Posted by Jonathan Adler:
Challenging the Constitutionality of the D.C. Representation Bill:
http://volokh.com/archives/archive_2009_04_05-2009_04_11.shtml#1239118782
Some defenders of the proposed legislation to grant the District of
Columbia voting representation in Congress argue that whether the
statute is constitutional is a question that should be left to the
courts. I find this problematic on multiple grounds. First, all three
branches have an obligation to ensure that their actions are
constitutional -- all take an oath to uphold the constitution. Second,
not all federal government actions are amenable to judicial resolution
(see, e.g., the [1]post below). Some questions about the
constitutionality of executive or legislative action can only be
resolved by the political branches. Thus, if the executive does not
make an independent effort to ensure that it is acting in accord with
the constitution, there will be instances in which there is no
assurance that the Executive is, in fact, acting constitutionally,
because there is no judicial oversight.
While it may be appropriate for the executive branch to show some
degree of deference to the independent determination of the
legislature about a bill's constitutionality -- as some Founders did
-- the Executive still has an independent obligation to assess the
constitutionality of proposed legislation, particularly where (as
here) the Executive may be the last word on proposed legislation's
constitutionality. This does not mean that the President is obligated
to follow OLC's lead, but it does mean the President does have an
obligation to consider the constitutionality of legislation before he
signs it (and, in my view, the President has an obligation to veto
legislation he believes to be unconstitutional -- an obligation quite
a few Presidents have violated).
In the present case, it is unclear whether anyone would have standing
to challenge the constitutionality of the proposed legislation. In
[2]Raines v. Byrd, the Supreme Court held that members of Congress did
not have standing to challenge the constitutionality of legislation
creating the line-item veto, even though the legislation had the
effect of lessening their political influence. I think Raines is
potentially distinguishible, as there is a more direct "vote dilution"
claim here, but it's anything but an open and shut case.
[3]Calvin Massey is more optimistic that either House members, or
perhaps a state, would have standing to challenge the bill. He writes:
There are several possible entities with standing. After
Massachusetts v. EPA states have standing, as parens patriae, to
secure the benefits of federal union to their citizens. One of
those benefits is a Congress composed of representatives of the
states, and only the states. A Congress that includes
representatives from the federal district is not such a Congress.
Any state has standing to challenge the validity of the act. It is
also possible that members of the House have standing to challenge
the validity of the act. In Raines v. Byrd members of Congress
lacked standing to challenge the Line Item Veto act on the ground
that their votes were rendered ineffective, because their votes
"were given full effect. They simply lost that vote." But in this
case, a House member's vote is not given full effect, because it is
diluted by the vote of an imposter -- a "member" who is not
entitled to be a member.
These are reasonable arguments. (I particularly like the reliance on
Mass v. EPA.) Still, I wonder whether the Court would insist that a
party asserting standing identify a specific instance in which the
diultion of their vote had an influence on specific legislation, much
as the Supreme Court waited for a plaintiff to identify a specific
vetoed item before hearing a challenge to the line-item veto act.
Perhaps we'll see.
References
1. http://volokh.com/archives/archive_2009_04_05-2009_04_11.shtml#1239117082
2. http://www.law.cornell.edu/supct/html/96-1671.ZO.html
3.
http://www.thefacultylounge.org/2009/03/why-the-dc-house-seat-bill-is-unconstitutional-and-who-has-standing-to-challenge-it.html
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