ConfirmThem

By AndrewHyman Posted in Analysis and Predictions — Comments () / Email this page » / Leave a comment »

Viet Dinh has been widely considered as a potential circuit court nominee, or even a Supreme Court nominee. Eugene Volokh has a recent post discussing Dinh's role in the ongoing efforts to give the residents of Washington D.C. voting representation in Congress. In fact, legislation is now pending in Congress to accomplish this feat without a constitutional amendment, and Dinh has written in support of the idea. He's provided a very good writing sample, although Dinh doesn't quote one of the critical provisions in the U.S. Constitution that (to my mind) defeats this proposal. The Fourteenth Amendment says:

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.

I don't see how this could be consistent with Congress choosing whether or not the District of Columbia should have a representative in Congress. What do you think? Did Dinh purposely not mention this constitutional provision, because he knew it's a killer? Note that Dinh did vaguely allude to this constitutional provision at footnote 78 of his brief (while citing this case). Suppose the Constitution didn't contain any provision like this; would Congress have power to bestow upon D.C. voters as much influence in the House of Representatives as California or Texas has? I don't think so, and therefore it's hard to see where Congress gets the power Dinh claims it has.

If Congress wants to give residents of Washington D.C. representation in Congress, without going to the trouble of amending the Constitution, then Congress can simply return some land to Maryland and/or Virginia, or grant full statehood to D.C.

UPDATE: The House Committee on Government Reform has voted 29-4 in favor of the bill to give Washington D.C. voting representation in the House of Representatives. More developments here and here at confirmthem.