The Constitutionality of Awarding the Delegate for the District of Columbia a Vote in the House of Representatives or the Committee of the Whole
The Constitutionality of Awarding the Delegate for
the District of Columbia a Vote in the House of
Representatives or the Committee of the Whole
Updated October 25, 2007
Kenneth R. Thomas
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
A variety of proposals have been made in the 110th Congress regarding granting
the Delegate of the District of Columbia voting rights in the House. On January 24,
2007, the House approved H.Res. 78, which changed the House Rules to allow the
D.C. 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. A bill introduced by Delegate Eleanor Holmes Norton, H.R. 1905, the
District of Columbia House Voting Rights Act of 2007, would give the District of
Columbia Delegate a vote in the Full House. On April 19, 2007, H.R. 1905 passed
the House by a vote of 241 to 177. A similar bill, S. 1257, was considered by the
Senate on September 18, but a motion to invoke cloture failed by a vote of 57-42.
These two approaches appear to raise separate, but related, constitutional issues.
As to H.R. 1905, 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
Justices, 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 or substantially disturb the political balance between
the federal government and the states. To the extent that H.R. 1905 would be found
to meet these distinguishing criteria, 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 and 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. In conclusion, 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. 1905. 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.
Proposed Legislation and Rule Change.................................1
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
Whether Congress Has the Authority Under the District Clause
to Extend Diversity Jurisdiction to the District
Whether Congress Has the Authority Under the District Clause
to Extend House Representation to the District
The Significance of Limiting Delegate Voting to the Committee
of the Whole.................................................18
The Constitutionality of Awarding
the Delegate for the District of Columbia
a Vote in the House of Representatives
or the Committee of the Whole
Proposed Legislation and Rule Change
A variety of proposals have been made in the 110th Congress regarding granting
the Delegate of the District of Columbia voting rights in the House. On January 19,
2007, Representative Hoyer introduced H.Res. 78,1 which proposed House Rule
changes allowing the District of Columbia delegate (in addition to the Resident
Commissioner of Puerto Rico2 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.Res. 78 was approved by the House on3
January 24, 2007. Then, on April 19, 2007, Congress passed a bill introduced by
Delegate Eleanor Holmes Norton, H.R. 1905,4 the District of Columbia House
Voting Rights Act of 2007, which would grant the District a voting representative in
the full House.5 A similar bill, S. 1257,6 was considered by the Senate on September
Under H.R. 1905, the House would be expanded by two Members to a total of
voting Member representing the District of Columbia. Although it is generally
1 110th Cong, 1st Sess.
2 Although Puerto Rico is represented by a “Resident Commissioner,” for purposes of this
report, such representative will be referred to as a delegate.
3 Congressional Record, daily edition, vol. 153, January 24, 2007, p. H912.
4 110th Cong, 1st Sess.
5 Congressional Record, daily edition, vol. 153, April 19, 2007, pp. H3577-78. The bill
passed by a vote of 241 to 177. A predecessor of this bill, H.R. 1433, was reported out of
the House Oversight and Government Reform Committee on March 13, 2007, by a vote of
24-5, and two days later was reported out of the House Judiciary Committee by a vote of
21-13. On March 22, 2007, the House began floor consideration of the bill, but postponed
a vote after an amendment was proposed that would have repealed the city’s gun control
6 110th Congress, 1st Sess.
7 The second position would be allocated in accordance with the 2000 census data and
existing federal law. H.R. 1905, § 3(b). It would appear that, if the bill was passed today,
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. 1905 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.”8 The proposal also provides that
regardless of existing federal law regarding apportionment,9 “the District of
Columbia may not receive more than one member under any reapportionment of
members.”10 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. 1905
would be treated as invalid.11
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.
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
2006, before the Subcommittee on the Constitution, H.R. 5388, 109 Cong., 2 Sess. 2
(statement of Rep. Chabot). H.R. 1905, §3(c)(3) provides that such position would be
allocated as an at-large seat. It should be noted that no such provision is contained in S.
8 H.R. 1905, § 2(a).
9 See 2 U.S.C. §2a.
10 H.R. 1905, § 2(b).
11 H.R. 1905, § 4.
Residents of the District of Columbia have never had more than limited12
representation in Congress. Over the years, however, efforts have been made to
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, the District constituting the seat of government of
the United States shall be treated as though it were a State.”14 The Amendment was
ratified by 16 states, but expired in 1985 without winning the support of the requisite
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 in16
Maryland for their representatives to the Senate and House. Efforts to pass these
bills have been unsuccessful, with some arguing that these approaches raise17
constitutional and/or policy concerns.
Unlike the proposals cited above, H.R. 1905 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
12 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 only a short portion
of its over 200-year existence. See CRS Report RL33830, District of Columbia Voting
Representation in Congress: An Analysis of Legislative Proposals, by Eugene Boyd.
13 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....
14 See Johnny H. Killian, George Costello, Kenneth R. Thomas, United States Constitution:
Analysis and Interpretation 49 (2002 ed.).
15 CRS Report RL33830, District of Columbia Voting Representation in Congress: An
Analysis of Legislative Proposals, by Eugene Boyd, supra note 12, at 6.
16 Id. at 6-12.
17 Id. at 8-12. D.C. Hearing, supra note 7 at 78 (Testimony of Hon. Kenneth W. Starr).
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. 1905, 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.
As noted previously, a resolution similar to the H.Res. 78 was adopted in the
and the Court of Appeals19 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.20 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 later21
in the clause and throughout the article makes clear that the right to representation
18 Michel v. Anderson, 817 F. Supp. 126 (D.D.C. 1993), affirmed, Michel v. Anderson, 14
F.3d 623 (D.C. Cir. 1994).
19 Michel v. Anderson, 14 F.3d 623 (D.C. Cir. 1994).
20 90 F. Supp. 2d 35 (D.D.C.2000), affirmed sub nom. Alexander v. Mineta, 531 U.S. 940
21 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.
in Congress is limited to states. This conclusion has been consistently reached by a
variety of other courts,22 and is supported by most, though not all, commentators.23
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.”24 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 1801,25 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.26 Accordingly, the court in
(“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).
22 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); Attorneyth
Gen. of Guam v. United States, 738 F.2d 1017 (9 Cir. 1984) (holding that United States
citizens in Guam are not entitled to vote in presidential and vice-presidential elections).
23 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).
24 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
25 2 Stat. 103 (1801).
26 District of Columbia v. Carter, 409 U.S. 418, 420 (1973) (application of 42 U.S.C. §
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
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.”27 The District,
as pointed out by the court, did not have a legislature until home rule was passed in
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....”29 Similar issues arise where the
Constitution refers to the Executive Branch of a state.30
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.31 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.32 Finally, the court noted that other courts which had considered the
27 U.S. CONST. art. I, § 2, cl. 1.
28 See District of Columbia Self-Government and Governmental Reorganization Act, P.L.
29 U.S. CONST. art. I, § 4, cl. 1.
30 “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.
31 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).
32 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”).
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.33
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
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,34 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.35
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
33 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
34 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).
35 Reily v. Lamar, 6 U.S. (2 Cranch) 344, 356-57 (1805).
source of legislative authority under which Congress can grant the District a voting
R epresent at i v e. 36
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,37 the court considered
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 the38
People of the several States.” U.S. Const. art. I, § 8, cl. 1.
The Court of Appeals also agreed,39 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
36 See Viet Dinh and Adam H. Charnes, supra note 23, at 12-13; D.C. Hearing, supra note
7, 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).
37 14 F.3d 623 (D.C. Cir. 1994).
38 Michel v. Anderson, 817 F. Supp. 126, 141 (D.D.C. 1993), aff’d 14 F.3d 623 (D.C. Cir.
39 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.
5.40 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
constitutionality of a House Rule is not subject to review by courts because the
question is a “political,” and not appropriate for judicial review.41
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.42 Thus, 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.43 Or, while there are limits to
Congress’s ability to delegate its legislative authorities, such limitations do not apply
when Congress delegates its local political authority over the District to District
It is not clear, however, that the power of Congress at issue in H.R. 1905 would
be easily characterized as falling within Congress’s power to legislate under the
40 U.S. CONST., Article I, § 5.
41 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).
42 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.
43 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).
44 District of Columbia v. Thompson, 346 U.S. 100, 106-09 (1953).
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 the 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.,45 the Court
considered whether Congress could by statute require that federal courts across the
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.46
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,47 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.48
Despite this ruling, Congress enacted a statute extending federal diversity jurisdiction
to cases where a party was from the District.49 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 expand50
federal jurisdiction beyond the bounds of Article III.
45 337 U.S. 582 (1949).
46 See, e.g., Viet Dinh and Adam H. Charnes, supra note 23, at 11-13; Rick Bress and
Kristen E. Murray, supra note 36, at 9-12. But see, D.C. Hearing, supra note 7, at 61
(statement of Professor Jonathan Turley).
47 6 U.S. (2 Cranch) 445 (1805).
48 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.
49 Act of April 20, 1940, c. 117, 54 Stat. 143.
50 See Tidewater Transfer Co., 337 U.S. at 600 (plurality opinion of Jackson, J.).
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,”51 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.
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’s 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’s 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. Ellzey52 that
federal diversity jurisdiction under Article III does not include suits where one of the5354
parties was from the District of Columbia. Presaging the Adams v. Clinton 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
51 U.S. Const., art. III, § 2, cl. 1 provides that “The Judicial Power shall extend to ...
Controversies between two or more States....”
52 6 U.S. (2 Cranch) 445 (1805).
53 Id. at 452.
54 90 F. Supp. 2d 35 (D.D.C.2000), affirmed sub nom., Alexander v. Mineta, 531 U.S. 940
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
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.55
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 ...
wherein the crime shall have been committed ...,” had been held to apply to the
citizens of the District of Columbia.56
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.”57
The opinion of the these two Justices, however, was not shared by any of the
other seven Justices of the Court.58 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
55 337 U.S. at 619 (Rutledge, J. concurring).
56 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.
57 337 U.S. at 625.
58 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
instrument is to be implied only where the context clearly requires it.”59 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.60 The Frankfurter dissent argued vehemently that the
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.”61
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 is62
currently the case, 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”
59 Id. at 587.
60 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 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).
61 Id. at 646 (Frankfurter, J., dissenting).
62 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).
in the clauses regarding representation as the benchmark to interpret other clauses
using the phrase.63
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
should be interpreted when it is used in relation to the civil rights of citizens.64
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.”65 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.
63 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”).
64 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.nd
Clinton, 90 F. Supp. 2 at 55.
65 Hepburn, 6 U.S. at 453.
Further, the statute would require that Article III courts be tasked with functions
associated with an Article I court.66
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.67 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.68
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
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” or involve the
“extension or a denial of any fundamental right or immunity which goes to make up
our freedoms,” nor did the legislation “substantially disturb the balance between the
Union and its component states.” Rather, the issue involved only whether a plaintiff
who sued a party from another state could require that the case be decided in a
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.71 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
66 337 U.S. at 509.
67 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).
68 337 U.S. at 602.
69 Id. at 602-03.
70 Id. at 585.
71 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).
disregarded if Congress purported to be acting under the authorization of some other
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.73 The Frankfurter dissent made similar points, and also noted
the reluctance by which the states had even agreed to the establishment of diversity
jurisdiction.74 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’s 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 Transfer Co. 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 the three Justices of the plurality in Tidewater Transfer Co.
might arguably have supported the doctrine that the Congress’s power over the
District of Columbia would allow extension of House representation to its citizens.
However, even this conclusion is suspect. As noted, the plurality opinion took pains
to note the limited impact of its 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 legislation that
neither involved an “extension or a denial of any fundamental right” nor substantially
72 “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).
73 Id. at 628-31 (Vinson, J., dissenting). See, e.g., Keller v. Potomac Electric Co., 261 U.S.
74 Id. at 646-55 (Frankfurter, J., dissenting).
disturbed “the balance between the Union and its component states.”75 Arguably,
granting the Delegate a vote in the House involves an extension of a fundamental
right. Further, the possibility that a non-state political entity could cast a deciding
vote on an issue of national significance could well be seen as a substantial
disturbance to the existing federalism structure. Thus, even the Justices in the
Jackson plurality might distinguish the instant proposal from their holding in
Tidewater Transfer Co.
These three Justices might also have had other concerns that would weigh
against such an extension of their holding. 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.76
Although the question of diversity jurisdiction over residents of the territories was
not directly before the Court, subsequent lower court decisions77 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.”78
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.79
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. For
instance, granting House representation to American Samoa, with a population of
75 Id. at 585.
76 Id. at 584-585.
77 See, e.g., Detrea v. Lions Building Corporation, 234 F.2d 596 (1956).
78 U.S. Const. Art. IV, § 3, cl. 2 provides
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.
79 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.)
about 58,000,80 most of whom are not citizens of the United States,81 would appear
to depart significantly from the existing makeup 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,82 and perhaps even
the power to ratify Amendments to the Constitution.83
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.84 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.85 Every legislator is a member of the Committee, with full authority to debate
and vote on all issues.86 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.87
80 See CIA World Fact book, [https://www.cia.gov/cia/publications/factbook/index.html].
81 See Arnold Leibowitz, DEFINING STATUS: A COMPREHENSIVE ANALYSIS OF UNITED
STATES TERRITORIAL RELATIONS (1989) at 41.
82 This authority, it should be noted, has already been granted, but it was done by
Constitutional Amendment. See U.S. CONST. Amend. XXIII.
83 U.S. CONST. Art. V.
84 Alexander, De Alva Stanwood, HISTORY AND PROCEDURE OF THE HOUSE OF
REPRESENTATIVES 257 (1916).
85 W. Oleszak, Congressional Procedures and the Policy Process 128 (1984).
87 Id. at 129.
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,88 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 § 2,89 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
electoral requirements required of Members of Congress.90 Consequently, the
Constitution does not appear to provide the basis for a delegate to exercise the power
of Members under the Constitution.91 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,92 serving on standing congressional
committees, voting on these committees,93 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.94
88 U.S. Const. Art. I, § 1.
89 Michel v. Anderson, 14 F.3d 623, 630 (D.C. Cir. 1994).
90 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.
91 Michel v. Anderson, 14 F.3d 623, 630 (D.C. Cir. 1994).
92 See, e.g., H.R. 4718, 102nd Cong., 2nd Sess. (a bill submitted by Delegate Eleanor Holmes
Norton to provide for admission of the State of New Columbia into the Union). Cosponsors
are apparently not required. See id.
93 Rule XII, Rules of the House of Representatives.
94 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,
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.95 In Michel, the court noted the long-
standing traditions of allowing territorial delegates to vote in standing committees.96
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.97 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.”98
The question has arisen as to who might have the ability to challenge a statute
which provides a representative of the District of Columbia a vote in the Committee
of the Whole or in the full House. Article III of the Constitution requires that the
federal courts may only consider lawsuits which involve actual “cases or
controversies.”99 This limitation is enforced through the doctrine of standing, which
provides that, in order to bring a suit in federal court, a plaintiff must have a personal
stake in the outcome of the controversy.100
The Supreme Court has indicated that there is a four-part test to determine
whether a party has standing: (1) there must be an injury in fact (2) to an interest
arguably within the zone of interests protected by the statute or constitutional
guarantee at issue (3) resulting from the putatively illegal conduct and (4) which
could be redressed by a favorable decision of the court.101 Thus, an evaluation of
whether a particular plaintiff would have standing would require an evaluation of
these four factors.
There would appear to be at least three groups of plaintiffs who might be in a
position to bring a suit based on the above factors. First, voters in a state (or perhaps
the state itself) could argue that the vote of their Representative in the House was
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.
95 14 F.3d 623 (D.C. Cir. 1994).
96 Id. at 631.
97 Id. at 632.
99 U.S. Const., Art. III, § 2.
100 See Baker v. Carr, 369 U.S. 186, 204 (1962) (voters have standing to challenge state
101 Valley Forge Christian College v. Americans United for Separation of Church and State,
diluted by the provision of a vote to non-states. Second, Representatives themselves
could argue that their vote had been diluted or nullified by vote from a representative
of the District. Finally, were a representative from the District to cast a deciding vote
regarding legislation that became law, persons affected by such legislation might be
able to bring suit.
The United States Court of Appeals for the District of Columbia has directly
addressed the issue of whether voters from a state would have the authority to
challenge the provision of District of Columbia voting representation in the House.
In the case of Michel v. Anderson,102 the Court of Appeals reviewed a district court
opinion which had considered whether state voters would have standing to challenge
a House Rule from the 103rd Congress that provided a vote by the District of
Columbia and territorial delegate in the Committee of the Whole of the House.103 In
considering this issue, the district court used the four-part test set forth above to
determine the existence of a “case or controversy.”
In Michel, the district court evaluated the injury to state voters as being related
to the injury to the voting power of their Representatives. Thus, the first question
was whether the injury the court was asked to consider was too generalized or
speculative to establish a true case or controversy. For example, a claim that the
alleged unconstitutional action merely diminishes a legislator’s effectiveness, but
does not actually diminish his legal authority, is generally considered too amorphous
an injury to confer standing.104 By contrast, the court had found previously that the
loss of a vote or deprivation of a particular opportunity to vote to be a sufficiently
particularized injury to warrant judicial scrutiny.105
In Michel, the district court found that the specific injury alleged was sufficient
to confer standing. For instance, the court noted that the Apportionment Clause of the
Constitution provides that Members of the House should be apportioned among the
states according to the number of inhabitants in the states.106 By allowing
representation from a non-state, the voting power of each Representative would be
less than that authorized under the Apportionment Clause. The court found that the
alleged dilution of the representational voting power set forth in the Constitution
satisfied the requirement of injury-in-fact.107
102 14 F.3d 623 (1994).
103 817 F. Supp. 126 (1993).
104 See Harrington v. Bush, 180 U.S. App. D.C. 45, 553 F.2d 190, 205-206 (D.C. Cir. 1977)
(Representative did not have standing because claim that illegal activities of CIA diminished
his effectiveness as legislator was not concrete injury).
105 Moore v. United States House of Representatives, 733 F.2d 946, 952-53 (D.C. Cir. 1984);
Coleman v. Miller, 307 U.S. 433, 438 (1939); Dellums v. Bush, 752 F. Supp. 1141, 1147
106 U.S. Const. art. I, § 2, cl. 3. “Representatives ... shall be apportioned among the several
States which may be included within this Union, according to their respective Numbers....”
107 See Vander Jagt v. O’Neill, 699 F.2d 1166, 1170 (D.C. Cir. 1983) (standing found based
on alleged dilution of Republican representation on congressional committees); Coleman
The district court also noted that the harm fell within the zone of interest
protected by Article I of the Constitution, and the court was able to trace the injury
to the actions of the House majority in passing the rule. Finally, the court held that
the alleged injury was capable of redress as the plaintiffs only sought a ruling that the
vote of the territorial delegates in the Committee of the Whole was unconstitutional.
As the plaintiffs met the requirements of all four prongs of the test for standing, the
court concluded that the state-voter plaintiffs could proceed.
The Court of Appeals for the District of Columbia, in reviewing this decision,
noted that the fact that an injury is widespread is not a bar to a suit, as long as each
person can be said to have suffered a distinct and concrete harm.108 The court also
noted the many times that the Supreme Court has held that voters who were placed
in a voting district that had significantly fewer voters than another district (“one-man,
one-vote”) had standing because the significance of their vote was diluted.109
Although in the Michel case, the vote dilution which occurred was of the
Representative’s vote, not the voters, the court did not find this distinction was of
significance for purpose of establishing injury. Thus, the court concluded that
sufficient particularized injury had been alleged to establish standing.110
A separate question arises as to whether Members of the House themselves can
bring a suit challenging the allocation of voting representation to the District of
Columbia.111 In addition to the state voters who brought suit in the case of Michel
v. Anderson, the plaintiffs in that case included Members of the House. The court
found that, like the state voters, the Members themselves had suffered particularized
injury. However, a further question, which had not been considered by the Supreme
Court at that time, was whether there were separation of powers and prudential
concerns which would preclude a court from allowing Members to maintain a suit
in such a case.112 As the Supreme Court has since considered this issue in Raines v.
v. Miller, 307 U.S. 433, 438 (1939) (standing found when action by state executive branch
overrode the votes of state senators).
108 See Public Citizen v. United States Dep’t of Justice, 491 U.S. 440, 449-50, (1989) (“The
fact that other citizens or groups of citizens might make the same complaint … does not
lessen appellants’ asserted injury….”).
109 See Wesberry v. Sanders, 376 U.S. 1, 5-6, (1964); Franklin v. Massachusetts, 505 U.S.
110 But see Skaggs v. Carle, 324 U.S. App. D.C. 87 (1997) (state voters may not challenge
requirement that income tax increases be approved by 3/5ths of the House, since
requirement can be changed by a vote of the majority of the House).
111 For a general discussion of the ability of Members of Congress to bring lawsuits, see
CRS Report RL30280, Congressional Standing to Sue: An Overview, by Jay R.
112 The court ultimately declined to allow House members to proceed under the doctrine of
“remedial discretion.” Michel v. Anderson, 14 F.3d at 627-28 (D.C. Cir. 1994). This was a
doctrine which the court had developed over the years to consider when a federal court may,
in its discretion, withhold judicial relief regarding challenges by Members of Congress to
Byrd,113 this latter case would appear to be the most relevant to consider regarding
the question of whether Members have standing to bring suit.
The question of congressional standing appears to involve issues that go beyond
the strict constitutional requirements of “case and controversy.” In general, standing
is a mixture of constitutional requirements and prudential considerations,114 and the
cases do not always clearly distinguish between the constitutional and prudential
aspects.115 It should be noted that Congress can eliminate some of the prudential
barriers to standing, but not the constitutional requirements.116 However, it should
also be noted that S. 1257 does not currently contain an explicit right for House
Members or other plaintiffs to challenge the law.
In Raines v. Byrd, six Members of Congress who had voted against the Line
Item Veto Act117 brought suit against the Secretary of the Treasury and the Director
of the Office of Management and Budget, alleging that the act unconstitutionally
increased the President’s power by authorizing him to “cancel” certain spending and
tax benefit measures after he signed them into law, without complying with the
requirements of bicameral passage and presentment to the President.118
The Court found that an Article III court should have a “restricted role” in
resolving disputes between the political branches,119 and held that plaintiffs lacked
standing because their complaint did not establish that they had suffered an injury
that was personal, particularized, and concrete.120 The majority was of the view that
legislative actions. For an analysis of the extent that this doctrine is still viable after the
Supreme Court decision in Raines v. Byrd, see CRS Report RL30280, Congressional
Standing to Sue: An Overview, by Jay R. Shampansky, at 5-9, supra note 111.
113 521 U.S. 811 (1997).
114 See Department of Commerce v. House of Representatives, 525 U.S. 316, 328-29 (1999).
115 Valley Forge Christian College, 454 U.S. at 471 (1982).
116 Raines, 521 U.S. at 820 n.3. The prudential components of the standing doctrine require
that (1) a plaintiff assert his own legal rights and interests rather than those of third parties,
(2) a plaintiff’s complaint be encompassed by the “zone of interests” protected or regulated
by the constitutional or statutory guarantee at issue, and (3) courts decline to adjudicate
“‘abstract questions of wide public significance’ which amount to ‘generalized grievances’
pervasively shared and most appropriately addressed in the representative branches.” Valley
Forge, 454 U.S. at 474.
117 P.L. 104-130, 110 Stat. 1200 (1996).
118 521 U.S. at 815.
119 Id. at 828. See also id. at 819-20.
120 Id. at 818-20. Although the holding was based on the Court’s finding that plaintiffs did
not satisfy the first standing requirement (personal injury), the Court questioned whether the
plaintiffs could meet the second standing requirement (that the injury be “fairly traceable”
to unlawful conduct by the defendants) “since the alleged cause of ... [plaintiffs’] injury is
not ... [the executive branch defendants’] exercise of legislative power but the actions of
a congressional plaintiff may have standing in a suit against the executive if it is
alleged that the plaintiff has suffered either a personal injury (e.g., loss of a
Member’s seat) or an institutional one121 that is not “abstract and widely dispersed”
but amounts to vote nullification.122 In the view of the Court, the Raines plaintiffs
alleged123 an institutional injury which damaged all Members (a reduction of
legislative and political power generally), rather than a personal injury to a private
right, which would be more particularized and concrete.124
The Court in Raines was willing to find an institutional injury to be sufficient
if that injury amounted to nullification of a particular vote125 and if the plaintiffs’
votes “would have been sufficient to pass or defeat a specific bill.”126 Additionally,
the Raines Court indicated that it would not find a nullification of a vote if some
means of legislative redress was available to the plaintiffs.127
Based on the Raines case, it could be argued that if a representative of the
District of Columbia cast a deciding vote, then a court might find this to constitute
their own colleagues in Congress in passing the act.” Id. at 830 n.11.
121 See Chenoweth v. Clinton, 997 F. Supp. 36, 38-39 (D.D.C. 1998) (personal injury more
likely to result in grant of standing, but institutional injury is sufficient under Raines), aff’d,
122 The Court in Coleman v. Miller, 307 U.S. 433 (1939), held that Kansas state legislators
had standing to bring suit against state officials to recognize that the legislature had not
ratified a proposed amendment to the United States Constitution. The plaintiffs in that case
included twenty senators whose votes against the measure would have been sufficient to
defeat it but whose votes were essentially nullified by the tie-breaking vote of the state’s
lieutenant governor, the presiding officer of the senate, in favor of ratification. The Raines
Court distinguished the injury alleged by the plaintiffs in that case (“the abstract dilution of
institutional legislative power”) from the injury asserted in Coleman (vote nullification), and
found it unnecessary to decide whether Coleman might also be distinguished on other
grounds. Because of the considerable difference between the vote nullification in Coleman
and the alleged dilution of legislative power in Raines, it was not necessary for the Raines
Court to determine “the precise parameters” of vote nullification that must be alleged for
Members to have standing under the Coleman exception to Raines. Campbell v. Clinton,
123 Plaintiffs alleged that the act injured them “in their official capacities” by (1) altering the
effect of all votes they might cast on bills containing items that could be cancelled by the
President; (2) divesting them of their constitutional role with regard to the repeal of
legislation; and (3) shifting the balance of power between the executive and legislative
branches. 521 U.S. at 816.
124 Id. at 821. The case might have been different if the House of Representatives had
authorized the suit. Id. at 829.
125 521 U.S. at 826.
126 521 U.S. at 822-23.
127 521 U.S. at 824.
vote “nullification,” and thus would represent a sufficient institutional injury so as
to allow a suit. For instance, if a legislator was part of group of Members whose
votes would have been sufficient to defeat the passage of a bill (because a majority
had not voted for its passage), allowing such bill to go into effect would appear to be
a nullification of those Members’ votes. Further, an attempt by that group of
legislators to overturn the vote by the District representative would also be subject
to the risk that the District could cast a deciding vote on this proposal.
Absent such an example of specific injury, however, it is less clear that an
individual or group of House Representatives could bring a challenge to a vote by a
District of Columbia representative if the vote had not yet had a specific effect on the
vote of such plaintiffs. In particular, the fact that the Congress could repeal the rule
or law granting such a vote would indicate that a court might require that legislators
seek redress from the Congress.
Finally, it would seem likely that, in the event that a representative from the
District of Columbia were to cast the deciding vote on a piece of legislation,
individuals directly affected by such legislation could bring a case. In this situation,
a plaintiff could arguably demonstrate an injury in fact and a substantial likelihood
that judicial relief could redress the claimed injury. The specific injury requirement
would be met by noting the application of the statute to a particular plaintiff, and
redress would be accomplished by a finding of unconstitutionality and the issuance
of an injunction.128
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’s power under the District Clause was sufficient to effectuate structural
changes to the political structures of the federal government. Further, the remaining
three Justices, who found that the Congress could grant diversity jurisdiction to
District of Columbia citizens despite the lack of such jurisdiction under Article III,
specifically limited their opinion to instances where there was no extension of any
128 INS v. Chadha, 462 U.S. 919, 935-36 (1983) (alien had standing to challenge the
constitutionality of 8 U.S.C. § 1254(c)(2), under which the House of Representatives, by
resolution, sought to invalidate the decision by the Attorney General to allow respondent to
remain in the United States); United States v. Smith, 286 U.S. 6, 33 (1932) (judicial review
was available where the Senate attempted to revoke the nomination of the plaintiff after he
had been confirmed to the Board of the Federal Power Commission).
fundamental right nor substantial disturbance of the existing federalism structure. To
the extent that providing District residents with House representation could be so
characterized, 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. 1905. 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