Legality of D.C. Seat in Congress Debated

Key Committee Vote Today on Adding Representatives From District and Utah

Law professor Viet Dinh, left, and Del. Eleanor Holmes Norton before a House Judiciary Committee hearing yesterday on giving D.C. a vote in Congress. (By Melina Mara -- The Washington Post)

A congressional committee yesterday heard sharply differing opinions on whether a bill giving the District a vote in the House of Representatives is constitutional -- with one scholar predicting it would be swiftly overturned by the courts and others saying it would most likely be upheld.

The hearing came on the eve of a key vote on the bill by the House Judiciary Committee. If the measure is approved today as expected, it will advance to the House floor, where the Democratic leadership has pledged to pass it in the next few weeks. It would then go to the Senate.

The bill attempts to overcome partisan concerns by adding two seats to the House -- one for the District, which is heavily Democratic, and another for the state next in line for an additional representative. That is currently Utah, a Republican stronghold.

Legal doubts are the main issue cited by opponents of the bill, who note that the Constitution limits membership in the House to people from "the several states." Jonathan Turley, a constitutional scholar from George Washington University Law School, told the Judiciary Committee yesterday that such concerns are well-founded.

"The District was created openly, expressly to be a non-state," Turley said, calling the bill "the most premeditated unconstitutional act of Congress in decades."

Defenders of the bill focus on another section of the Constitution, the "District Clause," which gives Congress the power to "exercise exclusive legislation in all cases" involving the city. They also note that Washington has been treated as a state for other purposes, such as regulating alcohol, guns and interstate commerce.

"It's oversimplifying the debate to look at the word 'state' and think you've got the answer," said Richard P. Bress, who was assistant to the solicitor general during the Clinton administration.

Both sides can point to legal scholars to back them up. Several weeks ago, a constitutional expert at the Congressional Research Service produced a report saying that the bill was probably unconstitutional.

On the other side are the American Bar Association and former top government lawyers such as Viet Dinh, an author of the Patriot Act. Appearing at the hearing yesterday, Dinh said the legislation would probably survive a court challenge because judges usually uphold Congress's actions taken under the District Clause.

"The court would defer to Congress," he said.

Turley disagreed. "I truly believe this is a dead letter as soon as it arrives to court," he said. And if the legislation was struck down after a lengthy court fight, he said, it could jeopardize any laws that had been passed in the meantime in which the D.C. or Utah votes were critical.

Reflecting such concerns, Republican legislators are expected to propose an amendment in today's hearing calling for expedited judicial review of the bill. That would clear the way for the case to go directly to the Supreme Court on appeal after a lower court ruled.

"If this new member for D.C. is going to be struck down, we need to know that from the courts sooner rather than later," said a Republican member of the judiciary staff, speaking on condition of anonymity because he was not authorized to comment.

Mayor Adrian M. Fenty (D) attended yesterday's judiciary hearing, as did Del. Eleanor Holmes Norton (D-D.C.) and dozens of D.C. residents wearing "Let DC Vote" stickers. As one of the witnesses at the hearing, Bruce P. Spiva of the advocacy group DC Vote, read his opening remarks, the crowd rose to its feet.

"We are not the constituents of any of you, and therefore can command the full devotion of none of you," Spiva read, as the D.C. residents stood silently for several minutes.

In another development, the board of directors of the Metropolitan Washington Council of Governments voted to back the bill yesterday, reflecting the support of the District and surrounding suburbs. Twenty-two of the representatives present voted in favor, and one, from Loudoun County, abstained.