MOTION TO DISMISS OF DEFENDANTS ROBIN H. CARLE AND WILSON LIVINGOOD

Pursuant to Rule 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, and Local Rule 108, defendants Robin H. Carle, Clerk of the United States House of Representatives and Wilson Livingood, Sergeant at Arms of the United States House of Representatives (collectively, "House Officers"), respectfully move for an order dismissing with prejudice all claims asserted against them for the reasons given in the Memorandum of Points and Authorities below.

A proposed order is attached and oral argument is not requested.

MEMORANDUM OF POINTS AND AUTHORITIES

Plaintiffs are 20 citizens of the District of Columbia who claim to be aggrieved by the lack of congressional representation for District residents. Complaint at 66-68, 92. They seek in this action - through various extraordinary forms of declaratory and injunctive relief- to force Congress (which is not a party) to pass, and the President to sign, legislation which either grants statehood to the District of Columbia or reunifies the District with an existing state (unspecified, but presumably Maryland). Complaint at 25-28.

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The named defendants include Ms. Carle and Mr. Livingood, both officers of the House whose duties are circumscribed by statutes and the rules of the House. The only "factual" allegations that pertain to the House Officers are that they have taken actions mandated by, and in compliance with, those statutes and House rules. Specifically, with respect to the Clerk, plaintiffs allege that she (1) transmitted to each state, after the last decennial census, a certification of the number of Representatives to which each state was entitled, Complaint at 79, 114, a responsibility imposed upon the Clerk by 2 U.S.C. 2a(b); [footnote 1: This duty actually was last discharged by a prior Clerk after the 1990 census. Ms. Carle, who only became Clerk in January 1995, will discharge this obligation in January 2001 if she is still the Clerk at that time.] and (2) made a roll of Representatives whose credentials show that they were elected in accordance with the laws of the United States, Complaint at 81, 115, a responsibility imposed upon the Clerk by 2 U.S.C. 26. With respect to the Sergeant at Arms, plaintiffs allege that he has admitted Representatives on the Clerk's roll to the floor of the House, Complaint 85, 116, a responsibility encompassed by 2 U.S.C. 78 and Rules IV and XXXII of the Rules of the House. [footnote 2: For the convenience of the Court, copies of House Rules IV and XXXII are attached.] Plaintiffs do not challenge the validity or constitutionality of 2 U.S.C. 2a(b), 26 or 78 or House Rules IV or XXXII.

Ms. Carle and Mr. Livingood have no legislative authority and no ability to compel the House, much less the Senate, to legislate. See U.S. Const., art. I, 1 ("All legislative Powers shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.").

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I. The Complaint Must Be Dismissed for Lack of Jurisdiction.

A. Plaintiffs Lack Standing to Sue the House Officers.

This Court's jurisdiction is limited by article III, 2, of the Constitution to "cases" and "controversies." Allen v. Wright, 468 U.S. 737, 750 (1984). Justiciable cases and controversies must be "definite and concrete, touching the legal relations of parties having adverse legal interests. . . . admitting of specific relief through a decree of a conclusive character. . . ." Aetna Life Ins. Co. of Hartford Conn. V. Haworth, 300 U.S. 227, 240-241(1937). To satisfy article III, plaintiffs must demonstrate, among other things, that they have standing to sue the House Officers. Article III standing requires:

First. . . an "injury in fact" an invasion of a legally protected interest which is (a) concrete and particularized, . . . and (b) "actual or imminent, not 'conjectural' or 'hypothetical,"' . . Second, there must be a causal connection between the injury and the conduct complained of- the injury has to be "fairly . trace[able] to the challenged action of the defendant and not. th[e] result of] the independent action of some third party not before the court." . . . Third, it must be 'likely," as opposed to merely "speculative," that the injury will be "redressed by a favorable decision."

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61(1992) (citations omitted). In this case, plaintiffs do not have standing to sue the Clerk or the Sergeant at Arms because plaintiffs cannot establish either the second (traceability) or third (redressability) elements of standing. [footnote 3: We assume, for purposes of this motion only, that plaintiffs can demonstrate "injury in fact."]

The "fair traceability" inquiry is "inherently historical." Freedom Republicans Inc.'. FEC, 13 F.3d 412, 418 (D.C. Cir. 1994). It "'turns on the causal nexus between the agency [page 4] action [that is challenged] and the asserted injury."' Humane Society of the United States v. Babbitt, 46 F.3d 93, 100 (D.C. Cir. 1995) (quoting Freedom Republicans, 13 F.3d at 418).

Here, there is no causal nexus between plaintiffs' alleged injury the lack of congressional representation for District residents - and the challenged conduct: i e the Clerk's transmission of apportionment numbers to the states, her maintenance of the roll of Representatives and the Sergeant at Arms' admission of Representatives to the floor of the House. These actions of the House Officers simply have not "caused" plaintiffs' alleged injury. Rather, plaintiffs' alleged injury is caused by factors for which the House Officers bear no responsibility, namely, the structure of the Constitution itself- U.S. Const., art. I, 2, ci. 1 ("The House of Representatives shall be composed of Members chosen. . . by the People of the several States.") (emphasis added); amend. XVII ("The Senate of the United States shall be composed ofvo Senators from each State, elected by the people thereof. .. .") (emphasis added); art. I, 8, ci. 17 (establishing the District as the seat of the federal government separate and apart from the States); amend. XXIII (recognizing District as permanent non-state entity) -and the absence of legislation granting statehood to the District or reunifying the District with an existing state. [footnote 4: While plaintiffs implicitly assume that Congress could constitutionally legislate in the manner plaintiffs desire, there is in fact a substantial argument to the contrary. Legislation granting statehood to the District or reunifying the District with Maryland would appear to be inconsistent with the 23rd Amendment. That amendment, which recognizes the District as a permanent non-state entity and provides for at least three presidential electors for the District, can be nullified only by another constitutional amendment. See generally Adam H. Kurland, Partisan Rhetoric. Constitutional Reality. and Political Responsibility: The Troubling Constitutional Consequences of Achieving D.C. Statehood bv Simple Legislation, 60 Geo. Wash. L. Rev. 475 (1992) ("The Twenty-third Amendment cannot be ignored. If it is to be eliminated a constitutional amendment is required. Accordingly, any D.C. statehood legislation should be made contingent upon the repeal of the Twenty-third Amendment."). In addition, simple reunification legislation of the sort plaintiffs envision would appear to be inconsistent with art. IV, 3, cl. 1, which would require Maryland to consent to any reunification with the District. See Phillips v. Payne, 92 U.S. 130(1876), M'Laughlin v. Janney, 47 Va. 609(1850), and 124 Cong. Rec. 14357-63 (1978) (all describing the 1846 retrocession to Virginia of part of the District of Columbia, including the passage of two bills in the Virginia legislature, the first expressing the Commonwealth's willingness to accept the retrocession, and the second re-annexing, and extending the Commonwealth's jurisdiction to, the retroceded land). Maryland, of course, has been less than enthusiastic about the idea of retrocession. See, e.g., H. Rep. No.103-371, at 18 (1993) ("According to a recent survey, members of the Maryland House of Delegates and Senate overwhelmingly rejected retrocession, in statistical responses, and in anecdotal comments included in the survey.").]

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The "redressability" inquiry, while related to traceability, is "quintessentially predictive." Freedom Republicans, 13 F.3d at 418. It "centers on the causal connection between the asserted injury and judicial relief." Id. Redressability is not established where a favorable outcome for plaintiffs "depends on the unfettered choices made by independent actors not before the courts ad whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict." Asarco Inc. v. Kadish, 490 U.S. 605, 615 (1989).

This is precisely such a case. As noted above, the Clerk and the Sergeant at Arms are merely officers of the House. They have no ability to compel the House or Senate to legislate, let alone any ability themselves to grant statehood to the District or reunify the District with another state. The relief plaintiffs seek requires action by Congress, a party not before the Court, and a party "whose exercise of broad and legitimate discretion" this Court may not "presume to control or predict." See Parts I.B., I.C. and I.D., infra. Moreover, to the extent plaintiffs seek reunification with Maryland, that would require Maryland's consent. See note 4, [page 6] supra. Like the Congress, Maryland is a party not before the Court, and a party "whose exercise of broad and legitimate discretion" this Court may not "presume to control or predict."

Accordingly, plaintiffs lack standing to sue the House Officers, and their claims against the House Officers must be dismissed for lack of jurisdiction.

B. The Court Is Barred by the Separation of Powers Doctrine from Granting the Relief Plaintiffs Seek.

Plaintiffs' claims must also be dismissed because this Court lacks the authority to grant the relief plaintiffs seek: extraordinary forms of injunctive relief designed to shut down the Congress, and significantly restrict the President's exercise of his constitutional authority, in order to force Congress to pass, and the President to sign, certain legislation that plaintiffs desire. In particular, the separation of powers doctrine constrains the Court from directly compelling Congress to pass (and the President to sign) legislation. See, e.g., McCray v. U.S., 195 U.S. 27, 57 (1904) ("[T]he judicial cannot prescribe to the legislative department of the government limitations upon the exercise of its acknowledged powers."). [footnote 5: See also Keener v. Congress of the United States, 467 F.2d 952, 953 (5th Cir. 1972) ("no cause of action lies to compel Congress to exercise its discretion to legislate on a purely political question"); Adams V. Richardson, 871 F. Supp. 43, 45 (D.D.C. 1994) (dismissing complaint challenging Congressman's "legislative discretion"). See generally Kilbourn v. Thompson, 103 U.S. 168, 190-02 (1880).] And if the Court cannot directly compel Congress to legislate or the President to sign legislation, it certainly cannot do so indirectly by holding Congress (and the country) hostage until Congress enacts, and the President signs, legislation satisfactory to plaintiffs. [footnote 6: Plaintiffs' request that the Court enjoin the Clerk and the Sergeant at Arms from recognizing and admitting representatives, Complaint at 27-28, is constitutionally impermissible for the additional reason that it would interfere with the House's exclusive authority to "be the Judge of the Elections, Returns and Qualifications of its own Members." U.S. Const., art. I, 5, cl. 1. See generally Reed v. County Commissioners, 277 U.S. 376, 388 (1928).]

C. Plaintiffs' Claims Against the House Officers Are Barred by the Speech or Debate Clause of the Constitution.

Plaintiffs' claims against the House Officers are also barred by the Speech or Debate Clause of the Constitution. U.S. Const., art. I, 6, ci. 1 ("[F]or any Speech or Debate in either House, they [the Senators and Representatives] shall not be questioned in any other place.").

The central purpose of the Speech or Debate Clause

is to insure that the legislative function the Constitution allocates to Congress may be performed independently. . . . [T]he "central role" of the Clause is to "prevent intimidation of legislators by the Executive and accountability before a possibly hostile judiciary. .

Eastland v. United States Servicemen's Fund, 421 U.S. 491, 502 (1975) (quoting Gravel V. U.S., 408 U.S. 606, 617 (1972)). It protects Members of Congress. as well as Congress officers and employees, Gravel 408 U.S. at 618, from being questioned about, or prosecuted (civilly or criminally) for, any activities that fall within the "sphere of legitimate legislative activity." Eastland, 421 U.S. at 501. The "sphere of legitimate legislative activity" includes all activities that are

"an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House."

[page 8] Id. at 504 (quoting Gravel, 408 U.S. at 625). The Supreme Court has "[w]ithout exception... read the Speech or Debate Clause broadly to effectuate its purposes." Eastland, 421 U.S. at 501.

The Speech or Debate Clause protects activities well beyond just words spoken in debate. Gravel, 408 U.S. at 617 (cases 'thave plainly not taken a literalistic approach in applying the privilege"). It clearly immunizes Congress itself against plaintiffs' effort here to force Congress to legislate. , e.g., Cato v. U.S., 70 F.3d 1103, 1110 (9th Cir. 1995); Quillin v. U.S., 589 F. Supp. 830, 831 (N.D. Iowa 1984) ("[T]he Speech and Debate Clause. . . bars judicial inquiry in regard to the legislature's failure to enact remedial legislation.").

Moreover, the Speech or Debate Clause clearly applies to conduct of the Clerk and the Sergeant at Arms that is within the "sphere of legitimate legislative activity." See, e.g., Brownin v. Clerk, 789 F.2d 923, 929 (D.C. Cir.), cert. denied, 479 U.S. 996 (1986) (dismissing suit against Clerk on Speech or Debate grounds); CNN v. Anderson, 723 F. Supp. 835, 841 (D.D.C. 1989) (same); Consumers Union of United States Inc. V. Periodical Correspondents' Association, 515 F.2d 1341, 1350 (D.C. Cir. 1975), cert. denied, 423 U.S. 1051(1976) (dismissing suit against House and Senate Sergeants at Arms on Speech or Debate grounds). [footnote 7: See also National Association of Social Workers V. Harwood, 69 F.3d 622, 629 (1St Cir. 1995) (dismissing on grounds of legislative immunity - which is "similar in scope and object to the immunity enjoyed by federal legislators under the Speech or Debate Clause" an action against the Doorkeeper of the Rhode Island House of Representatives).]

In the Consumers Union case, Consumers Union sued the House and Senate Sergeants at Arms (among others) challenging their refusal to admit a Consumer Reports representative to the periodical press galleries of the House and Senate. The Court held the claims nonjusticiable under the Speech or Debate Clause because the Sergeants at Arms were charged under House [page 9] and Senate rules with maintaining order in their respective chambers, a matter the Court held to be an integral part of the legislative process:

[T]o the extent that they participated in the administration of the galleries [the Sergeants at Arms] . . . were enforcing internal rules of Congress validly enacted under authority specifically granted to the Congress and within the scope of authority appropriately delegated by it. They were engaging in a sense in acts generally done in relation to the business before Congress. . . "an integral part of the deliberative and communicative processes." They fell within "the sphere of legislative activity."

515 F.2d at 1350 (quoting Gravel, 408 U.S. at 625, and Eastland, 421 U.S. 491).

Consumers Union is dispositive of the claim against the Sergeant at Arms as well as the claim against the Clerk that rests on her maintenance of the roll of Representatives. Like the action of the Sergeants at Arms at issue in that case, the action of the Sergeant at Arms that is challenged here admission of Representatives to the floor of the House - is taken pursuant to validly enacted House Rules that relate to maintenance of order on the floor of the House. This action of the Sergeant at Arms, and Clerk's maintenance of the roll of Representatives who may be admitted to the House floor by the Sergeant at Arms, are as much "an integral part of the deliberative and communicative processes" of the House as the Sergeants at Arms' control of access to the periodical press galleries which Consumers Union held to be protected. [footnote 8: Browning is also instructive here. In that case, the Court held that a decision by the Clerk to discharge a subordinate who was an official House reporter was privileged from judicial scrutiny under the Speech or Debate Clause. In so holding, the Court, after discussing the scope and purpose of the Clause at some length, determined that the proper "standard for determining Speech or Debate Clause immunity is best expressed as whether the employee's duties were directly related to the due functioning of the legislative process." 789 F.2d at 929. The Court concluded that the reporter's duties were directly related to the legislative process because of her "integral role" in recording committee and floor proceedings. Id. Obviously, the Sergeant at Arms' control of admission to the floor of the House, and the Clerk's maintenance of the roll of Representatives who may be admitted to the floor, are as much related to the "due functioning of the legislative process" as are the duties of a legislative reporter.]

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The claim against the Clerk that rests on her transmission of apportionment numbers to the states is barred by the Speech or Debate Clause for a different reason. In Gravel, the Supreme Court held that the Speech or Debate Clause protects, in addition to legislative activities, actions that relate to "other matters which the Constitution places within the jurisdiction of either House." 408 U.S. at 625. The Clerk's transmission of apportionment numbers to the states is part of the census taking power which the Constitution vests in the Congress. U.S. Const., art. I, 2, cl. 3. That action, therefore, is also protected by the Speech or Debate Clause.

For all these reasons, the House Officers are immune from plaintiffs' claims under the Speech or Debate Clause of the Constitution.

D. Plaintiffs' Complaint Is Barred by the Political Question Doctrine.

Finally, this Court lacks jurisdiction because plaintiffs' effort to force Congress to pass, and the President to sign, legislation which either grants statehood to the District of Columbia or reunifies the District with an existing state raises inherently political questions that are not justiciable. A controversy is a nonjusticiable political question where, among other things, there is "a textually demonstrable constitutional commitment of the issue to a coordinate political department." Baker V. Carr, 369 U.S. 186, 217 (1962).

In Nixon V. U.S., 506 U.S. 224 (1993), for example, the Supreme Court applied the political question doctrine to a claim that the Senate could not constitutionally "try" an [page 11] impeachment case by delegating certain functions to a committee of Senators. Noting that the Constitution imposes specific requirements with respect to impeachment proceedings, the Court held that the courts were barred by the political question doctrine from consideration of any further requirements alleged to be implicit in the word "try" in the Impeachment Clause. See id. at 238 ("[W]ord 'try' in the Impeachment Trial Clause does not provide an identifiable textual limit on the authority which is committed to the Senate.").

This case is analogous. The Constitution vests Congress with all legislative authority generally, U.S. Const., art. I, 1, and with plenary legislative authority over the District of Columbia in particular. Id art I 8, cl. 17. The authority to legislate necessarily encompasses the authority not to legislate. While the Constitution limits in many different ways the manner in which Congress can exercise its legislative authority when it chooses to legislate, it imposes no limitations on Congress' authority not to legislate. That is, the choice whether to legislate or not to legislate rests solely with Congress, and that choice is not constitutionally constrained or limited in any manner. Accordingly, plaintiffs' effort to compel Congress to legislate must fail because, as in Nixon, it is not based on any "identifiable textual limit" on Congress' authority to legislate.

Moreover, with respect specifically to plaintiffs' republican form of government claim, Complaint at 88-118, the Supreme Court and the lower courts have repeatedly held "that challenges to congressional action on the ground of inconsistency with [article IV, 4 of the Constitution] present nonjusticiable question." Baker V. Carr, 369 U.S. at 224. [footnote 9: See, e.g., City of Rome V. U.S., 446 U.S. 156, 182 n.17 (1 980) ("We do not reach the merits of the appellants' argument that the [Voting Rights Act of 1965] violates the Guarantee Clause, Art. IV, 4, since that issue is not justiciable."); Ohio ex rel. Davis V. Hildebrant, 241 U.S. 565, 569-70 (1916); Georgia V. Stanton, 73 U.S. 50 (1867) (refusing to adjudicate claim of civil government of Georgia that sought to enjoin provision of Reconstruction Acts providing for military governments in former Confederate states); Texas V. U 5 106 F.3d 661, 666-67 (5th Cir. 1997) (state's claim that federal immigration policy violated Guarantee Clause of Constitution held nonjusticiable); California V. U.S., 104 F.3d 1086, 1091 (9th Cir. 1997) (same); Padavan V. U.S., 82 F.3d 23, 27-28 (2d Cir. 1996) (same); Chiles V. U.S., 69 F.3d 1094, 1097(llthCir. 1995) (same); cert. denied, 517 U.S. 1188(1996). Cf. New York V. U.S., 505 U.S. 144, 185 (1992) (suggesting, without deciding, that "perhaps not all claims under the Guarantee Clause present nonjusticiable political questions").]

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Indeed, this Court long ago concluded, in dismissing a challenge by District residents to the constitutionality of certain D.C. Code provisions, that "questions arising under [article IV, 4] of the Constitution 'are political, not judicial, in character, and thus are for the consideration of Congress and not the courts."' Hobson V. Tobriner, 255 F. Supp. 295, 299 (D.D.C. 1966) (quoting State of Ohio ex rel. Bryant V. Akron Metropolitan Park Dist., 281 U.S. 74, 80 (1930)). The Court emphasized that the Constitution invests Congress with "exclusive" jurisdiction over the District of Columbia (under article I, 8, cl. 17 of the Constitution), and that the plaintiffs were seeking a "political remedy beyond the power of the Court to grant." 255 F. Supp. at 300.

For all these reasons, plaintiffs' claims against the House Officers raise nonjusticiable political questions and must, therefore, be dismissed for lack of jurisdiction.

II. Plaintiffs' Claims Must Be Dismissed for Failure to State a Claim.

A. The Republican Form of Government Claim.

Count Two of the Complaint alleges that plaintiffs have been denied their right to a republican form of government under article IV, 4 of the Constitution (the "Guarantee Clause"), which provides, in pertinent part, that "[the United States shall guarantee to every [page 13] State in this Union a Republican Form of Government." Complaint at 88-118. As noted above, this claim is a nonjusticiable political question. However, even if it were not, the claim should still be dismissed for failure to state a claim for the following reasons.

First, article IV, 4 expressly applies only to the "states," as the Courts have so held, [footnote 10: See, e.g., Johnson V. Genesee Countv, 232 F. Supp. 567, 570 (E.D. Mich. 1964) (Article IV "is a guarantee to the states, as such."). also Downes V. Bidwell, 182 U.S. 244, 279 (1901) (Congress not required to establish republican form of government in territories before they become states); State ex rel. Porterie V. Smith, 166 So. 72, 82 (La. 1936) (Guarantee Clause does not apply to "the sstems of local governments for the municipalities, counties, and parishes of a state").] and the records of the Constitutional Convention so confirm. [footnote 11: The convention records reflect that the purpose of the Guarantee Clause was to ensure the stability and autonomy of the existing state governments, and to ensure that the federal government would not interfere with those state governments. See Deborah Jones Merritt, The Guarantee Clause and State Autonomy: Federalism for a Third Century, 88 Colum. L. Rev. 1, 29-35 (1988). From the very first, the concept of the guarantee was limited to the states. Specifically, the Virginia Plan, which was presented to the Convention in May 1787 and contained the first mention of the guarantee, limited the guarantee to the states. See 1 The Records of the Federal Convention of 1787, at 22 (Max Farrand, ed., Yale Univ. Press 1974). (While the Virginia Plan would have had the federal government guarantee the territorial integrity, as well as the republican form of government, of the states, the Members of the Convention objected to the reference to territory and deleted it. Id. at 206.) Moreover, while there was significant debate, during both the Convention and the ratification process, about the meaning of the guarantee, at no time was any suggestion made that the guarantee would apply to anything other than the "states" as such.] The District of Columbia is not a state. [footnote 12: See generally Palmore V. U.S., 411 U.S. 389, 395 (1973) ("The District of Columbia is constitutionally distinct from the States."); Texas V. White, 74 U.S. 700, 721 (1869); Hepburn and Dundas v. Ellzev, 6 U.S. 445,452 (1805) ("word state is used in the constitution as designating a member of the union" and excludes the District of Columbia); Grether V. Wright, 75 F. 742, 757 (6th Cir. 1896).] Therefore, the Guarantee Clause does not apply to it. As the District of Columbia Court of Appeals recently held, "[art. IV, 4] applies to the states and cannot be read to restrict the [page 14] power of Congress to legislate for the District . . . ." Darby v. U.S.. 681 A.2d 1156, 1158 (D.C. 1996). See also U.S. V. Cohen, 733 F.2d 128, 146 (D.C. Cir. 1984) (Mikva, J., concurring) (District residents are United States citizens, but "may not be entitled to all the protections of a 'Republican form of Government'. . .").

Second, even if the District were a "state" for purposes of the Guarantee Clause, plaintiffs' claim would still fail because art. IV, 4 only guarantees that state governments will be republican in form. It does not guarantee to the people of the states (or the District) participation in the federal government. See, e.g., Forsyth V. City of Hammond, 166 U.S. 506, 59 (1897); Bates V. Jones, 131 F.3d 843, 858-59 (9th Cir. 1997) (Rymer, J., concurring), cert. denied, 118 5. Ct. 1302 (1998) (Article IV gives citizens the right "to have themselves represented in the legislative branch of their state government by citizen-legislators.") (emphasis added).

For these reasons, Count Two of the Complaint must be dismissed for failure to state a claim.

B. The Equal Protection Claim.

Count One of the Complaint asserts that the absence of legislation either granting statehood to the District of Columbia or reunifying the District with an existing state denies plaintiffs the equal protection of the laws. Specifically, plaintiffs say they are denied equal protection because they lack congressional representation while the citizens of unspecified federal enclaves have congressional representation in the states in which the federal enclaves are located, Complaint at 47-48, and because the residents of that portion of the District retroceded to Virginia in 1846 have congressional representation. Id. at 56-58. This [page 15] argument is frivolous and patently insubstantial for several reasons.

First, the function of the equal protection guarantee is to permit courts to measure the validity of classifications actually drawn by legislatures. See, e.g., Parham v. Hughes, 441 U.S. 347, 358 (1979). Here, plaintiffs have not challenged any statutes that affect federal enclaves or the statute that retroceded a portion of the District to Virginia. Instead, they challenge the absence of legislation applicable to them in an effort to force Congress to legislate. We are aware of no precedent that permits the equal protection clause to be misused in this manner. Indeed, if the law were as plaintiffs suppose, equal protection challenges to Congress' failure to legislate would collide with the separation of powers doctrine, the Speech or Debate Clause and the political question doctrine, all of which prohibit the judiciary from compelling Congress to legislate. See Parts I.B., I.C. and I.D., supra. [footnote 13: Moreover, and in any event, the equal protection clause simply does not require Congress to legislate congressional representation for District residents (assuming for the sake of argument that it could do so), merely because residents of federal enclaves and that portion of the District retroceded to Virginia in 1846 have congressional representation. See Railway Express Agency Inc. v. New York, 336 U.S. 106, 110 (1949) ("It is no requirement of equal protection that all evils of the same genus be eradicated or none at all.").]

Second, even if plaintiffs could challenge the absence of legislation on equal protection grounds, they could not succeed here. The class of District of Columbia residents is not a suspect class" for equal protection purposes; thus any challenge to the absence of legislation beneficial to the class of D.C. residents would only need to satisfy the lowest level of equal protection scrutiny (the rational basis test). See Cohen, 733 F.2d at 136. Clearly, there is a rational basis for Congress to distinguish between the District (by its failure to legislate in the manner plaintiffs desire) on the one hand, and federal enclaves and that portion of the District [page 16] retroceded to Virginia, on the other hand, as we now show.

1. Federal Enclaves. With respect to federal enclaves, we note first that although plaintiffs have asserted generally that 'Congress . . . took affirmative steps to attenuate if not terminate its exclusive jurisdiction or plenary power over all federal enclaves where any person resides," Complaint at 46, they have not identified (or challenged) any such statute. More particularly, plaintiffs have not identified any federal statute that actually purports to convey congressional voting rights on the residents of any federal enclave. The right to vote in congressional elections is ordinarily a matter of state law as circumscribed by the requirements of the Constitution See e.g., Evans V. Cornman, 398 U.S. 419 (1970). Accordingly, the premise of this aspect of plaintiffs' equal protection claim - that Congress itself has bestowed congressional voting rights on residents of federal enclaves appears to be incorrect.

Furthermore, the Supreme Court has held explicitly that lands acquired by the United States do not cease to be part of the states from which the land is acquired, and that residents of such enclaves do not cease to be citizens of the states in which the enclaves lie. Evans, 398 U.S. at 421-22 (rejecting argument that Maryland could deny vote to residents of federal enclave in Montgomery County); Howard v. Commissioners of Louisville, 344 U.S. 624, 626-27 (1953) (rejecting argument that City of Louisville could not tax residents of federal enclave within city limits). On the other hand, when Maryland ceded the land that is now the District of Columbia to the United States, it "forever ceded and relinquished [the land] to the congress and government of the United States," including "full and absolute right, and exclusive jurisdiction." Laws of Maryland, ch. XLV (Dec.19, 1791). As this Court has previously held, 'the effect of [this] cession upon individuals [who resided on the ceded land] was to terminate their state [page 17] citizenship and the jurisdiction of the state governments over them." Hobson, 255 F. Supp. at 297. [footnote 14: See also Reilly V. Lamar, 6 U.S. 344, 356-57 (1805) ("By the separation of the district of Columbia from the state of Maryland, complainant ceased to be a citizen of that state, his residence being in the city of Washington at the time of that separation.").]

Therefore, given the very considerable constitutional differences between the District of Columbia and federal enclaves, it is clearly rational for Congress to treat them differently.

2. The Retroceded Portion of the District. With respect to the retroceded portion of the District, plaintiffs seem to assert that Congress' decision more than 150 ago years to retrocede a small portion of the District to Virginia - at the request of the residents of that portion and with the consent of the State of Virginia - denies plaintiffs the equal protection of the laws today. This is nonsense. It is perfectly rational for Congress to conclude today (by virtue of its failure to act) that retrocession of the District of Columbia to Maryland is inappropriate in light of, among other things, the fact that the District has not been part of Maryland for more than 200 years; the unique social, political and economic factors surrounding the 1846 retrocession; the ratification of the 23rd Amendment in 1961; Maryland's continued unwillingness to accept the District; and the well-established place of the capital city in our national life. [footnote 15: More than 100 years ago, Judge (later Chief Justice) Taft described the character of the District of Columbia as follows: "It was meet that so powerful a sovereignty should have a local habitation the character of which it might absolutely control, and the government of which it should not share with the states in whose territory it exercised but a limited sovereignty, supreme, it is true, in cases where it could be exercised at all, but much restricted in the field of its operation. The object of the grant of exclusive legislation over the district was therefore, national in the highest sense, and the city organized under the grant became the city, not of a state, not of a district, but of a nation." Grether, 75 F. at 757.]

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As Senator Kennedy observed, in opposing the idea of retrocession 20 years ago:

The Library of Congress analysis [of the 1846 retrocession which Sen. Kennedy requested] . . . indicates that the retrocession was directly affected by the political, social and economic factors of the time. .

Seen in historical perspective, the retrocession of the Virginia portion of the District in 1846 is not a precedent for action today on the issue of voting representation in Congress for the District of Columbia.

Congress overwhelmingly recognized in 1961 that there was no justification for tying the District to Maryland for purposes of voting in Presidential elections. There is no justification today for tying the District to Maryland for purposes of voting in Senate and House elections, and there is no real likelihood that the State of Maryland would accept such an arrangement, even if Congress tried to attempt it.

124 Cong. Rec. 14357 (978) (statement of Sen. Kennedy). The same thing is true today.