction that would not apply here. In particular,\nJustice Jackson assigned great weight to the fact that Congress concededly\nenjoyed analogous authority that as a practical matter was indistinguishable from the power at issue in the case. As Justice Jackson explained, the\nparties agreed that Congress could use its Article I power to create courts,\nlocated inside and outside the District, with jurisdiction over cases between citizens of the District and citizens of the several states. The only\nquestion, then, was whether Congress had to create two distinct categories\nof courts across the country\xe2\x80\x94one consisting of Article I courts empowered to hear diversity cases involving residents of the District, and one\nconsisting of Article III courts authorized to hear all other cases. Justice\nJackson saw no good reason for forcing Congress to maintain two sepa184\n\n\x0cViews on Legislation Making the District of Columbia a Congressional District\n\nrate systems; in his view, practical reasons supported the conclusion that\nCongress had discretion to combine both functions in the same courts. See\nid. at 585, 602. The statute Congress enacted in that case, in other words,\nhad very little practical effect, in light of other statutes that Congress\nconcededly could have enacted. 10 Giving residents of the District voting\nrepresentation in Congress, however, is not analogous in this respect;\nhere, unlike in Tidewater Transfer, it is very much disputed whether\nCongress has any authority to alter by simple legislation the structure of\ncongressional representation.\nJustice Rutledge\xe2\x80\x99s two-Justice opinion also cannot be relied upon as\nauthority to support this legislation. It, too, was adopted by a minority of\nthe Court, and the theory itself was rejected by the remaining seven Justices. Moreover, Justice Rutledge\xe2\x80\x99s theory\xe2\x80\x94that the constitutional provision conferring diversity jurisdiction included the District in its reference\nto cases between citizens of different \xe2\x80\x9cstates\xe2\x80\x9d\xe2\x80\x94was clause-specific and,\nas he himself explained, would not extend to the meaning of the term\n\xe2\x80\x9cstate\xe2\x80\x9d as used in the Composition Clause. Id. at 619, 623 (Rutledge, J.,\nconcurring) (concluding that the term \xe2\x80\x9cstate,\xe2\x80\x9d as used in the Article III\nprovision providing for diversity jurisdiction, should be understood to\ninclude the District, but suggesting that the term should not be so defined\nfor purposes of constitutional provisions \xe2\x80\x9crelating to the organization and\nstructure of the political departments of the government,\xe2\x80\x9d expressly including the provisions of Article I pertaining to the composition of Congress).\n\nSee id. at 602 (\xe2\x80\x9cWe could not of course countenance any exercise of this plenary\npower [under the District Clause] either within or without the District if it were such as to\ndraw into congressional control subjects over which there has been no delegation of\npower to the Federal Government. But as we have pointed out, the power to make this\ndefendant suable by a District citizen is not claimed to be outside of federal competence.\nIf Congress has power to bring the defendant from his home all the way to a forum within\nthe District, there seems little basis for denying it power to require him to meet the\nplaintiff part way in another forum. The practical issue here is whether, if defendant is to\nbe suable at all by District citizens, he must be compelled to come to the courts of the\nDistrict of Columbia or perhaps to a special statutory court sitting outside of it, or whether\nCongress may authorize the regular federal courts to entertain the suit. We see no justification for holding that Congress in accomplishing an end admittedly within its power is\nrestricted to those means which are most cumbersome and burdensome to a defendant.\xe2\x80\x9d).\n10\n\n185\n\n\x0c33 Op. O.L.C. 156 (2009)\n\nWhile acknowledging that neither Justice Jackson\xe2\x80\x99s view of Congress\xe2\x80\x99s\npower under the District Clause nor Justice Rutledge\xe2\x80\x99s view of the meaning of state in Article III commanded the support of a majority of the\nCourt, some commentators argue that \xe2\x80\x9c[t]he significance of Tidewater\xe2\x80\x9d to\npending legislative efforts to give the District voting representation in the\nHouse \xe2\x80\x9cis that the five justices concurring in the result believed either that\nthe District was a state under the terms of the Constitution or that the\nDistrict Clause authorized Congress to enact legislation treating the District as a state.\xe2\x80\x9d Dinh & Charnes at 13; see also Hatch, No Right is More\nPrecious, 45 Harv. J. on Legis. at 301 (quoting The Authority of Congress\nto Enact Legislation to Provide the District of Columbia with Voting\nRepresentation in the House of Representatives: Hearing Before the H.\nComm. On Government Reform, 108th Cong. 13 (2004) (statement of Viet\nD. Dinh, Professor, Georgetown University Law Center, and Adam\nCharnes, Partner, Kilpatrick Stockton L.L.P.)). On this view, the Court\nmight rely on Tidewater Transfer in justifying a decision to reach the\nsimilar conclusion that the Composition Clause either implicitly includes\nthe District as one of several \xe2\x80\x9cstates\xe2\x80\x9d or at least does not necessarily bar\nCongress from exercising its authority under the District Clause to treat it\nas a state for purposes of that clause.\nThis argument fails, we believe, for a number of reasons. As we have\nexplained, both theories supporting the particular statute in Tidewater\nTransfer were rejected by a majority of the Court in that case, and thus\nneither is part of the holding of the case. The fact that at one particular\npoint in time five of the nine Justices then sitting on the Court would have\nembraced one of the two theories\xe2\x80\x94although no more than three Justices\naccepted either one\xe2\x80\x94does not mean that either theory can be viewed as\ngoverning authority in a different context. Indeed, each of the opinions\nfrom Tidewater Transfer that arguably provides support rested on a theory\nthat, by its own terns, would not cover the Composition Clause, given its\nimportant function in establishing the nation\xe2\x80\x99s political structure. In sum,\nTidewater Transfer does not provide authority in support of the constitutionality of the pending legislation. Six of the nine Justices in the case\nunambiguously rejected the theory that the District Clause might be used\nto circumvent constitutional constraints on the scope of federal judicial\npower; and the remaining three Justices, so far as one can tell from the\nreasoning set forth in their opinion, most likely would not have approved\n186\n\n\x0cViews on Legislation Making the District of Columbia a Congressional District\n\nthe substantial extension of their theory that would be needed to sustain\nthe constitutionality of the legislation at issue here. Rather, the most that\ncan be said in support of the Tidewater Transfer analogy is that Justice\nJackson\xe2\x80\x99s opinion articulates a theory that would offer a plausible basis\nfor the pending legislation if that theory, in either Tidewater Transfer or\nlater cases, had been (1) accepted as valid constitutional doctrine and (2)\nextended in a way Justice Jackson very likely would not have approved.\nAlthough commentators arguing that Congress may statutorily grant the\nDistrict voting representation in the House rely largely on Tidewater\nTransfer, they do also cite a number of other cases. They contend these\ncases support the proposition that Congress\xe2\x80\x99s power under the District\nClause allows it, by statute, to treat the District as a state for purposes of\nvarious constitutional provisions. See, e.g., Dinh and Charnes at 9\xe2\x80\x9317\n(discussing cases and concluding that \xe2\x80\x9cCongress can legislate to treat the\nDistrict as a state for purposes of Article I representation\xe2\x80\x9d even though\n\xe2\x80\x9c[t]he District is not a state for purposes of . . . Article I, section 2,\nclause 1\xe2\x80\x9d); Hatch, No Right is More Precious, 45 Harv. J. on Legis. at 300\n(citing cases for proposition that \xe2\x80\x9cCongress may extend to the District\nthrough legislation what the Constitution applies to the states\xe2\x80\x9d); Garg, A\nCapital Idea, 41 Colum. J.L. & Soc. Probs. at 20 (\xe2\x80\x9cIn various instances in\nwhich the District or its residents have asserted rights under the Constitution, courts have held that this specific constitutional grant of congressional authority over the District is so strong that it trumps the ordinary\napplication of other constitutional provisions.\xe2\x80\x9d); Lawrence M. Frankel,\nComment, National Representation for the District of Columbia: A Legislative Solution, 139 U. Pa. L. Rev. 1659, 1679\xe2\x80\x9383 (1991) (same).\nNone of the Supreme Court cases cited by those commentators, however, holds or implies that Congress\xe2\x80\x99s power to legislate for the District\ngives it the authority to define the term \xe2\x80\x9cstate\xe2\x80\x9d to include the District for\npurposes of any particular constitutional provision (let alone Article I,\nSection 2). Nor can any of those cases be cited for the proposition that\nCongress\xe2\x80\x99s power under the District Clause enables it to circumvent\notherwise applicable constitutional constraints. Some of the cases cited by\nsupporters of the pending legislation stand for the unremarkable proposition that the term \xe2\x80\x9cstate,\xe2\x80\x9d as used in certain statutes and treaties, should be\nunderstood to include the District. See, e.g., Geofroy v. Riggs, 133 U.S.\n258, 272 (1890) (holding that the District is one of \xe2\x80\x9cthe States of the\n187\n\n\x0c33 Op. O.L.C. 156 (2009)\n\nUnion\xe2\x80\x9d for purposes of a particular consular convention with France). 11\nOther of the cases on which the proponents of the legislation rely arguably imply that the term \xe2\x80\x9cstate,\xe2\x80\x9d as used in constitutional provisions other\nthan those governing the composition of the House, includes the District\nindependent of any congressional action. See, e.g., Stoutenburgh v. Hennick, 129 U.S. 141, 148\xe2\x80\x9349 (1889) (holding that Congress did not purport\nto delegate to the local government of the District the power to regulate\ninterstate commerce but arguably proceeding on the assumption that the\nDistrict is a state within the meaning of the Commerce Clause); Callan v.\nWilson, 127 U.S. 540, 548\xe2\x80\x9351 (1888) (holding that citizens of the District\nare covered by the constitutional provisions concerning the right to a jury\ntrial in criminal cases). Because, as noted above, the District is not a\n\xe2\x80\x9cstate\xe2\x80\x9d for purposes of Section 2 of Article I, these latter authorities,\nconcerning distinct constitutional provisions not \xe2\x80\x9crelating to the organization and structure of the political departments of the government,\xe2\x80\x9d Tidewater Transfer, 337 U.S. at 619, do not support the constitutionality of the\npending legislation.\nOur understanding of the scope of Congress\xe2\x80\x99s authority under the\nDistrict Clause is also wholly consistent with Loughborough v. Blake,\n18 U.S. 317 (1820). In that case, the Court held that Congress has the\nauthority to impose a direct tax on the District of Columbia. Section 2 of\nArticle I provides that \xe2\x80\x9cdirect taxes shall be apportioned among the several states which may be included within this Union, according to their\nrespective numbers.\xe2\x80\x9d Because the District is not a \xe2\x80\x9cstate,\xe2\x80\x9d it was argued\nin Loughborough that Congress lacked the power to tax citizens of the\nDistrict. The Court rejected this contention because other provisions of\nthe Constitution give Congress broad power to lay taxes and do not say or\n\n11 Some other cases on which commentators rely hold that the District is not a state\nwithin the meaning of certain statutes. Dist. of Columbia v. Carter, 409 U.S. at 419\n(\xe2\x80\x9c[W]e hold that the District of Columbia is not a \xe2\x80\x98State or Territory\xe2\x80\x99 within the meaning\nof \xc2\xa7 1983.\xe2\x80\x9d); Hepburn & Dundas, 6 U.S. at 452\xe2\x80\x9353 (holding that the District was not a\nstate within the meaning of the statute conferring diversity jurisdiction and reasoning that\nthe clause governing the composition of the House provides evidence that \xe2\x80\x9cthe members\nof the American confederacy only,\xe2\x80\x9d as distinguished from the District, \xe2\x80\x9care the states\ncontemplated in the constitution\xe2\x80\x9d). Those cases plainly do not support the proposition that\nCongress can treat the District as a state for purposes of a constitutional provision that\ndoes not, by operation of the Constitution itself, embrace the District.\n\n188\n\n\x0cViews on Legislation Making the District of Columbia a Congressional District\n\nimply that such taxes may be imposed only on the states. See U.S. Const.\nart. I, \xc2\xa7 8, cl. 1 (\xe2\x80\x9cThe Congress shall have power to lay and collect taxes[.]\xe2\x80\x9d); id. cl. 17 (Congress has power to \xe2\x80\x9cexercise exclusive legislation in\nall cases whatsoever\xe2\x80\x9d over the District). The purpose of the apportionment\nprovision of section 2 of Article I, the Court concluded, was \xe2\x80\x9cto furnish a\nstandard by which taxes are to be apportioned, not to exempt from their\noperation any part of our country.\xe2\x80\x9d Loughborough, 18 U.S. at 320. Accordingly, the Court held that \xe2\x80\x9cCongress possesses, under the constitution,\nthe power to lay and collect direct taxes within the District of Columbia,\nin proportion to the census directed to be taken by the constitution.\xe2\x80\x9d Id. at\n325. As the foregoing summary makes clear, Loughborough cannot reasonably be read to stand for the proposition that Congress can, by simple\nlegislation, bring the District within the ambit of the term \xe2\x80\x9cstate\xe2\x80\x9d for\npurposes of a constitutional provision that does not of its own force include the District. Indeed, the Court in Loughborough concluded that the\nDistrict \xe2\x80\x9chas voluntarily relinquished the right of representation,\xe2\x80\x9d id. at\n324\xe2\x80\x9325, and nothing in its discussion of that issue suggests that Congress\ncould give by statute what, in the Court\xe2\x80\x99s view, the Constitution had taken\naway.\nDefenders of the legislation also point to lower-court cases that they\nargue demonstrate Congress\xe2\x80\x99s authority to treat the District as a state for\nthe purposes of the Constitution. See Milton S. Kronheim & Co. v. Dist. of\nColumbia, 91 F.3d 193 (D.C. Cir. 1996); Clarke v. Wash. Metro. Area\nTransit Auth., 654 F. Supp. 712, 714 n.1 (D.D.C. 1985), aff\xe2\x80\x99d, 808 F.2d\n137 (D.C. Cir. 1987). Those cases do not, however, address the question\nwhether the District can be treated as a state for purposes of Article I,\nSection 2, a provision that implicates the special concerns relating to the\npolitical structure of the federal government that both Justices Jackson\nand Rutledge singled out in their Tidewater Transfer opinions. Moreover,\nthe provisions at issue in these lower-court cases, the Eleventh and Twenty-first Amendments, also differ from the Composition Clause. Not only\ndo they have different constitutional texts (e.g., \xe2\x80\x9c[t]he transportation or\nimportation into any State, Territory, or possession of the United States\nfor delivery or use therein of intoxicating liquors, in violation of the laws\nthereof, is hereby prohibited\xe2\x80\x9d), but their legal effect is very different, as\nwell. The Composition Clause is the exclusive source of the benefit it\nconfers: Unless an entity can be deemed a state, there is no plausible basis\n189\n\n\x0c33 Op. O.L.C. 156 (2009)\n\nfor it having voting representation in the House. By contrast, neither the\nEleventh Amendment nor the Twenty-First is the exclusive source of the\nbenefits they confer. Even without \xe2\x80\x9ctreating\xe2\x80\x9d the District as a state, Congress could grant the District immunity from suit, or confer on the District\nthe power to regulate the use of alcohol. For this reason, there could be no\nargument that Congress\xe2\x80\x99s action in either Kronheim or Clarke \xe2\x80\x9ccontravene[d] any provision of the Constitution.\xe2\x80\x9d Palmore, 411 U.S. at 397.\nIn sum, we conclude that Congress may not by statute give the District\nof Columbia voting representation in the House. The relevant constitutional text, original understanding, subsequent history, and judicial precedent\xe2\x80\x94including a recent summary affirmance by the Supreme Court\xe2\x80\x94all\nclearly support the proposition that the District is not a \xe2\x80\x9cstate\xe2\x80\x9d within the\nmeaning of the Composition Clause. The District Clause gives Congress\nbroad power to legislate for the District, but it does not permit Congress\nto override the prescriptions of the Composition Clause. 12\n\n12 Our analysis addresses the most fundamental problem with the pending legislation,\nwhich is that Congress may not by statute give the District voting representation in the\nHouse without making the District a state. We note that, in addition to this fundamental\nproblem, another provision of the Senate bill raises additional concerns. Section 3(c)(l) of\nS. 160 would require the President to \xe2\x80\x9ctransmit a revised version of the most recent\nstatement of apportionment . . . to take into account this Act and identifying the State of\nUtah as the State entitled to one additional Representative pursuant to this provision.\xe2\x80\x9d\nThis provision raises potential constitutional concerns of its own. As noted above, section\n2 of the Fourteenth Amendment provides that \xe2\x80\x9cRepresentatives shall be apportioned\namong the several States according to their respective numbers.\xe2\x80\x9d Although Congress may\nby law expand the total number of Representatives in the House, the constitutional\nrequirement that those representatives be allocated on the basis of population could be\nconstrued to preclude Congress from directing that additional representatives be assigned\nto a particular state. This constitutional concern could be addressed by replacing the\nlanguage quoted above with the language used in the House bill, which requires the\nPresident to submit a report \xe2\x80\x9cidentifying the State (other than the District of Columbia)\nwhich is entitled to one additional Representative pursuant to this section.\xe2\x80\x9d H.R. 157,\n\xc2\xa7 3(c)(2). The fix we have suggested for this particular provision would not, however,\naddress the broader constitutional problem with the bill.\n\n190\n\n\x0c'