Order Code RL33824
The Constitutionality of Awarding the Delegate for
the District of Columbia a Vote in the House of
Representatives or the Committee of the Whole
January 24, 2007
Kenneth R. Thomas
Legislative Attorney
American Law Division
The Constitutionality of Awarding the Delegate for the
District of Columbia a Vote in the House of
Representatives or the Committee of the Whole
Summary
Two proposals have been made in the 110th Congress regarding granting the
Delegate of the District of Columbia voting rights in the House. On January 9, 2007,
Delegate Eleanor Holmes Norton of the District of Columbia introduced H.R. 328,
the District of Columbia Fair and Equal House Voting Rights Act of 2007. On
January 19, Representative Hoyer introduced H.Res. 78, which proposed House Rule
changes allowing the District of Columbia delegate (in addition to the Resident
Commissioner of Puerto Rico and the delegates from American Samoa, Guam, and
the Virgin Islands) to vote in the Committee of the Whole, subject to a revote in the
full House if such votes proved decisive. H.R. 328 has not yet been considered;
H.Res. 78 was approved by the House on January 24, 2007, by a vote of 226-91.
These two approaches appear to raise separate, but related, constitutional issues.
As to H.R. 328, it is difficult to identify either constitutional text or existing case law
that would directly support the allocation by statute of the power to vote in the full
House to the District of Columbia Delegate. Further, that case law that does exist
would seem to indicate that not only is the District of Columbia not a “state” for
purposes of representation, but that congressional power over the District of
Columbia does not represent a sufficient power to grant congressional representation.
In particular, at least six of the Justices who participated in what appears to be
the most relevant Supreme Court case on this issue, National Mutual Insurance Co.
of the District of Columbia v. Tidewater Transfer Co., authored opinions rejecting
the proposition that Congress’s power under the District Clause was sufficient to
effectuate structural changes to the federal government. Further, the remaining three
judges, who found that the Congress could grant diversity jurisdiction to District of
Columbia citizens despite the lack of such jurisdiction in Article III, specifically
limited their opinion to instances where the legislation in question did not involve the
extension of fundamental rights. To the extent that the representation in Congress
would be seen as such a right, all nine Justices in Tidewater Transfer Co. would
arguably have found the instant proposal to be unconstitutional.
H.Res. 78, on the other hand, is similar to amendments to the House Rules that
were adopted during the 103rd Congress. These rule changes survived judicial
scrutiny at both the District Court and the Court of Appeals level. It would appear,
however, that these amendments were upheld primarily because of the provision
calling for a revote by the full House when the vote of the delegates was decisive in
the Committee of the Whole.
Although not beyond question, it would appear likely that the Congress does not
have authority to grant voting representation in the House of Representatives to the
Delegate from the District of Columbia as contemplated under H.R. 328. As the
revote provisions provided for in H.Res. 78 would render the Delegate’s vote in the
Committee of the Whole largely symbolic, however, the amendments to the House
Rules would be likely to pass constitutional muster.
Contents
Proposed Legislation and Rule Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
The Meaning of the Term “State” in the House Representation Clause . . . . . . . . 4
The Power of Congress To Provide Representation to Political Entities That
Are Not States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
The Significance of the Case of National Mutual Insurance Co. v.
Tidewater Transfer Co. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Whether the District of Columbia is a “State” for Purposes of Diversity
Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Whether the District of Columbia is a “State” for Purposes of
Representation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Whether Congress Has the Authority Under the District Clause To
Extend Diversity Jurisdiction to the District of Columbia . . . . . . . . . . 14
Whether Congress Has the Authority Under the District Clause To
Extend House Representation to the District of Columbia . . . . . . . . . 16
The Significance of Limiting Delegate Voting to the Committee of
the Whole . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
The Constitutionality of Awarding the
Delegate for the District of Columbia a Vote
in the House of Representatives or in the
Committee of the Whole
Proposed Legislation and Rule Change
Two proposals have been made in the 110th Congress made regarding granting
the Delegate for the District of Columbia voting rights in the House. On January 9,
2007, Delegate Eleanor Holmes Norton of the District of Columbia introduced H.R.
328,1 the District of Columbia Fair and Equal House Voting Rights Act of 2007,
which would give the District of Columbia Delegate a vote in the Full House. On
January 19, 2007, Representative Hoyer introduced H.R. Res. 78,2 a resolution to
amend the House Rules to allow the District of Columbia Delegate (in addition to
delegates from Puerto Rico,3 American Samoa, Guam and the Virgin Islands) to vote
in the Committee of the Whole, subject to a revote in the full House if such votes
proved decisive. Although H.R. 328 has not yet been considered, H.Res. 78 was
approved by the House on January 24, 2007.4
Under H.R. 328, the House would be expanded by two Members to a total of
437 Members, and the first of these two positions would be allocated to create a
voting Member representing the District of Columbia.5 Although it is generally
1 110th Cong, 1st Sess.
2 110th Cong, 1st Sess.
3 Although Puerto Rico is represented by a “Resident Commissioner,” for purposes of this
report, such representative will be referred to as a delegate.
4 The resolution was passed by a vote of 226-191. Congressional Record, daily edition, vol.
153, January 24, 2007, p. H912.
5 The second position would be allocated in accordance with the 2000 census data and
existing federal law. H.R. 328, § 4(b). It would appear that, if the bill was passed today, that
the state of Utah would receive the second seat. Mary Beth Sheridan, House Panel Endorses
D.C. Vote: Bill Needs Approval From Judiciary Committee, WASH. POST., May 19, 2006
at B1. Common Sense Justice for the Nation’s Capital: An Examination of Proposals to
Give D.C. Residents Direct Representation Before the House Committee on Government
Reform, 108th Cong., 2nd Sess. at 18 (hereinafter D.C. Hearing). A similar bill introduced in
the 109th Congress would have provided that the second representative position be allocated
as an at-large seat. Representative Sensenbrenner, then-Chairman of the House Judiciary
Committee, objected to this provision, suggesting that Utah pass a redistricting plan to
accommodate the added seat. Utah has passed a law for this purpose, and the most recent
(continued...)
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accepted that the Delegate for the District of Columbia could be given a vote in the
House of Representatives by constitutional amendment, questions have been raised
whether such a result can be achieved by statute.
H.R. 328 provides the following: “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.”6 The proposal also provides that
regardless of existing federal law regarding apportionment,7 “the District of
Columbia may not receive more than one member under any reapportionment of
members.”8 The proposal also contains a non-severability clause, so that if a
provision of the Act is held unconstitutional, the remaining provisions of H.R. 328
would be treated as invalid.9
In contrast, H.Res. 78 only grants the District of Columbia delegate a vote in the
Committee of the Whole, a procedural posture of the full House which is invoked to
speed up floor action. Specifically, the resolution amends House Rule III, cl. 3(a) to
provide that “in a Committee of the Whole House on the state of the Union, the
Resident Commissioner to the United States from Puerto Rico and each Delegate to
the House shall possess the same powers and privileges as Members of the House.”
An additional change to the House Rules, however, limits the effect of this
voting power when it would be decisive. H.Res. 78 also amended House Rule XVIII,
cl. 6 to provide that “whenever a recorded vote on any question has been decided by
a margin within which the votes cast by the Delegates and the Resident
Commissioner have been decisive, the Committee of the Whole shall automatically
rise and the Speaker shall put that question de novo without intervening debate or
other business. Upon the announcement of the vote on that question, the Committee
of the Whole shall resume its sitting without intervening motion.” Both of these
provisions of H.Res. 78 are similar to amendments to the House Rules that were in
effect during the 103rd Congress.
Background
Residents of the District of Columbia have never had more than limited
representation in Congress.10 Over the years, however, efforts have been made to
5 (...continued)
version of the bill does not contemplate an at-large seat. Elizabeth Brotherton, Norton
Prepping to Cast D.C.’s First House Vote, ROLL CALL (January 11, 2007).
6 H.R. 328, § 3(a).
7 See 2 U.S.C. §2a.
8 H.R. 328, § 3(b).
9 H.R. 328, § 5.
10 The District has never had any directly elected representation in the Senate, and has been
represented by a nonvoting Delegate in the House of Representatives for 33 of its 214-year
(continued...)
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amend the Constitution so that the District would be treated as a state for purposes
of voting representation. For instance, in 1978, H.J.Res. 554 was approved by two-
thirds of both the House and the Senate, and was sent to the states. The text of the
proposed constitutional amendment provided, in part, that “[f]or purposes of
representation in the Congress, election of the President and Vice President, and
Article V of this Constitution,[11] the District constituting the seat of government of
the United States shall be treated as though it were a State.”12 The Amendment was
ratified by 16 states, but expired in 1985 without winning the support of the requisite
38 states.13
Since the expiration of this proposed Amendment, a variety of other proposals
have been made to give the District of Columbia representation in the full House. In
general, these proposals would avoid the more procedurally difficult route of
amending the Constitution, but would be implemented by statute. Thus, for instance,
bills were introduced and considered which would have: (1) granted statehood to the
non-federal portion of the District; (2) retroceded the non-federal portion of the
District to the State of Maryland; and (3) allowed District residents to vote in
Maryland for their representatives to the Senate and House.14 Efforts to pass these
bills have been unsuccessful, with some arguing that these approaches raise
constitutional and/or policy concerns.15
Unlike the proposals cited above, H.R. 328 uses language similar to that found
in the proposed constitutional amendment, but would instead grant the District of
Columbia a voting member in the House by statute. As noted above, H.J Res. 554
would have provided by constitutional amendment that the District of Columbia be
treated as a state for purposes of representation in the House and Senate, the election
of the President and Vice President, and ratification of amendments of the
Constitution. H.R. 328, is more limited, in that it would only provide that the District
of Columbia be treated as a state for purposes of representation in the House.
Nonetheless, the question is raised as to whether such representation can be achieved
without a constitutional amendment.
10 (...continued)
existence. See CRS Report RL31174, District of Columbia Voting Representation in
Congress: Background, Issues, and Options for the 107th Congress (available from author).
11 U.S. CONST. Article V provides that:
The Congress, whenever two thirds of both Houses shall deem it necessary, shall
propose Amendments to this Constitution, or, on the Application of the
Legislatures of two thirds of the several States, shall call a Convention for
proposing Amendments, which in either Case, shall be valid to all Intents and
Purposes, as Part of this Constitution, when ratified by the Legislatures of three
fourths of the several States or by Conventions in three fourths thereof . . . .
12 See Johnny Killian, George Costello, Kenneth Thomas, United States Constitution:
Analysis and Interpretation 49 (2002 ed.).
13 CRS Report RL31174.
14 Id. at 6-12.
15 Id. at 8-12. D.C. Hearing, supra note 5 at 78 (Testimony of Hon. Kenneth W. Starr).
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As noted previously, a resolution similar to the H.Res. 78 was adopted in the
103rd Congress. It was soon challenged, but it was upheld at both the District Court16
and the Court of Appeals17 level. It would appear, however, that the proposal was
upheld primarily because of the provision calling for a revote when the vote of the
delegates or residents was decisive in the Committee of the Whole.
The Meaning of the Term “State” in the House
Representation Clause
As Congress has never granted the Delegate from the District of Columbia a
vote in the full House or Senate, the constitutionality of such legislation has not been
before the courts. The question of whether the District of Columbia should be
considered a state for purposes of having a vote in the House of Representatives,
however, was considered by a three-judge panel of the United States District Court
of the District of Columbia in the case of Adams v. Clinton.18 In Adams, the panel
examined the issue of whether failure to provide congressional representation for the
District of Columbia violated the Equal Protection Clause. In doing so, it discussed
extensively whether the Constitution, as it stands today, allows such representation.
The court began with a textual analysis of the Constitution. Article I, § 2, clause
1 of the Constitution, the “House Representation 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.
The court noted that, while the phrase “people of the several States” could be
read as meaning all the people of the “United States,” that the use of the phrase later
in the clause and throughout the Article19 makes clear that the right to representation
in Congress is limited to states. This conclusion has been consistently reached by a
variety of other courts,20 and is supported by most, though not all, commentators.21
16 Michel v. Anderson, 817 F. Supp. 126 (D.D.C. 1993), affirmed, Michel v. Anderson, 14
F.3d 623 (D.C. Cir. 1994).
17 Michel v. Anderson, 14 F.3d 623 (D.C. Cir. 1994).
18 90 F. Supp. 2d 35 (D.D.C.2000)(cites to later proceedings omitted).
19 See, e.g., U.S. Const. Art. I, § 2, cl. 2 (each representative shall “be an Inhabitant of that
State” in which he or she is chosen); id. at Art. I, § 2, cl. 3 (representatives shall be
“apportioned among the several States which may be included within this Union”); id.
(“each State shall have at Least one Representative”); id. at art. I, § 2, cl. 4 (the Executive
Authority of the “State” shall fill vacancies); id. at art. I, § 4, cl. 1 (the legislature of “each
State” shall prescribe times, places, and manner of holding elections for representatives).
20 See Igartua de la Rosa v. United States, 32 F.3d 8 (1st Cir. 1994) (holding that United
States citizens in Puerto Rico are not entitled to vote in presidential elections); Attorney
Gen. of Guam v. United States, 738 F.2d 1017 (9th Cir. 1984) (holding that United States
(continued...)
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The plaintiffs in Adams v. Clinton, however, suggested that even if the District of
Columbia is not strictly a “state” under Article I, § 2, clause 1, that the citizens of the
United States could still have representation in Congress.
The plaintiffs in Adams made two arguments: (1) that the District of Columbia,
although not technically a state under the Constitution, should be treated as one for
voting purposes or (2) that District citizens should be allowed to vote in the State of
Maryland, based on their “residual” citizenship in that state. The first argument was
based primarily on cases where the Supreme Court has found that the District of
Columbia was subject to various constitutional provisions despite the fact that such
provisions were textually limited to “states.”22 The second argument is primarily
based on the fact that residents of the land ceded by Maryland continued to vote in
Maryland elections during the period between the Act of July 16, 1790, by which
Virginia and Maryland ceded lands to Congress for formation of the District, and the
Organic Act of 1801,23 under which Congress assumed jurisdiction and provided for
the government of the District.
Whether the District of Columbia can be considered a “state” within the
meaning of a particular constitutional or statutory provision appears to depend upon
the character and aim of the specific provision involved.24 Accordingly, the court in
Adams examined the Constitution’s language, history, and relevant judicial
precedents to determine whether the Constitution allowed for areas which were not
states to have representatives in the House. The court determined that a finding that
the District of Columbia was a state for purposes of congressional representation was
not consistent with any of these criteria.
First, the court indicated that construing the term “state” to include the “District
of Columbia” for purposes of representation would lead to many incongruities in
20 (...continued)
citizens in Guam are not entitled to vote in presidential and vice-presidential elections).
21 See, e.g., Jon M. Van Dyke, The Evolving Legal Relationships Between the United States
and Its U.S. Flag Islands, U. HAW. L. REV. 445, 512 (1992). Even some proponents of D.C.
voting rights generally assume the District of Columbia is not currently a state for purposes
of Article I, § 2, cl. 1. See, e.g., Viet Dinh and Adam H. Charnes, The Authority of Congress
to Enact Legislation to Provide the District of Columbia with Voting Representation in the
House of Representatives 9 (2004) (report submitted to the House Committee on
Government Reform) available at D.C. Vote Website at [http://www.dcvote.org/
pdfs/congress/vietdinh112004.pdf]. But see Peter Raven-Hansen, Congressional
Representation for the District of Columbia: A Constitutional Analysis, 12 Harv. J. on Legis.
167, 168 (1975); Lawrence M. Frankel, National Representation for the District of
Columbia: A Legislative Solution, 139 U. Pa. L. Rev. 1659, 1661 (1991).
22 See, e.g., Loughran v. Loughran, 292 U.S. 216, 228 (1934) (holding that Full Faith and
Credit clause binds “courts of the District . . . equally with courts of the States”); Callan v.
Wilson, 127 U.S. 540, 550 (1888) (holding that the right to trial by jury extends to residents
of District).
23 2 Stat. 103 (1801).
24 District of Columbia v. Carter, 409 U.S. 418, 420 (1973) (application of 42 U.S.C. §
1983).
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other parts of the Constitution. One of several examples that the court noted was that
Article I requires that voters in House elections “have the Qualifications requisite for
the Electors of the most numerous branch of the State Legislature.”25 The District,
as pointed out by the court, did not have a legislature until home rule was passed in
1973, so this rule would have been ineffectual for most of the District’s history.26
This same point can be made regarding the clause providing that the “Times, Places
and Manner of holding Elections for Senators and Representatives shall be prescribed
in each State by the Legislature thereof....”27 Similar issues arise where the
Constitution refers to the Executive Branch of a state.28
The court went on to examine the debates of the Founding Fathers to determine
the understanding of the issue at the time of ratification. The court concluded that
such evidence as exists seems to indicate an understanding that the District would not
have a vote in the Congress.29 Later, when Congress was taking jurisdiction over
land ceded by Maryland and Virginia to form the District, the issue arose again, and
concerns were apparently raised precisely because District residents would lose their
ability to vote.30 Finally, the court noted that other courts which had considered the
question had concluded in dicta or in their holdings that residents of the District do
not have the right to vote for Members of Congress.31
The second argument considered by the court was whether residents of the
District should be permitted to vote in congressional elections through Maryland,
based on a theory of “residual” citizenship in that state. As noted above, this
25 U.S. CONST. art. I, § 2, cl. 1.
26 See District of Columbia Self-Government and Governmental Reorganization Act, P.L.
93-198 (1973).
27 U.S. CONST. art. I, § 4, cl. 1.
28 “When vacancies happen in the Representation from any State, the Executive Authority
thereof shall issue Writs of Election to fill such Vacancies.” U.S. CONST. Art. I, § 2, cl. 4.
29 For instance, at the New York ratifying convention, Thomas Tredwell argued that “[t]he
plan of the federal city, sir, departs from every principle of freedom . . . subjecting the
inhabitants of that district to the exclusive legislation of Congress, in whose appointment
they have no share or vote....” 2 THE DEBATES IN THE SEVERAL STATE
CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION AS
RECOMMENDED BY THE GENERAL CONVENTION AT PHILADELPHIA IN 1787,
at 402 (Jonathan Elliot ed., 2d ed. 1888), reprinted in 3 THE FOUNDERS’
CONSTITUTION 225 (Philip B. Kurland & Ralph Lerner eds., 1987).
30 See, e.g., 10 ANNALS OF CONG. 992 (1801) (remarks of Rep. Smilie) (arguing that
upon assumption of congressional jurisdiction, “the people of the District would be reduced
to the state of subjects, and deprived of their political rights”).
31 Hepburn & Dundas, 6 U.S. (2 Cranch) 445, 452 (1805) (District of Columbia is not a
state for purposes of diversity jurisdiction); Heald v. District of Columbia, 259 U.S. 114,
124 (1922) (stating in dicta that “residents of the district lack the suffrage and have
politically no voice in the expenditure of the money raised by taxation.”); Loughborough v.
Blake, 18 U.S. (5 Wheat.) 317, 324 (1820) (stating in dicta that the District “relinquished
the right of representation, and has adopted the whole body of Congress for its legitimate
government.”)
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argument relied on the fact that residents of the land ceded by Maryland apparently
continued to vote in Maryland elections for a time period after land had been ceded
to Congress. The court noted, however, that essentially the same argument had been
rejected by a previous three-court panel decision of the District of Columbia Court
of Appeals,32 and the Supreme Court had also concluded that former residents of
Maryland had lost their state citizenship upon the separation of the District of
Columbia from the State of Maryland.33
The court continued by setting forth the history of the transfer of lands from
Maryland and Virginia to the federal government under the Act of July 16, 1790.
While conceding that residents of the ceded lands continued to vote in their
respective states, the court suggested that this did not imply that there was an
understanding that they would continue to do so after the District became the seat of
government; it reflected the fact that during this period the seat of government was
still in Philadelphia. Thus, upon the passage of the Organic Act of 1801, Maryland
citizenship of the inhabitants of these lands was extinguished, effectively ending their
rights to vote.
The Power of Congress To Provide Representation
to Political Entities That Are Not States
The argument has been made, however, that the Adams case, which dealt with
whether the Equal Protection Clause compels the granting of a vote to the District of
Columbia, can be distinguished from the instant question — whether Congress has
power to grant the District a voting representative in Congress. Under this argument,
the plenary authority that the Congress has over the District of Columbia under
Article I, section 8, clause 17 (the “District Clause”) represents an independent
source of legislative authority under which Congress can grant the District a voting
Representative.34
Although the question of whether Congress has such power under the District
Clause has not been directly addressed by the courts, the question of whether
Congress can grant the District of Columbia representation under a different
congressional power was also addressed by the United States Court of Appeals for
the District of Columbia. In the case of Michel v. Anderson,35 the court considered
32 Albaugh v. Tawes, 233 F. Supp. 576, 576 (D. Md. 1964), affirmed 379 U.S. 27 (1964) (per
curiam)(residents of D.C. have no right to vote in Maryland).
33 Reily v. Lamar, 6 U.S. (2 Cranch) 344, 356-57 (1805).
34 See Viet Dinh and Adam H. Charnes, supra note 21, at 12-13; D.C. Hearings, supra note
5, at 83 (testimony of Hon. Kenneth W. Starr); Rick Bress and Kristen E. Murray, Latham
& Watkins LLP, Analysis of Congress’s Authority By Statute To Provide D.C. Residents
Voting Representation in the United States House of Representatives and Senate at 7-12
(February 3, 2003)(analysis prepared for Walter Smith, Executive Director of DC Appleseed
Center for Law and Justice).
35 14 F.3d 623 (D.C. Cir. 1994).
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whether the Delegate for the District of Columbia could, by House Rules, be given
a vote in the Committee of the Whole of the House of Representatives.
The primary objection to the rule in question was that, while Delegates have
long been able to vote in Committee, only a Member can vote on the floor of the
House. The district court below had agreed with this argument, stating that:
One principle is basic and beyond dispute. Since the Delegates do not represent
States but only various territorial entities, they may not, consistently with the
Constitution, exercise legislative power (in tandem with the United States
Senate), for such power is constitutionally limited to “Members chosen ... by the
People of the several States.” U.S. Const. art. I, § 8, cl. 1.36
The Court of Appeals also agreed,37 stating that:
[The language of ] Article I, § 2 ... precludes the House from bestowing the
characteristics of membership on someone other than those “chosen every second
Year by the People of the several States.”
Based on these statements, it is unlikely that these courts would have seen merit in
an argument that the Congress could grant the Delegate a vote in the House.
An argument might be made, however, that the decision in Michel v. Anderson
can be distinguished from the instant proposal, because Michel concerned a House
Rule, not a statute. Under this argument, the House in Michel was acting alone under
its power to “Determine the Rules of its Proceedings” pursuant to Article I, section
5.38 Arguably, the court did not consider the issue of whether the Congress as a whole
would have had the authority to provide for representation for the District of
Columbia under the District Clause. Under this line of reasoning, the power of the
Congress over the District represents a broader power than the power of the House
to set its own rules.
At first examination, it is not clear on what basis such a distinction would be
made. The power of the House to determine the Rules of its Proceedings is in and
of itself a very broad power. While the House may not “ignore constitutional
restraints or violate fundamental rights ... within these limitations all matters of
method are open to the determination of the House.... The power to make rules, ...
[w]ithin the limitations suggested, [is] absolute and beyond the challenge of any other
body or tribunal.” In fact, the Supreme Court has found that in some cases, the
36 Michel v. Anderson, 817 F. Supp. 126, 141 (D.D.C. 1993), aff’d 14 F.3d 623 (D.C. Cir.
1994).
37 While accepting the premise that Membership in the House is restricted to representatives
of states, the court found that the Delegate’s vote in the Committee of the Whole was
subject to a revote procedure which made the vote only “symbolic.” 14 F.3d at 632.
38 U.S. CONST., Article I, § 5.
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constitutionality of a House Rule is not subject to review by courts because the
question is a “political,” and not appropriate for judicial review.39
It is true that the power of the Congress over the District of Columbia has been
described as “plenary.” To a large extent, this is because the power of the Congress
over the District blends the limited powers of a national legislature with the broader
powers associated with a local legislature.40 Thus, for instance, some constitutional
restrictions that might bind Congress in the exercise of its national power would not
apply to legislation which is limited to the District of Columbia. For example, when
Congress created local courts for the District of Columbia, it acted pursuant to its
power under the District Clause and thus was not bound by to comply with Article
III requirements which generally apply to federal courts.41 Or, while there are limits
to Congress ability to delegate its legislative authorities, such limitations do not apply
when Congress delegates its local political authority over the District to District
residents.42
It is not clear, however, that the power of Congress at issue in H.R. 328 would
be easily characterized as falling within Congress’ power to legislate under the
District Clause. While the existing practice of allowing District of Columbia
residents to vote for a non-voting Delegate would appear to fall comfortably within
its authority under the District Clause, giving such Delegate a vote in the House
would arguably have an effect that went beyond District of Columbia. Such a change
would not just affect the residents of the District of Columbia, but would also directly
affect the structure of and the exercise of power by Congress. More significantly, if
the Delegate were to cast the decisive vote on an issue of national import, then the
instant legislation could have a significant effect nationwide.
The Supreme Court has directly addressed the issue of whether the District
Clause can be used to legislate in a way that has effects outside of the District of
Columbia. In National Mutual Insurance Co. v. Tidewater Transfer Co.,43 the Court
considered whether Congress could by statute require that federal courts across the
39 Compare Nixon v. United States, 506 U.S. 224, 237 (1993) (issue of whether Senate could
delegate to a committee the task of taking testimony in an impeachment case presented
political question in light of constitutional provision giving Senate “sole power to try
impeachments”) with Powell v. McCormack, 395 U.S. 486, 518-49 (1969) (Court reached
merits after finding that power of House to judge elections, returns, and qualifications of its
Members restricts House to qualifications specified in Constitution).
40 National Mutual Insurance Co. of the District of Columbia v. Tidewater Transfer Co., 337
U.S. 582, 604 (Justices Rutledge and Murphy); District of Columbia v. Thompson, 346 U.S.
100, 108-110 (1953).
41 In the District of Columbia Court Reform and Criminal Procedure Act of 1970, P.L.
91-358, 111, 84 Stat. 475, Congress specifically declared it was acting pursuant to Article
I in creating the Superior Court and the District of Columbia Court of Appeals and pursuant
to Article III in continuing the United States District Court and the United States Court of
Appeals for the District of Columbia. The status of the Article I courts were sustained in
Palmore v. United States, 411 U.S. 389 (1973).
42 District of Columbia v. Thompson, 346 U.S. 100, 106-09 (1953).
43 337 U.S. 582 (1949).
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country consider cases brought by District of Columbia residents under federal
diversity jurisdiction. This case has been heavily relied upon by various
commentators as supporting the proposed legislation.44
The Significance of the Case of National Mutual
Insurance Co. v. Tidewater Transfer Co.
The Tidewater Transfer Co. case appears to provide a highly relevant
comparison to the instant proposal. As with the instant proposal, the congressional
statute in question was intended to extend a right to District of Columbia residents
that was only provided to citizens of “states.” In 1805, Chief Justice John Marshall,
in the case of Hepburn v. Ellzey,45 had authored a unanimous opinion holding that
federal diversity jurisdiction, which exists “between citizens of different states,” did
not include suits where one of the parties was from the District of Columbia.46
Despite this ruling, Congress enacted a statute extending federal diversity jurisdiction
to cases where a party was from the District.47 The Court in Tidewater Transfer Co.
upheld this statute against a constitutional challenge, with a three-judge plurality
holding that Congress, acting pursuant to the District Clause, could lawfully expand
federal jurisdiction beyond the bounds of Article III.48
On closer examination, however, the Tidewater Transfer Co. case may not
support the constitutionality of the instant proposal. Of primary concern is that this
was a decision where no one opinion commanded a majority of the Justices. Justice
Jackson’s opinion (the Jackson plurality), joined by Justices Black and Burton, held
that District of Columbia residents could seek diversity jurisdiction based on
Congress exercising power under the District Clause. Justice Rutledge’s opinion (the
Rutledge concurrence) joined by Justice Murphy, argued that the provision of Article
III that provides for judicial authority over cases between citizens of different states,
the “Diversity Clause,”49 permits such law suits, even absent congressional
authorization. Justice Vinson’s opinion (the Vinson dissent), joined by Justice
Douglas, and Justice Frankfurter’s opinion (the Frankfurter dissent), joined by Justice
Reed, would have found that neither the Diversity Clause nor the District Clause
provided the basis for such jurisdiction.
44 See, e.g., Viet Dinh and Adam H. Charnes, supra note 21, at 11-13; Rick Bress and
Kristen E. Murray, supra3
note 34, at 9-12.
45 6 U.S. (2 Cranch) 445 (1805).
46 Id. at 452. Although, strictly speaking, the opinion was addressing statutory language in
Act of 1789, the language was so was so similar to the language of the Constitution that
it was an interpretation of the latter which was essential to the Court’s reasoning. See
Tidewater Transfer Co., 337 U.S. at 586.
47 Act of April 20, 1940, c. 117, 54 Stat. 143.
48 See Tidewater Transfer Co., 337 U.S. at 600 (plurality opinion of Jackson, J.).
49 U.S. Const., Art. III, § 2, cl. 1 provides that “The Judicial Power shall extend to...
Controversies between two or more States....”
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Of further concern is that those concurring Justices who did not join in the three-
judge plurality opinion were not silent on the issue of Congress’ power under the
District Clause. Consequently, it is possible that a majority of the Justices would
have reached a differing result on the breadth of Congress’ power. In addition, it
would appear that even the three-judge plurality might have distinguished the instant
proposal from the legislation which was at issue in the Tidewater Transfer Co.
Thus, a closer analysis of this case should consider the different opinions, how
the Justices framed the questions before them, and then the reasoning they used to
resolve the issue. To help understand the issues raised by this case and by the instant
bill, this analysis should focus on four different issues: 1) whether the District of
Columbia is a “state” for purposes of diversity jurisdiction; 2) whether the District
of Columbia is a “state” for purposes of voting representation; 3) whether Congress
can grant diversity jurisdiction under the District Clause; and 4) whether Congress
can provide for a voting Delegate under the District Clause.
Whether the District of Columbia is a “State” for Purposes of
Diversity Jurisdiction
As noted, the Court has held since the 1805 case of Hepburn v. Ellzey50 that
federal diversity jurisdiction under Article III does not include suits where one of the
parties was from the District of Columbia.51 Presaging the Adams v. Clinton52 case
by nearly two centuries, this unanimous decision briefly considered the use of the
term “state” throughout the Constitution. The Chief Justice noted that the plain
meaning of the term “state” in the Constitution did not include the District of
Columbia, and further noted that this was the term used to determine representation
in the Senate, the House, and the number of Presidential Electors. As there was little
doubt that state did not include the District of Columbia in those instances, the Court
found no reason that the term should take on a different meaning for purposes of
diversity.
In the Tidewater Transfer Co. case, however, the Rutledge concurrence took
issue with Hepburn. Justice Rutledge noted that the term “state” had been found in
some cases to include the District of Columbia. The main thrust of the opinion was
that the use of the term state in the Constitution occurred in two different contexts:
1) in provisions relating to the organization and structure of the political departments
of the government, and 2) where it was used regarding the civil rights of citizens.53
The Rutledge concurrence argued that the latter uses of the term should be considered
more expansively in the latter case than the former. For instance, the Court noted that
the Sixth Amendment, which provides that “In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial, by an impartial jury of the State ...
50 6 U.S. (2 Cranch) 445 (1805).
51 Id. at 452.
52 90 F. Supp. 2d 35 (D.D.C.2000), affirmed sub nom. Alexander v. Mineta, 531 U.S. 940
(2000).
53 337 U.S. at 619 (Rutledge, J, concurring).
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wherein the crime shall have been committed ...,” had been held to apply to the
citizens of the District of Columbia.54
Next, the Rutledge concurrence sought to establish that of these two categories,
access to the federal courts under diversity jurisdiction fell into the latter. The
opinion suggested that the exclusion of the District of Columbia from diversity
jurisdiction served no historical purpose, and that the inclusion of the District would
be consistent with the purposes of the provision. The opinion essentially rested on
the premise that such a distinction between the citizens of the District of Columbia
and the states made no sense: “I cannot believe that the Framers intended to impose
so purposeless and indefensible a discrimination, although they may have been guilty
of understandable oversight in not providing explicitly against it.”55
The opinion of the these two Justices, however, was not shared by any of the
other seven Justices of the Court.56 The Jackson plurality opinion, for instance,
specifically rejected such an interpretation. That opinion noted that while one word
may be capable of different meanings, that such “such inconsistency in a single
instrument is to be implied only where the context clearly requires it.”57 The Jackson
plurality found no evidence that the Founding Fathers gave any thought to the issue
of the District of Columbia and diversity jurisdiction, and that if they had that they
would not have included the District by use of the term “state.” Nor did the Court
find this oversight particularly surprising, as the District of Columbia was still a
theoretical political entity when the Constitution was ratified, and its nature and
organization had not yet been established.
The Vinson dissent summarily dismissed the argument that the Hepburn v.
Ellzey decision be overruled.58 The Frankfurter dissent argued vehemently that the
54 The Rutledge opinion conceded that Court’s initial determination that District residents
were entitled to a jury trial in criminal cases in Callan v. Wilson, 127 U.S. 540 (1888) rested
in large measure on the more inclusive language of Article III, § 2: “The Trial of all Crimes,
except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State
where the said Crimes shall have been committed; but when not committed within any State,
the Trial shall be at such Place or Places as the Congress may by Law have directed.” But
the Court noted that cases relied upon by Callan were based at least in part on the Sixth
Amendment. “In Reynolds v. United States, 98 U.S. 145, 154, it was taken for granted that
the Sixth Amendment of the Constitution secured to the people of the Territories the right
of trial by jury in criminal prosecutions....” Callan, 127 U.S. at 550.
55 337. at 625.
56 Although not addressed by the any opinion of the Court, a separate argument has been
made that the extension of diversity jurisdiction to the District of Columbia could also have
been made under the Privileges and Immunities Clause. See James E. Pfander, The
Tidewater Problem: Article III and Constitutional Change, 79 Notre Dame L. Rev. 1925
(2004).
57 Id. at 587.
58 “That it was not the specific intent of the framers to extend diversity jurisdiction to suits
between citizens of the District of Columbia and the States seems to be conceded. One well
versed in that subject, writing for the Court within a few years of adoption of the
(continued...)
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use of the term “state” in the clause at issue was one of the terms in the Constitution
least amenable to ambiguous interpretation. “The precision which characterizes these
portions of Article III is in striking contrast to the imprecision of so many other
provisions of the Constitution dealing with other very vital aspects of government.”59
This, combined with knowledge of the distrust that the Founding Fathers had towards
the federal judiciary, left Justice Frankfurter with little interest in entertaining
arguments to the contrary.
Whether the District of Columbia is a “State” for Purposes of
Representation
While there has been some academic commentary suggesting that the term
“state” could be construed more broadly for purposes of representation than is
currently the case,60 there is little support for this proposition in case law. Starting
with Chief Justice Marshall in the Hepburn case, and as recently as Adams v. Clinton
and Michel v. Anderson, the Supreme Court and lower courts have generally started
with the basic presumption that the use of the term “state” for purposes of
representation in the House did not include the District of Columbia. In fact, in
Hepburn, Chief Justice Marshall had referred to the “plain use” of the term “state”
in the clauses regarding representation as the benchmark to interpret other clauses
using the phrase.61
The opinions of the Justices in Tidewater Transfer Co. appear to be no different.
As noted above, seven of the nine Justices in that case accepted the reasoning of the
Hepburn case as regards diversity jurisdiction, and would certainly have been even
less likely to accept the argument that the District of Columbia should be considered
a state for purposes of the House of Representatives. It also seems likely that the
Justices associated with the Rutledge concurrence would have similarly rejected such
an interpretation. As noted, that opinion suggested that the error in Hepburn was the
failure to distinguish between how the term “state” should be interpreted when used
in the context of the distribution of power among political structures and how it
58 (...continued)
Constitution, so held. The question is, then, whether this is one of those sections of the
Constitution to which time and experience were intended to give content, or a provision
concerned solely with the mechanics of government. I think there can be little doubt but that
it was the latter. That we would now write the section differently seems hardly a sufficient
justification for an interpretation admittedly inconsonant with the intent of the framers. Ours
is not an amendatory function.” Id. at 645 (Vinson, J., dissenting).
59 Id. at 646 (Frankfurter, J., dissenting).
60 See Peter Raven-Hansen, Congressional Representation for the District of Columbia: A
Constitutional Analysis, 12 Harv. J. on Legis. 167, 168 (1975); Lawrence M. Frankel,
National Representation for the District of Columbia: A Legislative Solution, 139 U. Pa. L.
Rev. 1659, 1661 (1991).
61 6 U.S. at 452 (“When the same term which has been used plainly in this limited sense in
the articles respecting the legislative and executive departments, is also employed in that
which respects the judicial department, it must be understood as retaining the sense
originally given to it”).
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should be interpreted when it is used in relation to the civil rights of citizens.62
Although Justice Rutledge found that a restrictive interpretation of the term state was
unnecessarily narrow in the context of diversity jurisdiction, there is no indication
that the Justice would have disputed the “plain use” of the term “state” in the context
of representation for the District in Congress.
Whether Congress Has the Authority Under the District
Clause To Extend Diversity Jurisdiction to the District of
Columbia
The Jackson plurality opinion considered whether, despite the Court’s holding
in Hepburn, Congress, by utilizing its power under the District Clause, could evade
the apparent limitations of Article III on diversity jurisdiction. The plurality noted
that the District Clause had not been addressed in Chief Justice Marshall’s opinion,
and that the Chief Justice had ended his opinion by noting that the matter was a
subject for “legislative not for judicial consideration.”63 While admitting that it
would be “speculation” to suggest that this quote established that Congress could use
its statutory authority rather than proceed by constitutional amendment, the Court
next considered whether such power did in fact exist.
As noted previously, the power of Congress over the District includes the power
to create local courts not subject to Article III restrictions. The plurality suggested
that there would be little objection to establishing a federal court in the District of
Columbia to hear diversity jurisdiction. Instead, the concerns arose because the
statute in question would operate outside of the geographical confines of the District.
Further, the statute would require that Article III courts be tasked with functions
associated with an Article I court.64
The Jackson plurality had little trouble assigning the tasks of an Article I court
to an Article III court, suggesting that such assignments had been approved in the
past, including in the District of Columbia.65 A more difficult question was the
exercise of diversity jurisdiction by federal courts outside of the geographical
confines of the District. While noting that the Congress’s power over the District was
not strictly limited by territory, it admitted that the power could not be used to gain
control over subjects over which there had been no separate delegation of power.66
62 The two judges noted a distinction to be made between constitutional clauses “affecting
civil rights of citizens,” such as the right to a jury trial, and “the purely political clauses,”
such as “the requirements that Members of the House of Representatives be chosen by the
people of the several states.” Id. at 619-623 (Rutledge, J., concurring). See Adams v.
Clinton, 90 F. Supp. 2nd at 55.
63 Hepburn, 6 U.S. at 453.
64 337 U.S. at 509.
65 See O’Donoghue v. United States, 289 U.S. 516 (1933) (holding that Article III District
of Columbia courts can exercise judicial power conferred by Congress pursuant to Art. I).
66 337 U.S. at 602.
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Thus, the question arose as to whether a separate power beyond the District Clause
was needed here.
Essentially, the Court held that the end that the Congress sought (establishing
a court to hear diversity cases involving District of Columbia citizens) was
permissible under the District Clause, and that the choice of means that the Congress
employed (authorizing such hearings in federal courts outside of the District) was not
explicitly forbidden. As a result, the Court held that it should defer to the opinions
of Congress when Congress was deciding how to perform a function that is within
its power.67
It should be noted that even the plurality opinion felt it necessary to place this
extension in a larger context, emphasizing the relative insignificance of allowing
diversity cases to be heard in federal courts outside of the District. The Court noted
that the issue did not affect “the mechanics of administering justice,” nor the
“extension or a denial of any fundamental right or immunity which goes to make up
our freedoms.” Rather, the issue only involved whether a plaintiff who sued a party
from another state could require that the case be decided in a convenient forum.68
The Rutledge concurrence, on the other hand, explicitly rejected the reasoning
of the plurality, finding that the Congress clearly did not have the authority to
authorize even this relatively modest authority to District of Columbia citizens.69 In
fact, the concurring opinion rejected the entire approach of the plurality as
unworkable, arguing that it would allow any limitations on Article III courts to be
disregarded if Congress purported to be acting under the authorization of some other
constitutional power.70
The Vinson dissent and the Frankfurter dissent also rejected the reasoning of the
plurality as regards Congress power to grant diversity to the District, citing both
Article III limitations on federal court and separation of powers. The Vinson dissent
argued that the question as to whether Congress could use its legislative authority to
evade the limitations of Article III had already been reached in cases regarding
whether the Congress could require federal courts to hear cases where there was no
case or controversy.71 The Frankfurter dissent made similar points, and also noted
the reluctance by which the states had even agreed to the establishment of diversity
67 Id. at 602-03.
68 Id. at 585.
69 Id. at 604-606 (Rutledge, J., concurring)(“strongly” dissenting from the suggestion that
Congress could use Article I powers to expand the limitations of Article III jurisdiction).
70 “The Constitution is not so self-contradictory. Nor are its limitations to be so easily
evaded. The very essence of the problem is whether the Constitution meant to cut out from
the diversity jurisdiction of courts created under Article III suits brought by or against
citizens of the District of Columbia. That question is not answered by saying in one breath
that it did and in the next that it did not.” Id. at 605 (Rutledge, J, concurring).
71 Id. at 628-31 (Vinson, J., dissenting). See, e.g., Keller v. Potomac Electric Co., 261 U.S.
428 (1923).
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jurisdiction.72 Thus, considering both the dissents and the concurrence, six Justices
rejected the plurality’s expansive interpretation of the District Clause.
Whether Congress Has the Authority Under the District
Clause To Extend House Representation to the District of
Columbia
The positions of the various Justices on the question of whether Congress can
grant diversity jurisdiction for District of Columbia residents would seem to also
inform the question as to whether such Justices would have supported the granting
of House representation to District citizens. As noted, six Justices explicitly rejected
the extension of diversity jurisdiction using Congress’ power under the District
Clause. It is unlikely that the Justices in question would have rejected diversity
jurisdiction for District of Columbia residents, but would then approve voting
representation for those same residents. The recurring theme of both the Hepburn
and Tidewater decisions was that the limitation of House representation to the states
was the least controversial aspect of the Constitution, and that the plain meaning of
the term “state” in regards to the organization of the federal political structures was
essentially unquestioned.
Consequently, only three of the Justices in the Tidewater might arguably have
supported the doctrine that the Congress’s power over the District of Columbia
would allow extension of representation to its citizens. However, even this
conclusion is suspect. As noted, the plurality opinion took pains to note the limited
impact of their holding — parties in diversity suits with residents of the District of
Columbia would have a more convenient forum to bring a law suit. As noted, the
plurality specifically limited the scope of its decision to cases which did not involve
an extension of any fundamental right.73 Arguably, granting the Delegate a vote in
the House does involve such an extension, and would thus be distinguished.
These three Justices might also have had other concerns that would weigh
against such an extension of the holding in Tidewater Transfer Co. The Act before
the Justices in that case did not affect just the District of Columbia, but also extended
diversity jurisdiction to the territories of the United States, including the then-
territories of Hawaii and Alaska.74 Although the question of diversity jurisdiction
over residents of the territories was not directly before the Court, subsequent lower
court decisions75 have found that the reasoning of the Tidewater Transfer Co. case
supported the extension of diversity jurisdiction to the territories, albeit under the
“Territory Clause.”76
72 Id. at 646-55 (Frankfurter, J., dissenting).
73 Id.. at 585.
74 Id. at 584-585.
75 See, e.g., Detrea v. Lions Building Corporation, 234 F.2d 596 (1956).
76 U.S. Const. Art. IV, § 3, cl. 2 provides:
(continued...)
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Thus, a concern that the plurality Justices might have had about the instant
proposal would be whether its approval would also validate an extension of House
representation to other political entities, such as the territories. While the extension
of diversity jurisdiction to residents of territories has been relatively uncontroversial,
a decision to grant a voting Delegate to the territories might not. Under the Territory
Clause, the Congress has plenary power over the territories of American Samoa,
Guam, the Virgin Islands, Puerto Rico, and the Commonwealth of the Northern
Marianas Islands. Thus, extending the reasoning of the Tidewater Transfer Co. case
to voting representation might arguably allow each of these territories to seek
representation in the House.77
Although an analysis of the constitutionality of such an extension goes beyond
the scope of this report, providing House representation to the territories would
clearly represent a significant change to the national political structure. Of particular
note would be the relatively small number of voters in some of these territories. In
particular, granting representation to American Samoa, with a population of about
58,000,78 most of whom are not citizens of the United States,79 would appear to
depart significantly from the existing make-up of the House.
Similarly, a holding that the District could be treated as a state for purposes of
representation would arguably also support a finding that the District could be treated
as a state for the places in the Constitution which deal with other aspects of the
national political structure. Under this reasoning, Congress could arguably authorize
the District of Columbia to have Senators, Presidential Electors,80 and perhaps even
the power to ratify Amendments to the Constitution.81
76 (...continued)
The Congress shall have Power to dispose of and make all needful Rules and
Regulations respecting the Territory or other Property belonging to the United
States; and nothing in this Constitution shall be so construed as to Prejudice any
Claims of the United States, or of any particular State.
77 But see Tidewater Transfer Co., 337 U.S. at 639 (Vinson, J., dissenting)(noting
differences between Congressional regulation of local courts under the District Clause and
the Territorial Clause.)
78 See CIA World Fact book, [https://www.cia.gov/cia/publications/factbook/index.html].
79 See Arnold Leibowitz, DEFINING STATUS: A COMPREHENSIVE ANALYSIS OF UNITED
STATES TERRITORIAL RELATIONS (1989) at 41.
80 This authority, it should be noted, has already been granted, but it was done by
Constitutional Amendment. See U.S. CONST. Amend. XXIII.
81 U.S. CONST. Art. V.
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The Significance of Limiting Delegate Voting to the
Committee of the Whole
As the above discussion is directed at the full House, the question can be raised
as to whether it should also apply to the Committee of the Whole. The Committee
of the Whole is not provided for in the Constitution, and the nature of the Committee
of the Whole appears to have changed over time. Established in 1789, the Committee
of the Whole appears to be derived from English Parliamentary practices. It was
originally intended as a procedural device to exclude the Speaker of the House of
Commons, an ally of the King, from observing the proceedings of the House.82 Since
that time, the Committee has evolved into a forum where debate and discussion can
occur under procedures more flexible than those otherwise utilized by the House.
At present, the Committee of the Whole is simply the Full House in another
form.83 Every legislator is a member of the Committee, with full authority to debate
and vote on all issues.84 By resolving into the Committee of the Whole, the House
invokes a variety of procedural devices which speed up floor action. Instead of the
normal quorum of one-half of the legislators in the House, which is generally more
than 200 legislators, the Committee of the Whole only requires a quorum of 100
members. In addition, amendments to bills are debated under a five-minute rule
rather than the one hour rule. Finally, it is in order to close debate on sections of bills
by unanimous consent or a majority of members present.85
Assuming that the Delegate for the District of Columbia could not cast a vote
in the full House, a separate question arises as to whether, as provided for by the
House Rules amended by H.Res. 78, the Delegate (along with the territorial
delegates) could cast a vote in the Committee of the Whole, subject to a revote when
such a vote is determinative. Under Article I of the Constitution, all legislative
authority for the United States is to be vested in the Senate and the House of
Representatives,86 and under §2 of that Article, the House of Representatives shall
be composed of “Members” chosen in conformity with the qualifications and
requirements of the Constitution. As the Delegate for the District of Columbia is not
a Member for purposes of Article § 2,87 the question arises as to the basis on which
delegate could vote in the Committee of the Whole.
The Constitution does not provide for representatives of the District of
Columbia or the territories such as the delegate for the District of Columbia or the
resident commissioners or delegates for the territories; nor does it appear that these
delegates and resident commissioners are required to meet the qualifications or
82 Alexander, De Alva Stanwood, HISTORY AND PROCEDURE OF THE HOUSE OF
REPRESENTATIVES 257 (1916).
83 W. Oleszak, Congressional Procedures and the Policy Process 128 (1984).
84 Id.
85 Id. at 129.
86 U.S. Const. Art. I, § 1.
87 Michel v. Anderson, 14 F.3d 623, 630 (D.C. Cir. 1994).
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electoral requirements required of Members of Congress.88 Consequently, the
Constitution does not appear to provide the basis for a delegate to exercise the power
of Members under the Constitution.89 However, the Constitution does not specify
whether or not all legislative activities which a Member might engage in are
restricted to those Members, thus leaving open the possibility that a delegate may
engage in some legislative activities which are not limited to Members.
Historically, delegates have engaged in a number of legislative activities which,
although preliminary to final passage of legislation and thus arguably advisory,
appear to involve the exercise of some modicum of legislative authority. These
activities have included introducing legislation,90 serving on standing congressional
committees, voting on these committees,91 and debating on the floor of the house.
The line between what legislative activities are limited to Members of Congress and
those which are not, however, is not well developed.92
As noted previously, the question of whether a vote in the Committee of the
Whole, subject to a revote, is advisory in nature was addressed by the United States
Court of Appeals in Michel v. Anderson.93 In Michel, the court noted the long-
standing traditions of allowing territorial delegates to vote in standing committees.94
However, despite a variety of arguments that the procedures of Committee of the
Whole made it constitutionally distinct, the court also found that the operational
similarities between the Committee and the whole House were significant enough to
raise constitutional issues.95 Nonetheless, because the revote provision rendered the
vote largely “symbolic,” the court held that “we do not think this minor addition to
the office of delegates has constitutional significance.”96
88 For example, the number of persons who may be represented by each Member must be
approximately equal with the number represented by other Members. Wesberry v. Sanders,
376 U.S. 1 (1962). The number of persons represented by the District of Columbia delegate
is not established in relationship to this number; rather, the delegate represents the entire
population of the District of Columbia.
89 Michel v. Anderson, 14 F.3d 623, 630 (D.C. Cir. 1994).
90 See, e.g., H.R. 4718, 102d Cong., 2nd Sess. (a bill submitted by Delegate Eleanor Horton
to provide for admission of the State of New Columbia into the Union). Cosponsors are
apparently not required. See id.
91 Rule XII, Rules of the House of Representatives.
92 Although a delegate may currently introduce legislation on the House floor, and may
engage in floor debate which could ultimately influence how courts interpret a piece of
legislation, there appears to have been no clear constitutional basis distinguishing these
particular powers from others not granted. For instance, “preliminary” votes in the House,
such as on the adoption of Rules or voting to advice conferees, have historically been denied
delegates, although these votes are not directly related to the passage of final legislation.
93 14 F.3d 623 (D.C. Cir. 1994).
94 Id. at 631.
95 Id. at 632.
96 Id.
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Conclusion
In sum, it is difficult to identify either constitutional text or existing case law
which would directly support the allocation by Congress of the power to vote in the
full House on the District of Columbia Delegate. Further, that case law which does
exist would seem to indicate that not only is the District of Columbia not a “state”
for purposes of representation, but that congressional power over the District of
Columbia does not represent a sufficient power to grant congressional representation.
In particular, at least six of the Justices who participated in what appears to be
the most relevant Supreme Court case, National Mutual Insurance Co. of the District
of Columbia v. Tidewater Transfer Co., authored opinions rejecting the proposition
that Congress’ power under the District Clause was sufficient to effectuate structural
changes to the political structures of the federal government. Further, the remaining
three judges, who found that the Congress could grant diversity jurisdiction to
District of Columbia citizens despite the lack of such jurisdiction Article III,
specifically limited their opinion to instances where there was no extension of any
fundamental right. To the extent that providing District residents with House
representation could be characterized as such a right, then one could argue that all
nine Justices would have found the instant proposal to be unconstitutional.
Although not beyond question, it would appear likely that the Congress does not
have authority to grant voting representation in the House of Representatives to the
District of Columbia as contemplated by H.R. 328. On the other hand, because the
provisions of H.Res. 78 allowing Delegates a vote in the Committee of the Whole
would be largely symbolic, these amendments to the House Rules are likely to pass
constitutional muster.