One of the Few Things I’m With the White House On

It’s that Washington, DC isn’t meant to have representation in Congress. Sorry, guys. I think if it was meant to, it would have been specified in the US Constitution, and what’s in the Constitution about DC (and the representation thereof) is too wobbly to be a good legal argument for that representation. Naturally, I allow that lots of people will disagree with me on this one. But fundamentally I think DC is supposed to be a funky federal fiefdom, a place where Congress can do its thing without aggravating one of its own members. It’s a bit of an atavistic view, I’m sure, but there you have it.

It’s one of the reasons, actually, that when I lived in the DC area I never considered living in the District; I like having representation in Congress.

62 thoughts on “One of the Few Things I’m With the White House On

  1. There is no benefit for the people living in DC, clearly. I think the argument is that DC exists for the benefit of Congress, not the people living there.

  2. While I basically agree, it always struck me as unfortunate that the founders specified so much area for the capital that it was bound to include large chunks of residential land. If a reasonable compromise is needed, I’d suggest limiting the “unrepresented land” to the smaller zone that the tourists mostly see, and giving the residential areas back to Maryland (as already happened with the Virginia areas). There really shouldn’t be U.S citizens without congressional representatives, but residential D.C. is nowhere near large enough to qualify for statehood on it’s own.

  3. The origin of the District is that in 1780-something, the Pennsylvania militia showed up at the Continental Congress and basically chased the delegates out of town. The District was founded as a site where the Federal Government couldn’t be intimidated by any single state or municipal authority.

    If you don’t like huge roaches, don’t move to Florida. If you want congressional representation, don’t move to D.C.

  4. I don’t feel like I have representation in Congress, either. The creep who “represents” me has a gerrymandered safe seat, and will be reelected no matter how corrupt, obnoxious, and incompetent he is.

    I have no problem with giving the DC delegate full voting rights in the House. Maybe DC voters should be allowed to vote for the Senators from Maryland, too. Wouldn’t that solve the problem of representation?

  5. I suspect you’d need a constitutional amendment to allow DC citizens to vote for Maryland senators, and if you’re willing to go that far, you might as well push for a constitutional amendment for DC statehood.

  6. Dave wrote:

    …but residential D.C. is nowhere near large enough to qualify for statehood on it’s own.

    I disagree. Last I looked, DC had a population of a little over half a million, comparable to Vermont, Alaska or Wyoming.

    I feel that a new state should be created out of most of DC, with a small, non-residential zone around the Capitol Building, the Supreme Court Building (across the street) and the White House. I’d also wouldn’t mind giving most of DC to Maryland, but I suspect MD won’t want it, and their legislature would have to sign off on that.

    When the founders set up DC, they probably didn’t expect anyone to live there, except the President and members of Congress, and their small staffs (who would vote in their home states), their wives (women couldn’t vote in 1789) and their servants (many of them slaves, who likewise couldn’t vote). Times have changed considerably since 1789, to say the least.

  7. To clarify my earlier post:

    “I feel that a new state should be created out of most of DC, with a small, non-residential zone around the Capitol Building, the Supreme Court Building (across the street) and the White House remaining in the District.

  8. They pay federal taxes. They deserve representation in Congress.

    Anything else strikes me as totally unfair to the people who live there. As Kenneth Starr (!) has said, there is no evidence that the Founding Fathers intended to disenfranchise the residents of the District. It may take an amendment for all I know, but it’s still the right thing to do.

  9. Speaking as a DC resident for the last 6 six years, if I pay federal taxes — and I do, quite a lot — I should have voting representation in Congress. Period. If Congress has a Constitutional problem with granting statehood to the District, then those of us living here should be exempt from federal taxes. As far as I’m concerned, it’s that simple. Either option would be reasonably fair. What’s inexcusable is having NEITHER option.

    OTOH, I’m moving to California in a month, so it will no longer be My Problem. :)

  10. If you offered people no taxation in return for no representation, I suspect the political makeup of DC would change overnight.

  11. The problem with the “If you want representation, don’t live in DC” is that there are a huge number of poor people in DC who CAN’T live anywhere else. They run the little shops, or clean the floors of the capitol or whatever. They can’t afford to live in MD or VA because close in, the property prices are too high, and farther out, they can’t afford the transportation to get to work each day.

    I have a major problem every time someone says something like “if it was meant to, it would have been specified in the US Constitution” That makes the constitution into some holy, infallible document. The founders allowed slavery, they allowed women to not be able to vote, they made many many mistakes. They made many many correct calls as well. However, IMHO, I agree with Hugh57, that the founders didn’t expect there to be anyone actually LIVING in the district. Since there are, those people need to be represented.

    The fact that the official DC license plates say “Taxation without representation” on them is a constant source of amusement to me.

  12. The problem with the “If you want representation, don’t live in DC” is that there are a huge number of poor people in DC who CAN’T live anywhere else. They run the little shops, or clean the floors of the capitol or whatever. They can’t afford to live in MD or VA because close in, the property prices are too high, and farther out, they can’t afford the transportation to get to work each day.

    I have a major problem every time someone says something like “if it was meant to, it would have been specified in the US Constitution” That makes the constitution into some holy, infallible document. The founders allowed slavery, they allowed women to not be able to vote, they made many many mistakes. They made many many correct calls as well. However, IMHO, I agree with Hugh57, that the founders didn’t expect there to be anyone actually LIVING in the district. Since there are, those people need to be represented.

    The fact that the official DC license plates say “Taxation without representation” on them is a constant source of amusement to me.

  13. Brian Postow:

    “The problem with the ‘If you want representation, don’t live in DC’ is that there are a huge number of poor people in DC who CAN’T live anywhere else.”

    Agreed — I had a choice not to live in DC and didn’t. Others did not have the same options.

    The question is whether the inconveniencing of several hundred thousand people via congressional disenfranchisement is an acceptable price for Congress not having to sit in someone’s home state and be subject to that state’s whims.

  14. “The question is whether the inconveniencing of several hundred thousand people via congressional disenfranchisement is an acceptable price for Congress not having to sit in someone’s home state and be subject to that state’s whims.”

    Doesn’t Hugh57’s suggestion of a much smaller “district” with no residents solve that problem?

    I don’t think that the founders intended for congress to be in control of the funding for the DC School district, for example.

    So it’s not just congressional representation that they lack. Congress can veto anything that the mayor or city council do. This means that DC residents pay not only federal, but also district taxes, and have no say in how any of those get spent.

  15. The question is whether the inconveniencing of several hundred thousand people via congressional disenfranchisement is an acceptable price for Congress not having to sit in someone’s home state and be subject to that state’s whims.

    Surely these can’t be mutually exclusive goals?

  16. A simple solution suggests itself – DC residents get to be MD residents for the purposes of Senate/House/State legislature representation, but MD gets no governmental control of anything inside DC city limits. (Similar to the way college students retain home state residency if they go to college elsewhere.)

    Alternatively, start chipping off residential bits of DC and ceding them to MD. That would be the road to fewer people, at least, being disenfranchised, which would be better than the current situation. Perhaps in the long term, office expansion of Federal buildings, embassies, museums, secure zones, and commercial property combined with shedding residential bits would only leave a couple thousand people disenfranchised – a few hundred, best case. That doesn’t seem so bad.

    Ceding small bits of DC might not even require any constitutional monkey business – it didn’t when VA got the other half of DC, did it?

  17. When the founders set up DC, they probably didn’t expect anyone to live there, except the President and members of Congress, and their small staffs (who would vote in their home states), their wives (women couldn’t vote in 1789) and their servants (many of them slaves, who likewise couldn’t vote). Times have changed considerably since 1789, to say the least.

    No, the intent was to create an “imperial capital”, along the lines of Paris, that would include significant residential and commercial districts.

    Last I looked, DC had a population of a little over half a million, comparable to Vermont, Alaska or Wyoming.

    To be sure, DC is not comparable to any of those in size. If a population of half a million is the prime qualification for statehood, then why shouldn’t any of the dozens of cities in the US that are larger in population than Washington also be states?

    It didn’t require a constitutional amendment to retrocede Arlington and Alexandria to Virginia. Surely something similar could be worked out for DC and Maryland. Making it a state, on the other hand, would be much harder, because it would alter the balance in the Senate.

  18. The DC case reminds me a little of Hong Kong, during its 99-year lease to Britain. It was never intended that people live there; they were actively discouraged from immigrating there; denied any form of representation until the very end… but still they came. Comes a point when reality kind of takes over, I think?

    Not that I have any iron in this fire.

  19. Alternatively, start chipping off residential bits of DC and ceding them to MD. That would be the road to fewer people, at least, being disenfranchised, which would be better than the current situation.

    Ouch! Please don’t. I’m quite fond of DC, having lived here for more than 35 years. There is a real city here, with real people who care about our city as a whole.

    The Washington Post article that John links to at the top is about a far more modest attempt by Congress to be fair to us tax-paying citizens of DC: not statehood, not full respresenation in the House and Senate, but simply letting our single delegate in the House vote on legislation. I don’t think that would shake the foundatons of the federal government.

    Bush, however, has stated that he thinks such a change would be unconstitutional. And, alas, his great concern for the Constitution might lead to a veto of the proposed legislation. Other constitutional scholars are not as negative.

    The people of DC are overwhelmingly of the Democratic pursausion. This seems to annoy Republicans in the White House. We like that.

  20. Kami, an easier way to handle what you suggested is to give the land back to the state of Maryland. Part (Arlington County) was already given back to Virginia many years ago.The area used for government buildings, monuments, etc would be in a federal reservation, like military bases and other federal enclaves in other states. The US would pay to the state of Maryland a sum in lieu of taxes as is done in the case of other federal enclaves. There would be no need for a teeny little state whose only business is government, MD would not have any “partial citizens” and would not be cheated out of any tax money, the people “moved” from DC to MD would become citizens and taxpayers of that statem, with full representation and no special cases needed. The federal and MD governments should agree that these people become full residents immediately, and any waiting period normally applied for any purpose would be waived.There may perhaps need to be a couple of minor tweaks that I have missed, but this should cover it.

  21. Taxation without representation. That’s why this country exists in the first place. To have citizens in DC unrepresented is hypocrisy of the first order.

    They already have a House representative that sits on panels and committees, can enter debate into the record – they just can’t vote. Give this house member a vote. Problem solved. It’s not a state, DC should never be a state, and should not have Senators. But 1 House rep is fair. 1 House rep is the right thing to do. Just give the rep the vote. Otherwise DC is exclusively controlled by individuals elected by other people from other states. That isn’t American.

    Changing the rules for DC isn’t a huge crisis either – DC residents have only been allowed to vote for president since the 1960’s. Let their House rep have full status.

  22. The U.S. Senate is the equivalent of the House of Lords, in how it allows established fiefdoms (in the form of U.S. States) to have a share of political power. Given the urbanization that has taken place since 1789, it seems insane to give the equivalent of good old English “rotten boroughs” a say in power.

  23. John: this is a real surprise – you usually seem more pragmatic when it comes to balancing “funky” political concepts that benefit no one with the real needs of almost 600,000 people, 20% of whom live below the poverty line.

  24. Don’t blame me; blame the Constitution. You want to change the Constitution on this score, I have no objection to your trying. As it stands, however, I don’t think the Constitution supports Congressional representation for DC.

  25. Troll answer: Ok, as long as we eject Vermont.

    Silly answer: what about all the flags that will need to be redone?

    Real answer: Give it (or parts) to Maryland.

    Real, real answer: leave it like it is.

  26. How about Peurto Rico? Don’t they have some deal where they get welfare, but don’t pay taxes? What a waste. Kick em out. Welfare sucks.

  27. I think Puerto Ricans do have to pay some of their federal taxes–the stuff apportioned to SS and Medicare, and in some cases, federal income tax. I don’t think they are getting welfare for free, in any case.

  28. “Puerto Rican residents do not pay federal income tax nor vote in presidential elections but do pay social security, receive federal welfare and serve in the USA armed forces. ”

    They get the welfare, but don’t pay the income tax. I say…GO INDEPENDANCE!

  29. TCO, as a general rule I prefer people to use one comment at a time whenever possible, so please don’t post until you’ve collected all your data into one thick and meaty comment. Thanks!

  30. As a DC resident, I say we do not need statehood, or even our own vote in congress. We should just make it so that we the residents of the District of Columbia can choose to vote in whatever district in the country come election time. So for example say I wanted to vote in Ohio in 2008 I would just inform the federal government that was the location I wished my vote to be counted in and be done with it. So no intimidated congress, and we can get our representation.

    Also if I wanted to live in dirty old Maryland I would live in MD, I work on the hill and I like walking to work.

  31. Rob, I don’t know if you are joking or not, but I can’t think of a worse idea. With polling and the internet, either side could figure out which states were going to be close calls and mobilize their entire D.C. base and have them vote in that state to swing it. *Shudders* Just think of the legal wrangling that would happen after that. Not a pretty sight, that’s for sure.

  32. Lugo wrote:

    To be sure, DC is not comparable to any of those in size.

    If you’re talking geography, yes, Alaska, Wyoming and even Vermont are larger. But in terms of population, they are comparable.

    http://en.wikipedia.org/wiki/List_of_US_states_by_population

    If a population of half a million is the prime qualification for statehood, then why shouldn’t any of the dozens of cities in the US that are larger in population than Washington also be states?

    Because those other cities are already parts of states, and are therefore already represented in Congress. DC isn’t.

  33. “I work on the Hill and I like walking to work.”
    ??If DC were returned to Maryland, your home and work would still be in exactly the same geographic locations they are now. Washington, DC would become Washington, MD is all.The problem is that the founding fathers didn’t expect congress to be in session all the time. Thus, everyone in DC would be there temporarily and a legal resident elsewhere. So with no actual DC citizens, there was no need to worry about representation. A constitutional amendment would be required to give DC representation in congress, just like one (#23) was needed to give it electors in presidential elections.

  34. “Speaking as a DC resident for the last 6 six years, if I pay federal taxes — and I do, quite a lot — I should have voting representation in Congress. Period. If Congress has a Constitutional problem with granting statehood to the District, then those of us living here should be exempt from federal taxes. As far as I’m concerned, it’s that simple. Either option would be reasonably fair. What’s inexcusable is having NEITHER option.”

    No taxes for people under the age of eighteen!
    I’m not being facetious, either. I think that I should either be legally allowed to vote, or shouldn’t have to pay taxes.

    I like the “college-student” idea the best. I don’t think it would require any Constitutional tweaking, either.

  35. We charge taxes to felons denied the right to vote. Also aliens. Similarly, we allow people to vote who pay no taxes. Your equating the two makes no sense.

    I don’t agree with statehoood. That’s not fair to the Republicans. The Senate impact. (Although if you really want to be a radical, you could say that the whole Senate concept is unfair and we should have a unicameral legislature based on the H of R. Good luck on that.) I’m ok with the demo’s getting another representative or two, as would be the result if they gave part or all of the land back to Maryland.

    There is also the practical aspect that Washington DC is an incridably inept, corrupt, welfare-bloated local government. Not exactly a group that deserves to be rewarded with enhanced self-rule. Poor liberals. Things just never live up to their little dreams.

    (John…I put it all in one comment.)

  36. If you’re talking geography, yes, Alaska, Wyoming and even Vermont are larger. But in terms of population, they are comparable.

    Uh, yeah, I got that. That’s why I said DC is not comparable to any of those in size.

    Because those other cities are already parts of states, and are therefore already represented in Congress. DC isn’t.

    So that is an argument for making DC part of another state (MD), not a state in itself.

  37. So here’s the thing: if the proposed legislation is unconstitutional, then we’re set, because we’ve got this amazing thing called a Judicial branch that, get this, can check the powers of the Congress by declaring this new statute unconstitutional.

    It’s not the administration’s job to determine what is or isn’t constitutional, and using that as a justification for his veto is disingenuous. He can veto it for any other reason (actually, he doesn’t even need a reason) but the constitutionality of the legislation is not his worry.

  38. Lugo wrote:

    So that is an argument for making DC part of another state (MD), not a state in itself.

    Actually, I think that it could be an argument for either. Frankly, I believe that giving back mast of DC (all but the Capitol Building, etc.) would be the best solution. But I don’t think that will happen, because I think that Art. 4, Sec. 3, Cl. 1 could require the Maryland Legislature to sign off on that plan:

    New States may be admitted by the Congress into this Union; but no new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

    For a number of reasons, I don’t think that the Maryland Legislature will willingly go along with this plan.

    I don’t think that DC statehood will happen either; that would give them two senators, who would presumably be Democrats. With the Senate so closely divided (50 Democrats, 49 Republicans, plus 1 Democrat still recovering from a stroke), I don’t think that DC statehood would fly anytime soon.

  39. The President (and members of Congress) swears an oath to uphold the Constitution. It is not only a reasonable rationale for him to veto bills (that they are not constitutional) but if he did the opposite, he would be acting irresponsably.

  40. TCO – that’s true in some cases, where Congress was clearly and obviously attempting to violate the Constitution. In the case of statehood (or a vote in Congress) for DC, it really is much more of a grey area. If the President was required to veto any piece of legislation that *could* be unconstitutional, well… Bush would have vetoed more than just one piece of legislation over the past six plus years.

    Bush has the right to exercise his veto, or not, but he has not been given the power to determine whether an act is constitutional. He is certainly entitled to an opinion – but to use that opinion as the reason for a veto is disingenuous. It would be far more honest to say that he felt that it would be damaging to the makeup of the electoral college or that as a strict constructionist, he felt that the founders, under any set of possible circumstances, intended to District to be without a vote in Congress.

    Methinks Bush will either have to start vetoing a LOT of legislation (District-gets-a-vote, airport-screeners-can-unionize and the Employee Free Choice Act to start) or learn how to horsetrade.

    Please don’t veto the EFCA, Mr. Bush.

  41. Gwen,
    thank you!

    hugh57 wrote:

    Lugo wrote:
    Frankly, I believe that giving back mast of DC (all but the Capitol Building, etc.) would be the best solution. But I don’t think that will happen, because I think that Art. 4, Sec. 3, Cl. 1 could require the Maryland Legislature to sign off on that plan:

    New States may be admitted by the Congress into this Union; but no new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

    I don’t see this as an impediment, since DC is neither a state or part of a state – it’s a district, hence the problem. If this bit didn’t prohibit adding bits to Texas (for instance), then it shouldn’t probit adding bits of DC to MD.

    The MD legislature is likely to object for practical reasons – DC has a lot of poor people, and expensive infrastructure to keep up. It is much the same reason why Baltimore City and Baltimore County are distinctly different entities – upkeep costs (tap two land per turn of any color) are kept off of the middle class tax base that fled the City in 1964-1967.

    (Hugh, that passage is an excellent impediment to DC getting statehood, and proves our Host’s point nicely.)

  42. I think it would be a fairly safe assumption that Maryland would have to agree to accept ‘Washington County’ before it would be annexed to MD. And as for annexing it to one or two existing counties, the problem would be that the two counties that would have to accept the bulk of DC are Prince Georges and Montgomery. The difficulty therein would be that those are two of the wealthiest counties in the area, and would have little to no interest in absorbing the costs and problems inherent in DC.

    For one thing, I would highly doubt that Mogo and PG counties could continue to fund their schools at the present rate (they have two of the top school districts in the country) while not funding the predominately african american schools of former DC. There would have to be some sort of parity, and while DC schools would likely improve, the current schools in PG and Mogo counties would suffer. And the quality of their school systems are a good part of what keep the property values high, so when those start to drop…

    We in MD feel kind of bad for DC, but we have our own problems too – we don’t need additional ones.

  43. If the President was required to veto any piece of legislation that *could* be unconstitutional, well… Bush would have vetoed more than just one piece of legislation over the past six plus years.

    Ha, just because Bush does not do something, does not mean he has no actual obligation to do so. In fact, he did not veto McCain-Feingold, even though he said beforehand that he thought it was unconstitutional (not probably unconstitutional, or could be unconstitutional, but definitely unconstitutional). If that’s not an abdication of responsibility, what is?

    In my view, McCain-Feingold was a case “where Congress was clearly and obviously attempting to violate the Constitution.” Alas, the Supremes disagreed.

  44. Why, exactly, do we care if the Founding Fathers thought DC should have representation?

    Are you actually arguing that it *shouldn’t* have representation (a moral question), or simply that in your judgement, it will require a constitutional amendment (a legal question)?

    DC didn’t have a third of a million citizens in 1789. It did have a lot of slaves, which the Framers were generally in favor of. That rather diminishes my passion about what they “meant to be”. Don’t get me wrong — they did a good job setting up a durable system. But they didn’t expect to get it all right, which is why we have amendments. Where they were wrong, they were wrong.

    A third of DC is already a federal reservation where the city government has no power.

    Disenfranchising a third of a million US citizens requires some more justification than having a “funky federal fiefdom”. I’m having trouble envisioning the case where there’s something very important relating to DC which 100 Senators and 500+ Housies are up to, which 1 DC rep would derail because it would be “aggravating” to her… and where I would side with the rest of them…

  45. Lugo – well, that’s just it. Until SCOTUS rules otherwise, believing McCain-Feingold to be unconstitutional is nothing more than opinion. And it doesn’t matter whether you are posting on the internet, or POTUS.

    If Bush vetos the DC statehood bill because in his view it is clearly unconstitutional, and in keeping with his sworn oath to uphold the Constitution, and Congress overrides his veto, is the bill unconstitutional? Not any more or less than if he had vetoed it because the Senate sponsor wore a yellow tie when he introduced it.

    My guess is that Bush is trying to throw his weight around, not having to deal with a Democrat controlled Congress before, and will slowly remember that he can’t have everything. If he simply vetos everything he doesn’t like, he risks going to ’08 with the Republicans branded as do-nothings and nay-sayers.

    Which doesn’t matter to him, but it does to his party. So Bush will learn to compromise, and some things will avoid vetos, so that his colleagues can point to progress made by them during their terms.

    An excessive number of vetos by Bush only feed into the idea that the Democrats are trying to fix this country (and the war in Iraq) but are being stymied by the incompetance of the Right. After all, this country changed the balance of power in Congress as a vote of no confidence in the Right. If Bush, as head of the Republican party, blocks everything they are doing, the conventional wisdom will not be that we need fewer Republicans, but rather that the country needs more Democrats, both in the White House and in Congress.

  46. Until SCOTUS rules otherwise, believing McCain-Feingold to be unconstitutional is nothing more than opinion. And it doesn’t matter whether you are posting on the internet, or POTUS.

    No, it absolutely matters if the President thinks something is unconstitutional. Many Presidents have believed – and acted on the belief – that they have an independent duty to uphold the Constitution, which is, after all, what they swore an oath to do. You may know that Jefferson considered the Alien and Sedition Acts unconstitutional, even though the courts had upheld them, and released the people imprisoned under the Acts. Tossing responsibility to the courts is a clear abdication of responsibility.

    If Bush vetos the DC statehood bill because in his view it is clearly unconstitutional, and in keeping with his sworn oath to uphold the Constitution, and Congress overrides his veto, is the bill unconstitutional? Not any more or less than if he had vetoed it because the Senate sponsor wore a yellow tie when he introduced it.

    Both Congress and the President have a positive obligation to uphold the Constitution and prevent its violation. If Congress passes a law, and the President vetoes, and it is overriden, then that is your decision – yes, it was constitutional. On the other hand, if the President vetoes it, and the veto is not overriden, then indeed it was unconstitutional. In short, if SCOTUS does not step in, then “constitutionality” can be determined by the other branches.

    Moreover, in either case (veto overriden or not), the President’s opinion indeed “mattered” – very much more than the opinion of some guy on the internet – and was much more than just “his opinion”.

    My guess is that Bush is trying to throw his weight around, not having to deal with a Democrat controlled Congress before, and will slowly remember that he can’t have everything. If he simply vetos everything he doesn’t like, he risks going to ’08 with the Republicans branded as do-nothings and nay-sayers.

    Keep in mind my McCain-Feingold example was from 2002, when he COULD have had things his own way if he’d really wanted. Punting to the SCOTUS was thus even more reprehensible.

    Which doesn’t matter to him, but it does to his party.

    Judging by his actions, Bush does not really care what happens to the Republican Party.

    An excessive number of vetos by Bush only feed into the idea that the Democrats are trying to fix this country (and the war in Iraq) but are being stymied by the incompetance of the Right.

    Let’s not get carried away here. Bush has vetoes exactly ONE thing in the pas six years (stem cell research). ONE! I don’t see how you can argue that the guy is cautiously avoiding “excessive” use of veto power for fear of partisan backlash when he has only vetoed ONE lousy thing since he took office.

  47. Well, let’s look to the source of the various powers of the three branches of government:

    The President shall, “take care that the laws be faithfully executed.”

    Congress shall have the power, “To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.”

    The powers of the Judiciary shall, “extend to all cases, in law and equity, arising under this Constitution…”

    Articles I, II and III of the US Constitution.

    Your point is really just semantics – if Congress passes a law, and the President executes it, and the Judiciary passes on review, by default, it is Constitutional. If Congress passes a law, and the President executes it (or his veto is overridden by Congress), the law is assumed to be constitutional unless and until the Judiciary holds otherwise.

    Conversely, if a law is held to be unconstitutional, Congress and the President cannot alter that determination without amending the Constitution (See the Dred Scott case). Only SCOTUS can (See Lochner v. New York and its progeny). They can try to pass something that accomplishes the same goal (Communications Decency Act –> Child Online Protection Act etc.), but once SCOTUS has spoken, that decision is final, barring a later decision by SCOTUS, or an amendment to the Constitution.

    The President can refuse to execute a law, and Congress can refuse to provide any funding for it, but neither can declare it unconstitutional in any real way.

    The President absolutely has the power to veto a law because he feels that it would be unconstitutional. And I would agree that he has the duty to do so. But he can also veto it for any other reason. And if his veto is overridden by Congress, his determination that it was unconstitutional is irrelevant.

    In short, legislation passed by Congress and signed by the President is assumed to be constitutional until SCOTUS decides otherwise. Until that point – the legislation is constitutional in that it was passed in accordance with the Constitution, but as to whether the text of the law itself violates the Constitution is unknown.

    I don’t see how you can argue that the guy is cautiously avoiding “excessive” use of veto power for fear of partisan backlash when he has only vetoed ONE lousy thing since he took office.

    Clearly his use of his veto power has been far far below the norm to this point. My point was that if he simply vetos everything he doesn’t like from this point on, which will be a LOT of legislation, there will be consequences in ’08. Whether he cares about that or not is another matter, but there will be consequences to both his legacy and his party.

  48. Here’s the thing: DC rents its buildings and land to the US government, and the Congress is supposed to pay a fair rent. The only problem is that the Congress plays interesting games with the rent and (a) decides how much to pay and (b) sometimes decides not to pay anything because they don’t happen to like the mayor DC’s voters elected.

    Under the circumstances, scaring Congress by giving DC two Senators and their electoral votes wouldn’t hurt.

  49. Tor, Pres. Bush has executed several de facto vetos of legislation or parts thereof by his extensive signing statements to modify or decline to enforce legislation when presented to him for signing.

  50. Tor, my primary point is that your contention (that what the President thinks, in the absence of a SCOTUS opinion, about the constitutionality of a piece of legislation is “nothing more than opinion” of no greater import than the opinion of some schmo on the internet) is contradicted by the law, by actual practice, and by common sense. If the President declines to enforce a law that he considers unconstitutional, that action has real meaning, it is no mere idle opinion.

    As for semantics, what is the law but semantics (the meaning or the interpretation of words, sentences, or language)? =)

    My point was that if he simply vetos everything he doesn’t like from this point on, which will be a LOT of legislation, there will be consequences in ’08.

    Is there any piece of legislation that he “doesn’t like”? Doesn’t seem like it.

  51. Is there any piece of legislation that he “doesn’t like”? Doesn’t seem like it.

    To date, he has threatened to veto:

    The Employee Free Choice Act
    The Supplemental Appropriations Bill which includes a timeline for withdrawal from Iraq
    The Whistleblower Protection Enhancement Act
    The act opening Presidential Records
    The provisions of an Act allowing Airport Screeners to join Unions

    to name a few…

  52. There is no review by the Supreme Court of legislation. They don’t have a check box. Don’t have a veto. For them to declare something unconstitional, a lawsuit must be enjoined (requiring violation of the statute) and then time spent for the case to wend it’s way the the SC. Given that, neither the President nor the Congress should enact laws that they think are unconstitutional and just wait for the Supreme Court to redress them based on legislation.

  53. I was born in DC, raised in suburban Maryland, and have later lived in DC now and then.

    If you don’t like huge roaches, don’t move to Florida. If you want congressional representation, don’t move to D.C.

    Many of the residents of DC were born there, and their families and friends are there.

    John, you may be right that a constitutional amendment is legally required for the residents of the District to have full Congressional representation. But as far as I’m concerned, the contined lack of it is mostly about the fact that many of the residents of DC are black, poor, and Democratic. Home rule has improved things somewhat, but the administration of DC by Congress has a long history of negligence and corruption. It’s all fine to talk about hypothetical situations where the Capitol or the White House is subject to control by some out-of-control state legislature, and those possibilities need to be addressed, but I think some sort of federal reservation can handle that fairly easily.

    Congressional representation, even if it’s by Marion Barry, would be far preferable to the situation today. However noble-minded a Republican senator from Iowa, say, may be, he’s never going to be answerable to the DC residents whose money he controls.

    Size is really a distraction. Is anyone proposing to deny Rhode Island its statehood because it just isn’t as big as any of the other states? Someplace has to be smallest. Why not an area with a sizable population?

  54. John: I agree tha the Constitution does not currently allow DC to have representation, and am annoyed at the Congress’ end run around it.

    That said, I don’t think Congressional representation would be inconsistent with the intent (just with the letter) of the Constitution. The idea is that the district should be under the control of the Federal Government, and that the city government should be responsible to it; representation in Congress is not inconsistent with that. (Statehood, on the other hand, would be).

    I would support a Constitutional amendment to grant DC citizens representation, either directly or through allowing them to vote in Maryland (with Maryland’s consent). I would not support an amendment to grant them statehood.

    TCO: I don’t think that questions of representation of people should be decided on the basis of how those people would be likely to vote, so your notion that DC residents should be denied statehood because of its impact on the political fortunes of one party strikes me as being absurd at best, and a frightening precedent besides.

  55. aphrael: I agree in principle. Except that if Maryland does not want to take them, than I do not think that we should jump through hoops to make a state (or a statelike situation).

Comments are closed.