D.C.'s Bid To Impose Commuter Tax Denied
Court Undercuts Home-Rule Effort

By Eric M. Weiss
Washington Post Staff Writer
Saturday, November 5, 2005

A federal appeals court ruled yesterday that the District cannot impose a commuter tax without the permission of Congress, dealing another blow to the city's quest for home rule.

In a sharply worded opinion, the U.S. Court of Appeals for the D.C. Circuit reinforced the view that the District is a creation of Congress and subject to its will. The ruling was signed by three judges, including John G. Roberts Jr., who had heard the case before he became chief justice of the United States.

The decision has economic and political consequences for the Washington area. Congress barred the District from imposing a commuter tax as part of the Home Rule Act of 1973, a ban that city leaders say has resulted in unfair tax demands on D.C. residents.

At stake is an estimated $1.4 billion that the District hoped to tap each year from residents of Maryland and Virginia who work in the city. The two states sided with the federal government in opposing a lawsuit filed by a coalition of D.C. activists and government leaders that sought to overturn the ban.

A federal judge dismissed the suit last year, and the District hoped to revive it on appeal. Activists expressed hope yesterday that the Supreme Court would consider the case, despite the fact that Roberts participated in the decision.

"Whether D.C. residents will be full-fledged citizens seems to be a case worthy of the Supreme Court," said Walter Smith, leader of DC Appleseed, an advocacy group. He helped argue the city's case.

City leaders maintained that the congressional ban on a commuter tax discriminates against D.C. residents and forces them to shoulder one of the highest tax burdens in the nation. They said that D.C. residents, who do not have a vote in Congress, have been forced to pay the costs of providing city services to 300,000 daily commuters from Maryland and Virginia who do have that vote.

More than 40 communities across the country impose commuter taxes -- none subject to congressional approval.

Attorneys for Virginia, Maryland and the federal government argued that the District, as the seat of national government, is a unique entity and enjoys federal subsidies that other cities do not.

They also warned that a commuter tax would hurt the economies of Virginia and Maryland by draining tax dollars from the states.

The appellate ruling focused on constitutional issues and found the District's arguments lacking.

The decision made reference to a pair of cases, filed several years ago by D.C. officials and activists, that argued that D.C. residents have a legal right to a vote in Congress. Those suits were rejected on constitutional grounds.

The appellate judges said that the commuter tax case "amounts to little more than a collateral challenge to the District's lack of representation" in Congress.

The challenges fall short, they said, because of the "special character" of the District set forth in the Constitution.

"It is beyond question that the Constitution grants Congress exclusive authority to govern the District, but does not provide for District representation in Congress," the judges stated in the ruling.

If District voters do not feel that the situation is fair, "their dispute lies with the plan of the Constitution and the judgment of its Framers," the judges wrote.

"Congress is the District's government," the opinion said, "and the fact that District residents do not have congressional representation does not alter that constitutional reality."

Judges Harry T. Edwards and Judith W. Rogers joined Roberts in the opinion, which was issued "per curiam," or in the name of the court. The judges heard arguments in the case in April.

Michael D. Berman, deputy chief of litigation for the Maryland attorney general's office, said the ruling underscored earlier court decisions that said the District is a creature of Congress and should look to the federal government for any additional money.

Virginia Attorney General Judith W. Jagdmann (R), in a statement, called the decision "an enormous victory" for Virginia commuters.

In the District, leaders issued statements decrying the ruling.

Mayor Anthony A. Williams (D) said "the District would be a stronger city and the region a better place to live if the residents of our city had the same rights and privileges as people in other cities and states."

D.C. Council Chairman Linda W. Cropp (D) said she found it "regrettable that District citizens will still get second-class treatment."

Council member Adrian M. Fenty (D-Ward 4) said he will introduce legislation to call for a citywide referendum on the commuter tax to keep the public's attention focused on the issue.

Del. Eleanor Holmes Norton (D-D.C.) said the ruling could provide a boost to pending congressional legislation that would give the District an $800 million yearly federal payment. She said all congressional representatives in the Washington region support the payment.

"This was a difficult hill to climb," Norton said, referring to the legal appeal.

"I do think it shows the determination of District residents to be treated as equal citizens in every sense of the word."

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