Constitutionality of the D.C. House Voting Rights Act of 2009 ( 2009 )

Constitutionality of the D.C. House
Voting Rights Act of 2009
The constitutionality of the District of Columbia House Voting Rights Act of 2009 presents
a close question, but the balance tips in favor of finding the Act constitutional.
Neither the text of the Constitution nor the analysis of applicable precedent clearly
resolves the question of whether Congress may confer House voting rights on D.C.
residents by legislation.
In the absence of a clear constitutional prohibition, the Constitution does not require
denying the most basic rights in a democracy—the right to elect representation in the
legislature and therefore to self-governance—to U.S. citizens who happen to be resi-
dents of the District of Columbia.
February 26, 2009
MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT *
You have requested the view of the Department of Justice regarding the
constitutionality of H.R. 157 and S. 160, which propose legislation grant-
ing congressional representation to the District of Columbia (collectively,
the “D.C. House Voting Rights Act”). Although it presents a close consti-
tutional question, in my view, for the reasons explained below, the bal-
ance tips in favor of finding this proposed legislation constitutional.
I. Executive Summary
H.R. 157 and S.160 would give the District of Columbia one voting
member in the House of Representatives. Each bill includes a provision
stating: “Notwithstanding any other provision of law, the District of
Columbia shall be considered a Congressional district for purposes of
representation in the House of Representatives.” H.R. 157, § 2(a); S. 160,
§ 2(a). Each bill would grant the citizens of the District the ability to elect
a voting member of the House of Representatives by identifying it as a
congressional district in its own right, although neither bill purports to
grant the District statehood.
* Editor’s Note: This opinion refers to views of the Office of Legal Counsel on the
same legislation, which are available elsewhere in this volume. See Views on Legislation
Making the District of Columbia a Congressional District, 33 Op. O.L.C. 156 (2009).
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Constitutionality of the D.C. House Voting Rights Act of 2009
There are a number of strong arguments against the constitutionality of
such a statute, including those advanced by the Office of Legal Counsel
with respect to prior versions of the proposed legislation. See Constitu-
tionality of the D.C. Voting Rights Act of 2007, 31 Op. O.L.C. 147 (2007)
(“D.C. Voting Rights Act ”) (statement of John P. Elwood, Deputy Assis-
tant Attorney General, Office of Legal Counsel); E-mail for Velma
Taylor, Office of Legislative Affairs, from Michelle Boardman, Deputy
Assistant Attorney General, Office of Legal Counsel, Re: H.R. 5388, the
District of Columbia Fair and Equal House Voting Rights Act of 2006
(May 22, 2006). The Office of Legal Counsel has recently presented to
me its view that the current proposed legislation is similarly infirm. These
arguments rest primarily on the text of Article I, Section 2 of the Consti-
tution (the “Composition Clause”), which provides: “The House of Rep-
resentatives 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.” U.S. Const. art. I, § 2, cl. 1 (emphasis added).
At the same time, there are a number of compelling arguments in favor
of the constitutionality of the proposed legislation, including those ad-
vanced by a diverse array of well-respected constitutional scholars. See,
e.g., Viet D. Dinh & Adam H. Charnes, The Authority of Congress to
Enact Legislation to Provide the District of Columbia with Voting Repre-
sentation in the House of Representatives at 19 (Nov. 2004), https://
www.dcvote.org/sites/default/files/upload/vietdinh112004.pdf (“Dinh
& Charnes”); Common Sense Justice for the Nation’s Capital: An Exami-
nation of Proposals to Give D.C. Residents Direct Representation: Hear-
ing Before the H. Comm. on Gov’t Reform, 108th Cong. 77–84 (June 23,
2004) (Serial No. 108-218) (statement of Kenneth W. Starr); Ending
Taxation Without Representation: The Constitutionality of S. 1257: Hear-
ing Before the S. Comm. on the Judiciary, 110th Cong. 18–22 (May 23,
2007) (S. Hrg. No. 110-440; Serial No. J-110-38) (statement of Patricia
Wald) (“Wald Statement”); see also Peter Raven-Hansen, Congressional
Representation for the District of Columbia: A Constitutional Analysis, 12
Harv. J. on Legis. 167, 191 (1975). These scholars rely upon Congress’s
plenary power to legislate for the District of Columbia under Article I,
Section 8, Clause 17 (the “District Clause”), together with case law hold-
ing that, under the authority conferred by the District Clause, Congress
39
33 Op. O.L.C. 38 (2009) (Holder, Att’y Gen.)
may provide that the District should be treated as a state for constitutional
purposes. In addition, proponents of the legislation contend that funda-
mental principles of democracy and the importance of the right to vote—
principles that animate the Constitution and undergird our founding as a
nation—further buttress their constitutional analysis.
These competing arguments highlight the fact that the constitutionality
of the D.C. House Voting Rights Act presents a close constitutional
question. Neither the text of the Constitution nor the analysis of applica-
ble precedent clearly resolves the question of whether Congress may
confer House voting rights on D.C. residents by legislation. In addition,
should Congress enact the proposed legislation, that act would embody
the will of the people of the United States to extend the franchise to
District citizens. In that context, and in the absence of a clear constitu-
tional prohibition, I cannot conclude that the Constitution requires us to
ignore the will of the American people and to deny the most basic rights
in a democracy—the right to elect representation in the legislature and
therefore to self-governance—to U.S. citizens who happen to be residents
of our nation’s capital, the District of Columbia. 1
II. The D.C. House Voting Rights Act of 2009 Is Constitutional
A. The District Clause Empowers Congress to
Provide Congressional Representation to
Residents of the District of Columbia
The District Clause confers on Congress the power to “exercise exclu-
sive Legislation in all Cases whatsoever, over such District . . . as may . . .
become the Seat of the Government of the United States.” U.S. Const.
art. I, § 8, cl. 17. In my view, the power conferred by the District Clause
includes the authority to create a congressional district within the District
of Columbia.
1 The closeness of the constitutional question precludes confident prediction regarding
the outcome of any litigation regarding the constitutionality of the proposed legislation.
Consequently, decision-makers should be mindful of the substantial litigation risks
associated with the possibility of judicial review of a congressional decision to extend
voting rights of the District of Columbia by ordinary legislation, should the courts find an
appropriate vehicle to conduct such a review.
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Constitutionality of the D.C. House Voting Rights Act of 2009
The Supreme Court has held that Congress’s power under the District
Clause is plenary, providing Congress with “full and unlimited juris-
diction to provide for the general welfare of District citizens by any and
every act of legislation which it may deem conducive to that end.” Nat’l
Mut. Ins. Co. of D.C. v. Tidewater Transfer Co., 337 U.S. 582, 601 (1949)
(quoting Neild v. Dist. of Columbia, 100 F.2d 246, 250 (D.C. Cir. 1940)).
Moreover, when Congress exercises its power to legislate for the District,
it “acts as a legislature of national character, exercising complete legisla-
tive control as contrasted with the limited power of a state legislature, on
the one hand, and as contrasted with the limited sovereignty which Con-
gress exercises within the boundaries of the states, on the other.” Id. at
602; see also Palmore v. United States, 411 U.S. 389, 397–398 (1973);
United States v. Cohen, 733 F.2d 128, 140 (D.C. Cir. 1984) (Scalia, J.)
(noting that Congress has “extraordinary plenary power” in legislating for
the District).
The Supreme Court has upheld Congress’s authority to enact legislation
that treats the District of Columbia as a “state” for constitutional purpos-
es, even where the text of the Constitution, by referring to “states,” would
appear to preclude such legislation. In Tidewater Transfer, a three-Justice
plurality upheld Congress’s power to confer jurisdiction on federal courts
over state-law suits between citizens of the District and citizens of other
States. 337 U.S. at 603–04. The plurality did so even though the text of
Article III purported to limit such jurisdiction only to suits “between
citizens of different states.” U.S. Const. art. III, § 2, cl. 1. The plurality
acknowledged Chief Justice Marshall’s conclusion in Hepburn & Dundas
v. Ellzey, 6 U.S. (2 Cranch) 445 (1805), that “the District of Columbia is
not a state within Article III of the Constitution,” Tidewater Transfer, 337
U.S. at 588, as well as the concomitant conclusion that a state-law suit
between a District resident and a citizen of a state would not be diverse
within the meaning of Article Ill’s explicit language, id. at 600. The
plurality noted, however, that Hepburn & Dundas had not considered the
exact question before it, whether Congress could exercise its authority
under the District Clause to create diversity jurisdiction under Article III
for suits involving residents of the District. The plurality also noted that
the Court’s opinion in Hepburn & Dundas suggested that Congress could
create a “legislative” solution:
41
33 Op. O.L.C. 38 (2009) (Holder, Att’y Gen.)
It is therefore significant that . . . the Chief Justice added, as we have
seen, that it was extraordinary that the federal courts should be
closed to the citizens of “that particular district which is subject to
the jurisdiction of congress.” Such language clearly refers to Con-
gress’ Art. I power of “exclusive Legislation in all Cases whatsoev-
er, over such District.” And mention of that power seems particularly
significant in the context of Marshall’s further statement that the
matter is a subject for “legislative not for judicial consideration.”
[Hepburn & Dundas, 6 U.S. at 453.] Even if it be considered specu-
lation to say that this was an expression by the Chief Justice that
Congress had the requisite power under Art. I, it would be in the
teeth of his language to say that it is a denial of such power.
Tidewater Transfer, 337 U.S. at 589. The plurality concluded that “[t]o
put federally administered justice within the reach of District citizens . . .
is an object which Congress has a right to accomplish,” and Congress’s
determination that it had the authority to use Article I to confer jurisdic-
tion of the district courts was entitled to deference. Id. at 603, 607. 2
Two other cases have upheld Congress’s power to enact legislation that
treated the District of Columbia as though it were a state for purposes of
a constitutional provision. 3 In Milton S. Kronheim Co. v. District of
Columbia, 91 F.3d 193 (D.C. Cir. 1996), the Court of Appeals for the
District of Columbia upheld Congress’s treatment of D.C. as a state for
purposes of the Twenty-First Amendment, which provided that “[t]he
transportation or importation into any state, territory, or possession of
2 Two Justices concurred in the judgment, but would have overruled Hepburn & Dun-
das and held that D.C. was a state under Article III. They disagreed with the plurality’s
holding that the District Clause provided Congress the necessary authority to supplement
the jurisdiction conferred by Article III. Tidewater Transfer, 337 U.S. at 621–26. Al-
though no rationale commanded a majority of the Court, a majority concluded that the
District of Columbia could be treated as a state for purposes of a constitutional provision
that was seemingly limited to “states.”
3 Although they do not analyze Congress’s power under the District Clause, several
opinions of the Supreme Court have held that the District of Columbia is a state for
purposes of some constitutional provisions. See, e.g., Stoutenburgh v. Hennick, 129 U.S.
141 (1889) (holding that the District of Columbia was a state within the meaning of the
Commerce Clause); Callan v. Wilson, 127 U.S. 540 (1888) (stating that the Sixth
Amendment right to “impartial jury in the state and [judicial] district” of the crime applies
to D.C.).
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Constitutionality of the D.C. House Voting Rights Act of 2009
the United States for delivery or use therein of intoxicating liquors, in
violation of the laws thereof, is hereby prohibited.” U.S. Const. amend.
XXI, § 2. The court was considering a D.C. statute that regulated the
storage of liquor in the District, and that arguably would have violated the
dormant Commerce Clause if the Twenty-First Amendment were held not
to apply to D.C. The court upheld the statute and stated that “we will treat
the District of Columbia as a state for purposes of the Twenty-First
Amendment analysis. Congress determined at the time of the passage of
the ABC Act . . . that the District would function in a state-like manner
for alcohol regulation purposes. We have no warrant to interfere with
Congress’s plenary power under [the District Clause].” Kronheim, 91 F.3d
at 201. Similarly, in Clarke v. Washington Metropolitan Area Transit
Authority, 654 F. Supp. 712, 714 n.1 (D.D.C. 1985), aff’d, 808 F.2d 137(D.C. Cir. 1987), the District Court for the District of Columbia upheld
Congress’s power to enact legislation that treated the District as a state for
purposes of Eleventh Amendment immunity, despite that amendment’s
textual application only to each “one of the United States.”
In response to these arguments, opponents of the constitutionality of the
D.C. House Voting Rights Act have pointed out that Congress may exer-
cise its District Clause power only in accordance with other provisions of
the Constitution. But Tidewater Transfer and the other cases support the
argument that Congress has some leeway, pursuant to the District Clause,
to prescribe the manner in which the District will be treated for purposes
of various constitutional provisions. Presumably, that discretion is limited
by the rest of the Constitution, in the sense that Congress may not treat
the District as a state if doing so would violate the fundamental principles
expressed in the Constitution (as opposed to the literal text that limits a
provision to “states”). See Tidewater Transfer, 337 U.S. at 585. As dis-
cussed below, there are persuasive arguments that granting House voting
rights does not offend the structural principles animating Article I.
B. Important Constitutional Principles Reinforce
Congress’s Power Under the District Clause
Congress’s power to treat the District as though it were a state for pur-
poses of representation in the House of Representatives is consistent with
two vitally important constitutional principles: that the Constitution
43
33 Op. O.L.C. 38 (2009) (Holder, Att’y Gen.)
protects the right to be represented in the federal government, and that
this right belongs to the people, rather than the states. A narrow reading of
Congress’s authority under the District Clause would contravene the very
structural and political principles that Article I’s voting provisions were
designed to protect.
First, there is no question that the right to vote for representation in the
House of Representatives is fundamentally important. Any consideration
of Congress’s Article I power must take place against the backdrop of the
principles of self-government that illuminated the framing of the Constitu-
tion. See Powell v. McCormack, 395 U.S. 486, 547 (1969) (interpreting
Article I in light of principle of self-representation). Congressional action
to grant D.C. voting rights would vindicate these principles by expanding
the franchise. The right to participate in government directly—to petition
it, alter it, or abolish it—was thought of by many framers as an inalienable
right that could not be vitiated by governmental action, even on the con-
stitutional level. Under this theory, while the Constitution may not have
explicitly commanded that District residents receive the vote, it may not
be interpreted in a manner that invalidates an expansion of the franchise
that a majority of the people, as represented by a majority of the House
and Senate, wish to grant.
Second, extending the vote to District residents would vindicate—
rather than undermine—the structural principles expressed in Article I.
While the Senate was designed to provide representation to the states, the
House was designed to represent the people directly. See, e.g., Sen. Orrin
G. Hatch. “No Right is More Precious in a Free Country”: Allowing
Americans in the District of Columbia to Participate in National Self-
Government, 45 Harv. J. on Legis. 287, 304 (2008); U.S. Const. art. I, § 2,
c1. 1 (House members to be chosen by “the people of the several states”).
The Framers intentionally vested this right in the people, so that its en-
joyment would not depend on state citizenship or state regulation. See
U.S. Term Limits v. Thornton, 514 U.S. 779, 844 (1995) (Kennedy, J.,
concurring) (“The federal right to vote . . . does not derive from the state
power in the first instance but . . . belong[s] to the voter in his or her
capacity as a citizen of the United States”); id. at 845 (the right arises out
of the “relationship between the people of the Nation and their National
Government, with which the States may not interfere”); id. at 805 (Ste-
vens, J., for the Court) (noting that “‘while, in a loose sense, the right to
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Constitutionality of the D.C. House Voting Rights Act of 2009
vote for representatives in Congress is sometimes spoken of as a right
derived from the states,’” in fact it “was a new right, arising from the
Constitution itself” (quoting United States v. Classic, 313 U.S. 299, 315
(1941)). Given that the right to House representation actually resides in
the people themselves, it would over-read the language of the Composi-
tion Clause to hold that it explicitly precludes a congressional exercise of
Congress’s power under the District Clause to grant House voting rights
to the District’s residents.
Relatedly, expanding access to the vote in this manner would not inter-
fere with any other core principles underlying the structure established in
Article I. Providing the District with a House vote would not dilute any
other citizens’ right to vote (at least, it certainly would not dilute anyone’s
representation to any greater extent than any other exercise of Congress’s
authority to increase the number of representatives “in such Manner as
they shall by law direct,” U.S. Const. art. I, § 2, cl. 3). See Wald State-
ment at 10. Nor would providing voting rights threaten to aggrandize the
national government. As the Court has noted, one of the predominant
concerns surrounding the establishment of Congress’s power to govern
itself was the fear that elected officials would use that power at the ex-
pense of the people or the states. See Powell, 395 U.S. at 533–34. As a
result the framers were particularly concerned with Congress’s ability to
limit the number or type of people who could become representatives. See
2 Records of the Federal Convention of 1787 249–50 (M. Farrand ed.,
1911) (“A Republic may be converted into an aristocracy or oligarchy as
well by limiting the number capable of being elected, as the number
authorized to elect.” (Madison)); Powell, 395 U.S. at 548 (in light of
“fundamental principle of our representative democracy . . . that the
people should choose whom they please to govern them,” holding that
Congress could not supplement the Constitution’s list of qualifications for
office (internal citations omitted)), Here, granting the residents of the
District the right to elect a single representative would not run this risk or
contravene the rule against aggrandizement. Congress would be expand-
ing, rather than limiting, the ability of the people to elect the officials of
their choice.
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33 Op. O.L.C. 38 (2009) (Holder, Att’y Gen.)
C. No Other Controlling Authority Resolves the Question
1. Selected Cases Holding That the District Is Not a State
for Unrelated Purposes Do Not Apply Here
Although the federal courts have ruled that the District of Columbia is
not a “state” under specific provisions of the Constitution, it does not
follow that the proposed legislation is necessarily unconstitutional. This is
because the question with respect to the D.C. House Voting Rights Act is
not whether the District is a “state,” but whether Congress has authority
under the District Clause to enact legislation that treats the District as a
state for purposes of voting representation in the House. For example, in
Hephurn & Dundas, Chief Justice Marshall held that a statute conferring
diversity jurisdiction on the federal courts did not apply to suits between
citizens of D.C. and citizens of a state. Reasoning that other constitutional
provisions used the word “state” to refer only to states, the Court conclud-
ed that Congress did not intend the statute, which was modeled on the
language of Article III, to create federal jurisdiction over suits involving
District residents. Put simply, the question of Congress’s power under the
District Clause to pass legislation that treated the District of Columbia as
a congressional district was not before the Court.
Likewise, and more recently, in Adams v. Clinton, 90 F. Supp. 2d 35(D.D.C. 2000), a three-judge panel of the D.C. District Court applied
Hepburn & Dundas to hold that the District was not a state under the
Composition Clause, and therefore that the Constitution itself did not
confer voting rights on D.C. residents. The court concluded that because
“the Constitution does not contemplate that the District may serve as a
state for purposes of the apportionment of congressional representatives,”
id. at 50, “the clauses of Article I that provide for congressional voting
. . . are not applicable to residents of the District of Columbia,” id. at 60.
The Supreme Court summarily affirmed the decision. 531 U.S. 941. Like
Hepburn & Dundas, Adams does not prohibit Congress from granting
voting rights by legislation, because it addressed a question that is not
raised here, namely, whether Article I itself directly provided District
residents with a constitutionally compelled right to vote. 90 F. Supp. 2d at
38. Indeed, the court distinguished its case from Tidewater Transfer
because, in Tidewater Transfer, Congress had affirmatively exercised its
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Constitutionality of the D.C. House Voting Rights Act of 2009
legislative authority to supplement Article III and therefore the plurality
had not held that the Constitution itself established the District as a state
for purposes of Article III. Adams, 90 F. Supp. 2d at 54–55. 4
2. Passage of the Twenty-Third Amendment Does Not
Bear on Congress’s Power to Grant Congressional
Voting Rights to District Residents by Legislation
Another potential argument against the constitutionality of the D.C.
House Voting Rights Act rests on the fact that D.C. residents were granted
the right to vote in presidential elections by means of the Twenty-Third
Amendment. Some have taken Congress’s prior use of a constitutional
amendment to expand voting rights within the District to reflect the need
to use an amendment to work any type of expansion of D.C.’s voting
rights.
Congress’s choice to use an amendment to establish voting rights for
presidential elections does not imply that a constitutional amendment is
the only means by which voting rights may be granted, however. The
Twenty-Third Amendment was designed to address a wholly different
constitutional issue, voting for President under Article II, an issue over
which Congress had limited authority. See Oregon v. Mitchell, 400 U.S.
112 (1970) (holding that Congress may regulate presidential elections
through Section 5 of the Fourteenth Amendment, but not through its
Article I powers). Because the Fourteenth Amendment did not apply to
the District, Congress was forced to use a constitutional amendment,
rather than legislation, to provide the District’s residents with the right to
vote in presidential elections. See Dinh & Charnes at 21. This problem
would not be present with respect to the proposed legislation, given that
Congress has power to regulate House elections under Article I and the
District Clause.
4 Other cases that refer to the right of District residents to vote for congressional repre-
sentation, see, e.g., Michel v. Anderson, 14 F.3d 623 (D.C. Cir. 1994) (holding that House
rules cannot confer a voting representative to District residents); Banner v. United States,
428 F.3d 303, 309 (D.C. Cir. 2005) (holding that, pursuant to the District Clause, Con-
gress can prohibit the imposition of a commuter tax), can similarly be distinguished.
47
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D. The United States Has Expanded Voting Rights
by Statute in Other Circumstances
A statutory precedent also supports the conclusion that the D.C. House
Voting Rights Act is constitutional. The Uniformed and Overseas Citi-
zens Absentee Voting Act (“UOCAVA”), 42 U.S.C. § 1973ff et seq.,
“extends federal voting rights to U.S. citizens formerly citizens of a State
who reside outside the United States.” Romeu v. Cohen, 235 F.3d 118,
120 (2d Cir. 2001). UOCAVA applies even to voters who have no plans
to return to their former states, do not pay taxes in their former states, and
have no residence in their former states. Although the statute permits
these voters to vote absentee in their former states, rather than allowing
them to vote as part of a non-state entity, the fact remains that these voters
would be disenfranchised under a narrow reading of Article I.
Under a literalist reading, because they are no longer citizens of a state,
they would not have “the Qualifications requisite for Electors of the most
numerous Branch of the State Legislature.” U.S. Const. art. I, § 2, cl. 1;
see Dinh & Charnes at 18.
III. Arguments Against the Constitutionality of
the D.C. House Voting Rights Act of 2009
The Office of Legal Counsel (“OLC”) recently submitted to the Office
of Management & Budget its conclusion that the D.C. House Voting
Rights Act of 2009 is unconstitutional, and has provided me with a thor-
ough explanation of the basis for its constitutional conclusion. In reaching
this conclusion, the Office of Legal Counsel remained consistent with two
recent, prior opinions offered by the Office. See D.C. Voting Rights Act,
31 Op. O.L.C. at 147 (“S. 1257 violates the Constitution’s provisions
governing the composition and election of the United States Congress.”);
E-mail for Velma Taylor, Office of Legislative Affairs, from Michelle
Boardman, Deputy Assistant Attorney General, Office of Legal Counsel,
Re: HR. 5388, the District of Columbia Fair and Equal House Voting
Rights Act of 2006 (May 22, 2006) (“We conclude that the creation of a
District of Columbia seat by this legislation is unconstitutional. Member-
ship in the House of Representatives is limited to representatives elected
48
Constitutionality of the D.C. House Voting Rights Act of 2009
by the people of the several States, and the District of Columbia is not a
State.”). 5 The Office of Legal Counsel rests its argument on the constitu-
tional text of the Composition Clause, as well as related historical evi-
dence and judicial authority, and disputes the argument that the District
Clause affords Congress sufficient authority to extend congressional
voting rights to the District of Columbia by ordinary legislation.
Although I have reached the conclusion that the balance of arguments
tips slightly in favor of the constitutionality of the D.C. House Voting
Rights Act, I remain mindful of the substantial constitutional arguments
that have been advanced against the proposed legislation, including those
offered by the Office of Legal Counsel. Consequently, while, for the
reasons explained above, it is my view that the fundamental importance of
the right to representation in our constitutional scheme tips the scales in
favor of the proposed legislation in this exceptional case, I believe it is
important that any decision-maker be aware of the weighty constitutional
arguments on the other side. This is particularly so given the substantial
litigation risks that this constitutional uncertainty creates. Accordingly, I
will provide a brief summary of the views that have been advanced
against the constitutionality of the statute, including the principal argu-
ments advanced by the Office of Legal Counsel. 6
5 Although Congress had not sought to give the District voting representation by ordi-
nary legislation until recently, OLC also points to its analysis of related questions as
further support for OLC’s longstanding view. See, e.g., Letter for Benjamin Zelenko,
Committee on the Judiciary, House of Representatives, from Martin F. Richman, Acting
Assistant Attorney General, Office of Legal Counsel (Aug. 11, 1967) (explaining that
“provisions for elections of Senators and Representatives in the Constitution are stated
in terms of the States, and the District of Columbia is not a State”); Memorandum for
Warren Christopher, Deputy Attorney General, from Frank M. Wozencraft, Assistant
Attorney General, Office of Legal Counsel, Re: Budget, Economic, and State of the Union
Messages (Oct. 16. 1968) (same); District of Columbia Representation in Congress:
Hearing on S.J. Res. 65 Before the Subcomm. on the Constitution of the S. Comm. on the
Judiciary, 95th Cong. 16–29 (1978) (testimony of John M. Harmon, Assistant Attorney
General, Office of Legal Counsel) (stating that, “[i]f the District is not to be a state, then
an amendment [to the Constitution] is required” to give the District voting representation
in Congress, as “we do not believe that the word ‘state’ as used in Article I can fairly be
construed to include the District under any theory of ‘nominal statehood’”).
6 OLC prepared a thorough written analysis delineating its views regarding the consti-
tutionality of the proposed legislation. My summary of the arguments that have been
advanced against the constitutionality of the legislation here does not purport to be a full
49
33 Op. O.L.C. 38 (2009) (Holder, Att’y Gen.)
Those who argue against the constitutionality of the legislation primari-
ly advance the following arguments:
A. The Text of the Composition Clause Is Clear
To proponents of the view that the legislation is unconstitutional, in-
cluding OLC, the key constitutional provision is the Composition Clause,
which governs the membership of the House of Representatives. The
Clause provides: “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.” U.S.
Const. art. I, § 2, cl. 1. From their perspective, the language itself clearly
limits the right to choose “members” of the House to people from states,
and that nothing in the text of the Composition Clause indicates that the
people of an entity other than a state may do so. Supporters of this view
urge that the reference to “the people” in the Clause is best read to under-
score that members of the House would be selected by popular vote
within “the several states” whereas members of the Senate would be
selected (prior to the adoption of the 17th Amendment) by state legisla-
tures. It is this critical distinction that underlies the familiar description of
the House of Representatives as “the people’s house.” 7
catalogue of the issues raised in OLC’s analysis, but rather reflects what I understand to
be key points raised by those who argue against the constitutionality of the statute. I am
happy to provide OLC’s full written analysis in the event that you or other decision-
makers are interested.
7 This line of reasoning is underscored by other provisions of the Composition Clause.
Immediately after providing that members of the House shall be chosen by “the people of
the several States,” the Clause directs that the electors in House elections “shall have the
Qualifications requisite for Electors of the most numerous Branch of the State Legisla-
ture.” U.S. Const. art. I, § 2, cl. 1. (emphasis added). “[F]or most of its history,” however,
“the District of Columbia has had nothing that could even roughly be characterized as a
legislature for the entire District.” Adams, 90 F. Supp. 3d at 47; see also id. at 49 (“The
impossibility of treating Congress as the legislature under that clause is manifest, as doing
so would mean that Congress would itself choose the District’s senators.”). Likewise, the
same section of Article I provides: “When vacancies happen in the representation from
any State, the executive authority thereof shall issue writs of election to f ill such vacan-
cies.” As the Adams court explained, this provision would be anomalous as applied to the
District. Leaving aside the fact that the Mayor of the District is a relatively recent office,
50
Constitutionality of the D.C. House Voting Rights Act of 2009
B. Historical Evidence and More Recent Practice
Support This View
This conclusion is reinforced by pointing to evidence that the Framers
regarded states as uniquely important components of the federal constitu-
tional structure. See Adams, 90 F. Supp. at 56 (“The Constitution’s re-
peated references to states . . . are reflections of the Great Compromise
forged to ensure the Constitution’s ratification. There is simply no evi-
dence that the Framers intended that not only citizens of states, but un-
specified others as well, would share in the congressional franchise.”).
Likewise, those who find the legislation unconstitutional contend that the
evidence from founding-era history supports the conclusion that Congress
may not give the District voting representation in the House without
making the District a state. See generally Adams, 90 F. Supp. 2d at 50–53.
The District was created to serve the distinct purpose of protecting the
national government and its institutions. That particular purpose—
maintaining the nation’s capital as a non-state entity—obviously does
not require that the District be denied voting representation in Congress.
See, e.g., Raven-Hansen, Congressional Representation for the District of
Columbia, 12 Harv. J. on Legis. at 184. But opponents of the proposed
legislation, including OLC, contend that Founding-era statements address-
ing the voting rights of residents of such a district—including statements
“it is Congress that is the ultimate executive authority for the District.” Id. at 49. And
“[t]he possibility that the Framers intended Congress to fill its own vacancies seems far
too much of a stretch, even if the constitutional fabric were more f lexible than it appears
to be.” Id.; see also U.S. Const. art. I, § 2, cl. 2 (“No person shall be a Representative . . .
who shall not, when elected, be an inhabitant of that State in which he shall be chosen.”)
(emphasis added). The repeated textual references to “states” or “state” in this Clause,
when combined with the numerous constitutional provisions relating to federal elections
that similarly restrict voting to “states” and their people, are presented as a clear intention
to exclude non-state entities, such as the District, unless the Constitution expressly
provides otherwise. See U.S. Const. amend. XXIII, § 1 (The District “shall appoint . . . [a]
number of electors of President and Vice President equal to the whole number of Senators
and Representatives in Congress to which the District would be entitled if it were a State,
but in no event more than the least populous State; they shall be 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 be electors appointed by a State; and they shall meet in
the District and perform such duties as provided by the twelfth article of amendment.”
(emphasis added)).
51
33 Op. O.L.C. 38 (2009) (Holder, Att’y Gen.)
from prospective district residents themselves—clearly reveal an under-
standing that citizens of the District would have no right to vote in nation-
al elections, as they were not residents of a state. 8
Likewise, proponents argue that subsequent historical practice and the
resultant constitutional structure further confirm this view. For instance,
some suggest that the ratification of the Twenty-Third Amendment,
ratified in 1961—which provides that the District “shall appoint . . . [a]
number of electors of President and Vice President equal to the whole
number of Senators and Representatives in Congress to which the District
would be entitled if it were a State, but in no event more than the least
populous State; they shall be 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 be electors appointed by a State; and they shall
meet in the District and perform such duties as provided by the twelfth
article of amendment” (emphasis added) —provides further support for
this view, as this text would serve no purpose if the District were already
8 See, e.g., 10 Annals of Cong. 991, 998–99 (1801) (remarks of Rep. Dennis) (stating
that because of District residents’ “contiguity to, and residence among the members of
[Congress],” “though they might not be represented in the national body, their voice
would be heard. But if it should be necessary [that they be represented], the Constitution
might be so altered as to give them a delegate to the General Legislature when their
numbers should become sufficient”); id. at 992 (remarks of Rep. Bird) (assigning “blame”
for disenfranchisement of District residents to “the men who framed the Constitutional
provision, who peculiarly set apart this as a District under the national safeguard and
Government”); 5 The Papers of Alexander Hamilton 189–90 (Harold C. Syrett ed., 1962)
(reprinting text of subsequently rejected amendment proposed by Alexander Hamilton
during the New York ratifying convention: “That When the Number of Persons 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 District shall cease to be parcel of the State granting the
Same, and Provision shall be made by Congress for their having a District Representa-
tion in that Body.” (emphasis added)); see also 12 Annals of Cong. 487 (1803) (remarks
of Rep. Smilie) (“Under the exercise of exclusive jurisdiction the citizens are deprived of
all political rights, nor can we confer them.”); 5 The Documentary History of the Ratifica-
tion of the Constitution 621 (Merrill Jensen, John P. Kaminski & Gaspare J. Saladino eds.,
1976) (statement by Samuel Osgood, a delegate to the Massachusetts ratifying conven-
tion, that he could accept the Seat of Government provision only if it were amended to
provide that the District be “represented in the lower House,” though no such amendment
was ultimately included in the amendments recommended by the Massachusetts conven-
tion); see generally Adams, 90 F. Supp. 2d at 51–53 (recounting this history).
52
Constitutionality of the D.C. House Voting Rights Act of 2009
a state for purposes of constitutional provisions governing federal elec-
tions. Even if this amendment is not conclusive regarding the meaning of
Article I, some, including OLC, contend that fidelity to constitutional
structure now requires factoring this amendment into the interpretation of
Article I.
C. Judicial Precedent Supports This View
Proponents of this view also argue that recent judicial authority affirms
this same conclusion, and point to Adams, which relied on similar evi-
dence from text, history, and precedent to conclude that the District of
Columbia is not a “state” within the meaning of the Composition Clause.
90 F. Supp. 2d at 55–56 (“In sum, we conclude that constitutional text,
history, and judicial precedent bar us from accepting plaintiffs’ contention
that the District of Columbia may be considered a state for purposes of
congressional representation under Article I.”). That decision was sum-
marily affirmed by the Supreme Court. 531 U.S. 941 (2000); see also
Hicks v. Miranda, 422 U.S. 332, 344–45 (1975) (summary affirmance is a
precedential ruling on the merits).
D. The District Clause Provides Only Limited
Authority to Congress
This argument rejects the notion that the District Clause might provide
support for the legislation, concluding that such direct reliance on Con-
gress’s authority under the District Clause to support District voting
representation in the House is not persuasive. Its proponents acknowledge
that the District Clause gives Congress broad power to provide for the
governance of the District, but contend that what this means is simply that
Congress has “all legislative powers that the legislature of a state might
exercise within the state.” Capital Traction Co. v. Hof, 174 U.S. 1, 5
(1899). As courts have stressed, Congress’s broad power to provide for
the governance of the District does not give it the authority to “contravene
any provision of the Constitution.” Palmore v. United States, 411 U.S.
389, 397 (1973) (quoting Hof , 174 U.S. at 5); accord Keller v. Potomac
Elec. Co., 261 U.S. 428, 443–44 (1923); see also Neild v. Dist. of Colum-
bia, 110 F.2d 246, 249 (D.C. Cir. 1984) (“Subject only to those prohibi-
tions of the Constitution which act directly or by implication upon the
53
33 Op. O.L.C. 38 (2009) (Holder, Att’y Gen.)
federal government, Congress possesses full and unlimited jurisdiction to
provide for the general welfare of citizens within the District of Columbia
by any and every act of legislation which it may deem conducive to that
end.”) (emphasis added). Consequently, from this perspective, the District
Clause does not afford Congress the opportunity to override the require-
ments of the Composition Clause, nor can the Composition Clause rea-
sonably be read to permit Congress to treat the District as a “state” for
purposes of representation in the House through legislation. Indeed, some
argue that, if it could be so read, there would be no principled basis for
concluding that Congress could not, by statute, give territories voting
representation in the House as well.
E. Tidewater Transfer Does Not Support a Contrary Conclusion
Those who argue that the proposed legislation is unconstitutional, in-
cluding OLC, contest the reliance of proponents of the pending legislation
on National Mutual Insurance Co. v. Tidewater Transfer Co., 337 U.S.
582 (1949). That case held that Congress may give Article III courts
jurisdiction over suits brought by citizens of the District of Columbia
against citizens of the several states, even though Article III expressly
confers diversity jurisdiction only over cases involving residents of
“states.” However, opponents argue that the fractured decision in Tide-
water Transfer is not persuasive authority for the proposition that Con-
gress may enact legislation that treats the District of Columbia a “state”
for purposes of the Composition Clause for at least two reasons. First, the
holding that Congress could, through legislation, provide that the District
should be treated as a state for purposes of Article III diversity jurisdic-
tion was in a plurality opinion that had the support of only three justices
and should not be given precedential effect. Second, even if the opinion
were given some precedential effect, opponents argue that, unlike the
decision to extend Article III diversity jurisdiction to cases involving the
District, the decision to treat the District as a state for purposes of the
Composition Clause would improperly disturb the balance between the
Union and the several states struck in the Constitution, and would there-
fore exceed the limit Justice Jackson presented in Tidewater Transfer.
54
Constitutionality of the D.C. House Voting Rights Act of 2009
F. Strong Policy Reasons for Extending Congressional
Voting Rights Do Not Provide a Basis for
Overriding Clear Constitutional Text
Some proponents of the view that this legislation is unconstitutional,
including OLC, acknowledge the strong policy considerations that have
been advanced in support of the extension of congressional voting rights
to citizens of the District, noting that there is no denying the force of
the considerations in favor of enfranchising District residents. See, e.g.,
Loughborough v. Blake, 18 U.S. 317, 324 (1820) (conceding that “in
theory it might be more congenial to the spirit of our institutions to admit
a representative from the district,” but omitting any suggestion that Con-
gress might provide such representation by simple legislation); Adams, 90
F. Supp. 2d at 66 (“We do not disagree that defendants have failed to
offer a compelling justification for denying District residents the right to
vote in Congress.”). As important as these constitutional purposes are,
however, they nevertheless argue that the fact that the plain terms of the
Composition Clause give the people of the states, and only those electors,
the right to choose House members is not surprising or at odds with the
central purposes of the founding charter. Likewise, some, including OLC,
recognize the arguments that these policy considerations are implicit in
the constitutional structure and that, in consequence, Congress should be
assumed to have the authority to enact the pending legislation unless the
Constitution clearly prohibits it. OLC’s view, however, is that this pro-
posed legislation would be unconstitutional even if such a clear statement
rule were appropriate in this context.
* * * * *
In sum, those who find the proposed legislation unconstitutional, in-
cluding OLC, conclude that Congress may not by statute give the District
of Columbia voting representation in the House. From this perspective,
the relevant constitutional text, original understanding, historical practice,
and judicial precedent all clearly support the proposition that the District
is not a “state” within the meaning of the Composition Clause. Even
acknowledging that the District Clause gives Congress broad power to
legislate for the District, proponents of this view contend that the District
55
33 Op. O.L.C. 38 (2009) (Holder, Att’y Gen.)
Clause does not permit Congress to override the prescriptions of the
Composition Clause.
III. Conclusion
I have concluded that, in this exceptional case, although the question
is exceedingly close, my views are different than those offered by the
Office of Legal Counsel. For the reasons outlined in Part II above, I
believe that, for each of these constitutional points, there are sufficient
rejoinders to, at a minimum, place the answer to the constitutional ques-
tion in doubt. In my view, the arguments of those who find the proposed
legislation unconstitutional, including OLC’s analysis, identify no clearly
controlling constitutional text or squarely on-point precedent. What is at
stake in this legislation is whether the more than half-a-million residents
of our Nation’s capital, who pay taxes, serve in the Armed Forces, and sit
on federal juries like other Americans, have what the Supreme Court has
referred to as the most fundamental of political rights, the franchise. See
Wesberry v. Sanders, 376 U.S. 1, 17–18 (1964) (“No right is more pre-
cious in a free country than that of having a voice in the election of those
who make the laws under which, as good citizens, we must live. Other
rights, even the most basic, are illusory if the right to vote is under-
mined.”); Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886) (“[T]he political
franchise of voting . . . is regarded as a fundamental political right, be-
cause preservative of all rights”). In those circumstances, and in the
absence of clear constitutional authority to the contrary, it is my view that
we must give weight to the animating purposes of the Constitution—and
in particular its fundamental elevation of democracy and the right to
vote—and therefore I conclude that the balance tips in favor of the consti-
tutionality of the proposed legislation.
ERIC H. HOLDER, JR.
Attorney General
56
Assistance of Counsel in Removal Proceedings ( II )
The Attorney General’s decision in Matter of Compean, Bangaly & J-E-C-, 24 I. & N.
Dec. 710 (Att’y Gen. 2009); Assistance of Counsel in Removal Proceedings ( I ), 33
Op. O.L.C. 1 (2009) (Mukasey, Att’y Gen.), is vacated.
The Acting Director of the Executive Office for Immigration Review shall initiate
rulemaking procedures as soon as practicable to evaluate the pre-Compean framework
for reviewing claims of ineffective assistance of counsel in deportation proceedings
and to determine what modifications should be proposed for public consideration.
Pending the issuance of a final rule, the Board of Immigration Appeals and Immigration
Judges should apply the pre-Compean standards to all pending and future motions to
reopen removal proceedings based upon ineffective assistance of counsel.
June 3, 2009
OPINION IN REMOVAL PROCEEDINGS
MATTER OF ENRIQUE SALAS COMPEAN, RESPONDENT
MATTER OF SYLLA BANGALY, RESPONDENT
MATTER OF J-E-C-, ET AL., RESPONDENTS
On January 7, 2009, Attorney General Mukasey overruled in part the
decisions of the Board of Immigration Appeals (“Board”) in Matter of
Lozada, 19 I. & N. Dec. 637 (BIA 1988), and Matter of Assaad, 23 I. & N.
Dec. 553 (BIA 2003), and affirmed the Board’s orders denying reopening
in Matter of Compean, A078 566 977 (BIA May 20, 2008), Matter of
Bangaly, A078 555 848 (BIA Mar. 7, 2008), and Matter of J-E-C- (BIA
Apr. 8, 2008). See Matter of Compean, Bangaly & J-E-C-, 24 I. & N.
Dec. 710 (Att’y Gen. 2009) (“Compean”); Assistance of Counsel in Re-
moval Proceedings ( I ), 33 Op. O.L.C. 1 (2009) (Mukasey, Att’y Gen.).
In Lozada, the Board established the procedural requirements for filing
a motion to reopen deportation (now removal) proceedings based upon a
claim of ineffective assistance of counsel and required the alien to show
that he was prejudiced by the action or inaction of his counsel. Lozada, 19
I. & N. Dec. at 639–40. The Compean decision acknowledged that the
Lozada framework had “largely stood the test of time,” having been
expressly reaffirmed by the Board fifteen years after its initial adoption.
Compean, 24 I. & N. Dec. at 731; see also Assaad, 23 I. & N. Dec. at 556–
57 (affirming the application of Lozada to removal proceedings). None-
theless, Compean both rejected Lozada’s constitutional reasoning and
57
33 Op. O.L.C. 57 (2009) (Holder, Att’y Gen.)
ordered the Board not to rely upon the Lozada framework, even as a
discretionary matter. Instead, Compean set forth, as an exercise of the
Attorney General’s administrative discretion, a new substantive and
procedural framework for reviewing all such claims and a formulation of
the prejudice showing different from that followed by many courts, de-
spite the limited discussion of the Lozada framework in the briefs submit-
ted in Compean by the parties and amici curiae. Compean further provid-
ed that this new administrative framework should apply “henceforth,”
even though the decision acknowledged it might conflict with the Loza-
da-based approach taken by a number of federal courts of appeals. See
Compean, 24 I. & N. Dec. at 730 & n.8.
For the reasons stated herein, I have determined that it is appropriate to
reconsider the January 7, 2009 decision.
Establishing an appropriate framework for reviewing motions to reopen
immigration proceedings based on claims of ineffective assistance of
counsel is a matter of great importance. I do not believe that the process
used in Compean resulted in a thorough consideration of the issues in-
volved, particularly for a decision that implemented a new, complex
framework in place of a well-established and longstanding practice that
had been reaffirmed by the Board in 2003 after careful consideration. The
preferable administrative process for reforming the Lozada framework
is one that affords all interested parties a full and fair opportunity to
participate and ensures that the relevant facts and analysis are collected
and evaluated.
Accordingly, I direct the Acting Director of the Executive Office for
Immigration Review to initiate rulemaking procedures as soon as practi-
cable to evaluate the Lozada framework and to determine what modifica-
tions should be proposed for public consideration. After soliciting infor-
mation and public comment, through publication of a proposed rule in the
Federal Register, from all interested persons on a revised framework for
reviewing claims of ineffective assistance of counsel in immigration
proceedings, the Department of Justice may, if appropriate, proceed with
the publication of a final rule.
In Compean, the introduction of a new procedural framework depended
in part on Attorney General Mukasey’s conclusion that there is no consti-
tutional right to effective assistance of counsel in removal proceedings.
Because that conclusion is not necessary either to decide these cases
58
Assistance of Counsel in Removal Proceedings ( II )
under pre-Compean standards or to initiate a rulemaking process, this
Order vacates Compean in its entirety. To ensure that there is an estab-
lished framework in place pending the issuance of a final rule, the Board
and Immigration Judges should apply the pre-Compean standards to all
pending and future motions to reopen based upon ineffective assistance of
counsel, regardless of when such motions were filed. The litigating posi-
tions of the Department of Justice will remain unaffected by this Order.
Finally, prior to Compean, the Board itself had not resolved whether its
discretion to reopen removal proceedings includes the power to consider
claims of ineffective assistance of counsel based on conduct of counsel
that occurred after a final order of removal had been entered. Given the
absence of a pre-Compean standard of the Board to apply pending issu-
ance of a final rule, I resolve the question in the interim by concluding
that the Board does have this discretion, and I leave it to the Board to
determine the scope of such discretion.
Turning to the merits of the particular cases at issue, I find that, for the
reasons stated by the Board, its orders denying reopening of the three
matters reviewed in Compean were appropriate under the Lozada frame-
work and standards as established by the Board before Compean. On that
basis, I concur with Attorney General Mukasey’s decision to affirm the
Board’s decisions denying reopening of these matters. Compean, 24
I. & N. Dec. at 743.
ERIC H. HOLDER, JR.
Attorney General
59