(Cartoon Credit: © 2001 Clay Bennett)
The Washington Post reports that several members of Congress requested a Congressional Research Service report on the constitutionality of the DC-Utah bill, and the CRS report said it was unconstitutional. Here's why this is a big deal:
The report by the Congressional Research Service is not binding, and its conclusions reflect what some prominent legal scholars have been warning for years. But it could carry extra weight because the service generally gets high marks for its nonpartisan advice to the House and Senate.
The report lands at a time when the D.C. voting rights effort has been gaining momentum. The new Democratic majority in the House has vowed to move quickly on such legislation.
Thomas Mann, a congressional scholar at the Brookings Institution, said the report represents "a creature of the Congress . . . saying this doesn't really pass constitutional muster. That has to be taken seriously and will certainly be used by those who oppose it."
The question, however, is highly debatable. Ken Starr, "a former federal appellate judge and onetime independent counsel [who investigated Bill Clinton for years]," and Viet D. Dinh, a former assistant attorney general, had analyzed the measure and found it constitutional."
It all depends on how you interpret the case law:
One is a clause that limits House membership to individuals chosen "by the People of the several States." Courts have determined that the phrase excludes the District, the report says.
The second relevant part of the Constitution, the "District Clause," grants Congress broad authority over the city. The bill's proponents note that the Supreme Court ruled in 1949 that Congress could use its powers to give D.C. residents the same rights as other citizens.
That case, National Mutual Insurance Co. v. Tidewater, concerned the right to have a federal court hear lawsuits involving people of two states.
But the research service says that ruling was narrow. Six justices wrote that the congressional powers over the District weren't big enough to justify making "structural changes to the federal government," the report says. Giving a vote to the District would be such a change, it says.
So what does this all mean? Well for those who were leaning against voting for the bill, the CRS report gives them another excuse to vote 'nay.' There is no doubt that someone will sue to challenge the constitutionality of the bill, assuming President Bush would sign it.
I would hope that DC residents would protest outside the homes of every Justice to drive home the point that they are American citizens and should be able to have the same voice in Congress that their fellow citizens a few miles away enjoy. Of course, Justices like Clarence Thomas don't live in the District.