ConfirmThem

It's scary that two former Circuit Court judges (one generally considered conservative, the other liberal) would espouse a position so contrary to the Constitution.

The argument that the two make is based on the very broad reading the courts have given to the District Clause. The Constitution gives plenary power over D.C. to Congress, and they have interpreted that to mean that Congress can do anything and everything with respect to the District. That would include giving congressional seats to the District. I think they may have even gone so far as to argue that the District could be given Senate seats (a position I think is unconstitutional even if the House side would pass muster).

It's really quite a close issue. There are the clauses concerning Congress that would seem to indicate that only actual states get voting members of the House, and there is a long line of cases that gives Congress absolute power to govern the District. There is seemingly a good faith argument that the statute would be constitutional, so I think it will likely be resolved in the courts when a state brings suit after passage for dilution of its voting power. I wonder exactly who would have standing to challenge the provision. As a DC resident I would benefit from it, so I think I could file suit. I wonder if say the State of Georgia could sue; or for that matter if any voter in one of the 435 currently existing districts could. I think it will be interesting to watch.

Reldim, if Congress can grant voting representation in the House to DC, then it can also give voting representation in the House to Puerto Rico, Guam, American Samoa and the US Virgin Islands under Article IV, Section 3, Clause 2. Right? After all, the principles are very similar.

A separate point is that, if we follow Starr’s argument regarding Article I, Section 8, Clause 16 (i.e. the Clause giving Congress power to exercise exclusive legislation over Washington DC), then Congress could grant DC voting power in the House equal to the voting power of California. Right? After all, Article I, Section 8, Clause 16 doesn’t describe how representatives are apportioned.

If there's any Clause in the Constitution that would arguably give Congress power to grant DC voting representation in the House of Representatives, it's the power of Congress to grant statehood, which would arguably include power to grant partial statehood. See Article IV, Section 3, Clause 1. But such a partial power could just as easily be used for Puerto Rico, Guam, American Samoa, and the US Virgin Islands, not to mention Iraq and China. Such a partial power has never been used by Congress before, even when millions of Americans were living in areas that later would become full-fledged states. Those millions of Americans were even more “disenfranchised” than the citizens of DC are nowadays, because they couldn’t even choose presidential electors.

The idea that Congress can now grant partial statehood under the Clause giving Congress power to exercise exclusive legislation over Washington DC (i.e. Article I, Section 8, Clause 16) just doesn't pass the smell test. That clause is not the most relevant clause. Article IV, Section 3, Clause 1 (empowering Congress to grant statehood) is the most relevant clause. If the clause giving Congress power to exercise exclusive legislation over Washington D.C. is at all pertinent to representation in the House, it would at most allow DC a vote regarding federal legislation relating to Washington D.C. rather than federal legislation relating to, say, Yellowstone National Park.

I just don’t see how anyone can say what Starr and Wald said in their op/ed, with a straight face.

And if Congress grants partial statehood to DC, can it subsequently ever take it away? Not according to Article IV, Section 3, Clause 1 which gives Congress no power at all to revoke statehood in any way. Therefore, the idea that Congress can grant partial statehood to DC would render the 23rd Amendment totally pointless, seeing as how Congress could have simply passed legislation allowing DC residents to vote in presidential elections.