Monday, April 19, 2010

Democrats pushing an unconstitutional law

As the Democrats look towards losing their large majorities in November, there seems to be no end to what they will try to push through in the meantime. The latest measure that President Obama is pressing Congress to pass is to give the District of Columbia voting rights in the House of Representatives. This would be another issue that would end up at the Supreme Court since the language of the Constitution is quite clear that it is only states that can vote for representatives in the House of Representatives.
The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.
In 2000 a federal court ruled in Adams v. Clinton that representation in the House is limited just to the states and, just like territories are not entitled to voting representatives, neither are the residents of the District of Columbia. The Supreme Court refused to overturn that lower court ruling.

It is quite clear that, if we are to give residents of the District a voting member of the House, a constitutional amendment would be necessary. That is why previously attempts to give the District a voting representative in the House have come in the form of a proposed amendment. That is why the 23rd Amendment was necessary in order to give the District of Columbia electoral votes.

This attempt would pair a new voting member for D.C. with an additional vote for Utah. That is how they got Orrin Hatch on board. Why Utah would go along with this to get a voting member when the Census and reapportionment will take place within the year and we'll find out if they are going to get a seat without being part of this dicey maneuver. One projection predicts that Utah will gain a seat anyway in the coming reapportionment. So Hatch is a dodo for going along with this constitutionally doubtful measure since Utah is going to most probably get another seat in the normal course of events.

The Senate passed the bill last year, with Hatch's support and with a provision getting rid of the District's gun laws. The House wants to get rid of that amendment. However, Hatch is now threatening to filibuster the House's version of the bill because it grants Utah an at-large representative instead of a new district. So the House has to pass the bill with the exact same language as the Senate because they don't know if the bill could get 60 votes if Hatch is opposed. All of this would be moot after reapportionment takes place. Why Hatch should go to the mattresses to gain a new representative when they'd get one in time for the 2012 elections is beyond me. But it does not speak well that he would support a law of such dubious constitutionality. All the more reason why conservatives should breathe a sigh of relief that Bush didn't follow the advice of some and nominate Hatch to the Supreme Court.

As law professor Jonathan Turley (no conservative stooge) testified before Congress and wrote on his blog, this law is clearly unconstitutional.
I continue to consider this proposal to be one of most premeditated unconstitutional acts by Congress in decades.

While some may view it as obnoxious (and indeed some at the time held the same view), the Framers most certainly did understand the implications of creating a federal enclave represented by Congress as a whole. I must respectfully but strongly disagree with the constitutional analysis offered to Congress by Professor Viet Dinh, and the Hon. Kenneth Starr. The interpretations of Messrs. Dinh and Starr are based on uncharacteristically liberal interpretations of the text of Article I, which ignore the plain meaning of the word “states” and the express intent of the Framers. Like others, including the independent Congressional Research Service, I believe that this Congress cannot legislatively amend the Constitution by re-defining a voting member of this house. Of course, the language of this legislation is strikingly similar to a 1978 constitutional amendment that failed after being ratified by only 16 states. Indeed, in both prior successful and unsuccessful amendments (as well as in arguments made in court), the Congress has conceded that the District is not a State for the purposes of voting in Congress. Now, unable to pass a constitutional amendment, sponsors hope to circumvent the process laid out in Article V by claiming the inherent authority to add a non-state voting member to the House of Representatives.

The language of the Constitution is clear and unambiguous. Absent an amendment to the Constitution, only states may vote on the floor of the United States House of Representatives.
Expect to see this law in the courts. There weren't four justices who wanted to grant cert to hear the 2000 case and overturn the lower court's decision that representation for the District could not be accomplished legislatively. We'll see if their opinions have changed since then.