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Back in November, I posted my essay The problem of Congressional representation for the District of Columbia "[u]nder the logic of 'better late than never.'" Today, MKH flags up a story that falls square in its sights:
Yesterday, Democratic House Leader Steny Hoyer introduced a proposed change to House rules that would allow Delegates and the Resident Commissioner of Puerto Rico to vote on the floor of the House ... Hoyer’s rule change would allow the delegates and the Resident Commission to cast votes in the Committee of the Whole [House].
MKH is playing the partisan angle (which, to give her her due, is fair: this is, of course, an utterly cynical move by Democrats to pad their majority with five extra votes). The more important point, though, is flagged by George F. Will, who MKH links to: "What part of the words 'several states' do House Democrats not understand?" The real problem here isn't partisan politics, it's that this is absolutely forbidden by the Constitution. Democrats say that "giving the five representatives the right to vote when the House sits ... is an extension of voting rights and an issue of basic fairness." But the Constitution does not always demand "fair" results, and sometimes it absolutely forecloses it. It's irrelevant whether it's "unfair" that delegates can't have a vote in Congress; it's irrelevant which party they belong to; what matters is what the Constitution says. That's why this post is filed under "law" as a category, not "politics" - or, still less, "fairness."
Of course, here's the the really clever part: who would have standing to challenge this? Not House Republicans, in light of Raines v. Byrd.
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I guess there's really no way to avoid the fact that the Dems
are wrong here. The plain reading of the Constitution forbids this. It seems like they tried to sidestep the issue of statehood, and give those members their votes anyway. Politically, it looks real bad, as the GOP will demagogue this to death. It's hardly the end of the dream, but this isn't excatly a step in the right direction.
"In the world you will find tribulation, but be of good cheer, for I have overcome the world."
John 16:33
It's a repeat offense--they
It's a repeat offense--they did the same thing back in 1993.
Fortunately, it's functionally symbolic....
As George Will points out, the new rule provides that, if the outcome of a vote on a measure in the committee of the whole depends on any of those five votes, a new vote will be taken, in which the delegates will not be allowed to vote. Thus, the delegates' votes will never be determinative of the outcome of legislation. Fortunately, the Democrats are cautious enough not to jeopardize the effectiveness of any of the bills they manage to pass to include this revote requirement, but they still shouldn't be doing it.
Simon, in answer to your question, nobody will have standing to challenge the rule, since it will never have any legal effect. If the revote provision were not in there, then plenty of people would have standing to challenge it. Anybody who would be affected by a law which passed only because of the participation of one of those delegates would have standing to assert that it was not a law, because Congress exceeded its authority in granting voting rights to the delegates.
Since this is merely symbolic(what's up with all these symbolic
measures lately?), then could it be just a very sloppy way to make a case for full representation? Or, are they just playing around up there?
"In the world you will find tribulation, but be of good cheer, for I have overcome the world."
John 16:33
That'd be quite an audacious
That'd be quite an audacious gambit - although I don't think anything trumps U.S. v. Munoz-Flores. I've said this before, but the cajones on the lawyer who thought up that challenge...;)
I guess my question is, who would they sue? The United States House as a corporate entity?
Who they'd sue...
No, they wouldn't sue for some declaration that the law was invalid; the issue would arise in some perfectly ordinary lawsuit.
Let's take a concrete example of a tax law. Congress passes a law, with a one-vote margin in the House which depended on the DC delegate's vote for passage, which increases the capital gains tax by 5%. You fill out your taxes. You pay only the old rate, not the new, higher rate. The IRS brings an enforcement action against you. You defend the case by asserting the unconstitutionality of the law, having not been validly passed by a majority of the House of Representatives.
Or a bill passes which removes copyright protection for a certain class of intellectual property, an example of which you own. Somebody copies your work, which is not protected under the new, questionable bill passed with the aid of the DC delegate. You file suit anyway. The other side defends based on the new law. You assert its invalidity, and thus the continuing validity of the previous law.
This is just how Munoz-Flores arose. Mr. Munoz-Flores was convicted of a federal felony. Under a new law, he was required to pay a special assessment to aid crime victims. He alleged the unconstitutionality of the law. The Court held that the question of whether a bill had originated in the proper chamber of Congress was a justiciable question, and found no difference between a constitutional challenge to a law grounded in the Origination Clause and a challenge grounded on any other provision of the Constitution. I'm afraid that on cursory review, I can't agree with Our Hero's dissent in the case; I think the majority is correct.