What a State We're In

Rich Tucker
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Posted: Apr 03, 2009 11:55 AM
What a State We're In

Maybe bumper sticker-type slogans do work. One has, perhaps, swayed Attorney General Eric Holder.

Holder has lived in the District of Columbia for more than 20 years, and must be as tired as the rest of us are of seeing the city’s idiotic “Taxation without Representation” license plates. The District is amazingly well represented -- indeed, better represented than it would be if it were, in fact, a state. According to a 2006 report from the Tax Foundation, D.C. gets back $6.64 for every $1 it pays in federal taxes -- an amazing rate of return.

New Mexico is the actual state that does the best in this regard, and it gets back a mere $2 for every $1 paid in. Meanwhile California, despite being very well represented with 53 members of Congress, loses money, getting back only 79 cents of every dollar it pays in federal taxes.

It makes sense that lawmakers, while they aren’t elected by District residents, would want to spend taxpayer money on D.C. The Founding Fathers carved out the District in part because they didn’t want the national government to be located in -- and thus possibly dominated by -- a particular state. So hundreds of members of Congress are all looking out for D.C. in various ways, instead of the District having one lone representative crying out in the wilderness.

In any event, many members of Congress want to give D.C. representation in their august body, so they’ve drawn up a bill that would create two new seats -- one for the District (which would elect a Democrat) and one for Utah (which would presumably elect a Republican and thus maintain the current congressional balance).

One minor problem: Such a measure is unconstitutional.

Don’t take my word for it; ask the experts. “Justice Department lawyers concluded in an unpublished opinion earlier this year that the historic D.C. voting rights bill pending in Congress is unconstitutional,” The Washington Post reported in a front-page story April 1. And it was no April Fool’s joke.

This was the conclusion of the Obama administration Office of Legal Counsel, by the way. They’d reached the exact same conclusion as the supposed partisan hacks in the Bush OLC had two years earlier.

That’s no surprise, since the facts in the case are pretty simple. Our Constitution says members of the House of Representatives must be chosen “every second year by the people of the several states.” Since D.C. isn’t a state, it can’t choose representatives.

We could amend the Constitution, or cede the District back to Maryland (Virginia took back its portion of D.C. before the Civil War) and thus allow its residents to vote as Free Staters. But it would seemingly be unconstitutional for Congress to simply vote to allow representation, just as they can’t pass a law “abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble,” etc.

Except that Eric Holder disagrees. “The attorney general weighed the advice of different people inside the department, as well as the opinions of legal scholars, and made his own determination that the D.C. voting rights bill is constitutional,” Justice spokesman Matthew Miller explained.

Well, he may have weighed the advice, but only to reject the advice he weighed. Instead, the Post reports, Holder “sought the opinion of the solicitor general’s office, where lawyers told him that they could defend the legislation if it were challenged after its enactment.”

That, of course, is a completely different issue. There are plenty of things that could be defended. Lawyers, after all, are trained to argue both sides of a case. The question Justice Department lawyers were originally asked was should they be asked to defend it. And appointees from both sides of the political spectrum agreed: no.

Holder’s decision, overruling his own employees, seems to contradict what he said just months ago. “We don’t change OLC opinions simply because a new administration takes over,” Holder told senators during his confirmation hearing. “The review that we would conduct would be a substantive one and reflect the best opinions of probably the best lawyers in the department as to where the law would be, what their opinions should be. It will not be a political process, it will be one based solely on our interpretation of the law.”

Maybe he should just admit he’s tired of being stuck in traffic behind “Taxation without Representation” license plates and wants to allow the city to go back to its old “Celebrate & Discover” version. While such an explanation might seem inane, it makes about as much sense as Holder’s stated position on D.C. representation.