PRESIDENT CLINTON'S MOTION TO DISMISS

Defendant William Jefferson Clinton, president of the United States, hereby moves to dismiss the above-captioned lawsuit pursuant to Rules 12(b)(1) and 12(b)(E) of the Federal Rules of Civil Procedure. In support of this motion, defendant respectfully refers the Court to his accompanying memorandum of points and authorities.

PRESIDENT WILLIAM JEFFERSON CLINTON'S MEMORANDUM IN SUPPORT OF HIS MOTION TO DISMISS PLAINTIFFS' CLAIMS

PRELIMINARY STATEMENT

The District of Columbia, since its constitutional and statutory conception in 1791, has never been recognized as a State under Article I 2, of the Constitution, as modified by the Fourteenth Amendment, which apportions Representatives of the United States House of Representatives "among the several States according to their respective numbers." Plaintiffs in this lawsuit, who are comprised of twenty citizens of the District of Columbia, ask the Court to change this historical and constitutional fact, and to issue declaratory and injunctive relief that would cause the District either to be recognized as a "sovereign State" or to be "unified" with a currently-existing sovereign State. Plaintiffs contend that such relief is necessary in order that they be accorded their alleged constitutional right to be represented in the House of Representatives and the United States Senate.

Plaintiffs' alleged entitlement to be represented in Congress and their remarkable prayer for relief are based on two [page 2] claims. They assert, first, that they are being denied their right to the equal protection of laws under the Fifth Amendment because other United States citizens who reside in "federal enclaves" across the country are represented in Congress, whereas they, as citizens of the District of Columbia, are not. See Complaint, Count One, 37-87. Plaintiffs further assert that President Clinton (apparently meaning, in reality, his predecessors) has contributed to this purported Fifth Amendment injury by having allegedly transmitted to Congress "the results of decennial censuses" on which the apportionment of congressional districts is based, and by failing to "account[] for and include[] the population of the District of Columbia for purposes of apportionment." Id. 74-77.

Plaintiffs' second claim (Count Two of the Complaint) is brought pursuant to the Guarantee Clause, Article IV, 4, of the Constitution, which provides that the United States shall "guarantee to every State in this Union a Republican Form of Government." Plaintiffs contend that the government of the District of Columbia "does not constitute a republican form of government, because [its] every action * * * is subject to absolute review and veto by the Congress, which] * * * is not elected by the citizens of the District of Columbia." Id., 91-92. Plaintiffs further contend that President Clinton has contributed to this alleged injury by having signed into law various, unidentified "Acts, Mandates, and resolutions of Congress, which are antithetical to the principles of a [page 3] republican form of government," and by having additionally failed to include the District of Columbia in any decennial census for purposes of apportioning congressional districts. Id., 112-113.

Although plaintiffs' complaint is without merit on its face, each of the above claims, as brought against President Clinton, [footnote 1: Co-defendants, the Clerk and the Sergeant of Arms of the United States House of Representatives, and the District of Columbia Financial Responsibility and Management Assistance Authority, are represented by separate counsel, and the President makes no representations herein on their behalf.] should be dismissed at the outset for lack of subject matter jurisdiction. It is established law that questions arising under the Guarantee Clause are not subject to judicial resolution and are reserved, instead, for the consideration of the Congress, and Count Two of the complaint should be dismissed under the "political question" doctrine.

Plaintiffs, moreover, lack Article III standing to bring these claims against the President under either under the Guarantee Clause or the Fifth Amendment. Plaintiffs cannot possibly show, as they are required to do at an irreducible minimum in order to establish standing, that their alleged injuries are redressable by the relief sought. The Supreme Court has recently reaffirmed the principle that the judiciary lacks authority under the Constitution to grant injunctive relief against the President regarding the performance of his official, non-ministerial, duties. This prohibition, which is premised on [page 4] separation of powers principles, applies here. Indeed, plaintiffs' requested relief goes to the very core of the President's executive functions and would, quite literally, require that he violate existing laws -- not at issue in this lawsuit -- that establish the government of the District of Columbia and that govern the apportionment of congressional districts among the respective States. We are aware of no instance in which a court has issued an injunction purporting to require the President of the United States to refrain from faithfully executing any law duly enacted by Congress.

In addition, even if the Court had jurisdiction over plaintiffs' claims, which it plainly does not, they can be quickly disposed of on their merits. The District of Columbia, pursuant to the plain language of the Constitution itself and nearly two centuries of precedent and practice, has never been recognized as a State under Article I, 2, and is, accordingly, excluded from the apportionment of Representatives among the several States. However unjust or unequal plaintiffs believe the District's status to be in relation to the several States or to other "federal enclaves," they cannot succeed on their Fifth Amendment claim, which ultimately rests on the groundless proposition that Article I, 2, itself is unconstitutional.

For like reasons, plaintiffs' claim under the Guarantee Clause is just as plainly without substance. The Constitution, under Article I, 8, cl. 17, vests Congress with plenary authority over the District of Columbia. Although plaintiffs [page 5] apparently believe that such authority is unjust because it subjects the government of the District of Columbia to "absolute review and veto by the Congress" (Complaint, 91), it can hardly be said that Congress' exercise of this authority is unconstitutional, as plaintiffs contend. At bottom, because the changes to the District of Columbia's constitutional status that plaintiffs ask for are beyond the judiciary's authority to grant -- and must instead be sought in the political arena -- the President respectfully requests that their claims for relief be dismissed.

ARGUMENT

I. PLAINTIFFS' CLAIMS MUST BE DISMISSED FOR LACK OF SUBJECT MATTER JURISDICTION

Plaintiffs' Guarantee Clause claim is subject to dismissal under the political question doctrine. It has long been held that questions arising under this provision of the Constitution "are political, not judicial, in character, and thus are for the consideration of the Congress and not the courts." State of Ohio ex rel. Bryant v. Akron Park District, 281 U.S. 74, 78 (1930). See Baker v. Carr, 369 U.S. 186, 226-27 (1962) (although "the appellants might conceivably have added a claim under the Guarantee Clause * * * any reliance on that clause would be futile."); City of Rome V. United States, 446 U.S. 156, 182 n.17 (1980) ("We do not reach the merits of the appellants' argument that the Act violates the Guarantee Clause, Art. IV, 4, since that issue is not justiciable."). See , Hobson v. Tobriner, 255 F. Supp. 295, 299 (D.D.C. 1966) (dismissing as non-justiciable [page 6] a Guarantee Clause challenge to the D.C. Code). [footnote 2: More recently, the Supreme Court suggested in dicta that perhaps not all claims under the Guarantee Clause are nonjusticiable. New York v. United States, 505 U.S. 144, 185 (1992). Notably, the Court did not state under what circumstances, if any, it might ever be appropriate to reach the merits of such a claim, and expressly declined to reach this issue. Id. Accordingly, although the Supreme Court might possibly choose in the future to modify its existing holdings regarding the nonjusticiability of a Guarantee Clause claim, there is no substantial present basis to argue to the contrary. See State of California v. United States, 104 F.3d 1086, 1091 (9th Cir.), cert. denied, 118 5. Ct. 44 (1947)("Supreme Court decisions have traditionally found that claims brought under the Guarantee Clause are nonjusticiable. * * * California's claims under the Guarantee Clause * * * raise nonjusticiable political questions.").]

Plaintiffs, moreover, lack standing to bring claims against the President under the either the Guarantee Clause or the Fifth Amendment. In order for the Court to assume jurisdiction over their claims, plaintiffs are required to establish that, in addition to other factors, their alleged injuries are can be redressed by the relief sought. Allen v. Wright, 468 U.S. 737, 751 (1984); Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (in order to establish standing, "it must be likely, as -opposed to merely speculative, that the injury will be redressed by a favorable decision."). It is impossible for plaintiffs to make this showing, as the relief they seek is beyond the Court's authority to grant, and would furthermore violate existing laws that are not at issue in this lawsuit.

Plaintiffs bring suit in this case against the President himself, who has always been accorded significantly greater immunity from judicial injunction than his Cabinet officers or [page 7] other inferior Executive officials. This principle was recently reaffirmed by the Supreme Court, which, although leaving open the question whether "the President might be subject to a judicial injunction requiring the performance of a purely 'ministerial' duty," held that "'this court has no jurisdiction of a bill to enjoin the President in the performance of his official duties.'1' Franklin V. Massachusetts, 505 U.S. 788, 802-803 (1992) (plurality), quoting Mississippi v. Johnson, 71 U.S. (4 Wall.) 475, 498-99 (1867). See id. at 826 (Scalia, J., concurring) ("We have long recognized that the scope of Presidential immunity from judicial process differs significantly from that of Cabinet or inferior officers."). See Swan v. Clinton, 100 F.3d 973, 978 (D.C. Cir. 1996) ("the President, like Congress, is a coequal branch of government, and for the President to 'be ordered to perform particular executive * * * acts at the behest of the judiciary,' * * * at best creates an unseemly appearance of constitutional tension and at worst risks a violation of the constitutional separation of powers."), quoting Franklin, 505 U.S. at 827 (Scalia, J., concurring). [footnote 3: The court in Mountain State Legal Foundation v. Glickman, 92 F.3d 1228 (D.C. Cir. 1996), noted that there exists some tension between cases such as Franklin, in which the Supreme Court considered the "legal limits on redress [as] part of the calculation of redressability for standing purposes," and other cases decided by the D.C. Circuit, in which "we unequivocally declared that the redressability inquiry was simply whether, if plaintiffs secured the relief they sought, it would redress their inquiry." Id. at 1233 (citations omitted). For purposes of the issue specifically before it, the court resolved this tension by noting that, as opposed to cases such as Franklin, in which the "impediment to redress stem[med] * * * from a defect in the court's institutional power to order a specific remedy," no court "has treated a garden-variety substantive defect in plaintiffs' claim as defeating redressability [for standing purposes]." Id. at 1234. The present case is clearly governed by the Supreme Court's decision in Franklin. and concerns the judiciary's lack of "institutional power" to order the specific relief sought by plaintiffs.]

[page 8]

The relief that plaintiffs seek in this case goes to the very core of the President's executive functions. In regard to their Guarantee Clause claim, for example, plaintiffs ask for injunctive relief to require that, until such time as the District of Columbia is admitted as a "sovereign State" or 'is "unified with a previously-existing sovereign State":

[the President] shall not approve, ratify, implement, or enforce any Act, Resolution, or mandate of Congress (1) which applies to the District of Columbia and (2) which does not immediately apply in real terms (determined by whether any action, behavior, or expenditure of money is changed or affected) to the entire United States, and (3) which has not been previously ratified by the citizens of the District of Columbia by direct vote or by vote of their then elected representatives in the interim home rule government * * *.

See Complaint, Prayer for Relief, C.1a. [footnote 4: Presumably, plaintiffs refer in their prayer for relief to any and all existing laws enacted by Congress that establish or regulate the government of the District of Columbia.] Quite literally, plaintiffs ask pursuant to this injunction for the Court to (i) prohibit the President from enforcing any existing law, as described in their prayer for relief, that was duly enacted by Congress pursuant to its express authority under Article I, 8, [page 9] cl. 17, 9f the Constitution, and (ii) require that he veto or decline to enforce any such law that might be enacted by Congress in the future, or until such time as the District is recognized as a "sovereign State."

Notably, the constitutional validity of none of the laws described in plaintiffs' prayer for relief is at issue in this lawsuit. Plaintiffs, in other words, do not ask the Court merely to interfere in the performance of the President's official duties, which by itself would be impermissible, but to enjoin the President from "tak[ing] Care that the Laws be faithfully executed" in violation of Article II, 3, of the Constitution. , Kendall V. United States, 37 U.S. (12 Pet.) 524, 613 (1838) ("To contend that the obligation imposed on the [P]resident to see the laws faithfully executed, implies a power to forbid their execution, is a novel construction of the [C]onstitution, and entirely inadmissible.").

The additional relief that plaintiffs seek with respect to their Fifth Amendment equal protection claim is equally novel. As noted earlier, it is plaintiffs' contention that the defendants in this lawsuit have violated their Fifth Amendment rights by failing to allocate a Representative to the District of Columbia. The President, however, has no authority relating to the apportionment of Representatives among the States except as provided for by statute.

Specifically, since 1941, Congress has provided pursuant to 2 U.S.C. 2a(a) that:

[page 10]

On the first day, or within one week thereafter, of the first regular session of the Eighty-second Congress and of each fifth Congress thereafter, the President shall transmit to the Congress a statement showing the whole number of persons in each State, excluding Indians not taxed, as ascertained under the seventeenth and each subsequent decennial census of the population, and the number of Representatives to which each State would be entitled under an apportionment of the then existing number of Representatives by the method known as the method of equal proportions, no State to receive less than one Member.

The validity of this statute is not at issue in this case, and, "like all Acts of Congress, is presumptively constitutional." Turner Broadcasting System. Inc. v. FCC, 507 U.S. 1301, 1302 (1993) (Rehnquist, C.J., in chambers). See Department of Commerce v. Montana, 503 U.S. 442 (1992) (holding that Congress exercised its apportionment authority within the limits dictated by the Constitution, Article I, 2, when it enacted 2 U.S.C. 2a(a)).

Plaintiffs, nonetheless, ask the Court to issue an injunction to require that:

[the President] shall not transmit to the Congress, on the basis of the decennial census or other enumeration, any number of Representatives to be apportioned to each State other than the minimum number of Representatives to which each State is entitled under [Article 1, 2], * * * until such time as the District of Columbia * * * is admitted as a sovereign State or] * * * is unified with a previously-existing sovereign State * * *.

Id., C.lb. By its terms, this requested relief would directly violate 2 U.S.C. 2a(a), which, as set forth above, requires the [page 11] President to certify to Congress based on each decennial census the number of Representatives to which each State is entitled under the "equal proportions" method. See Commerce Department V. Montana, supra, 503 U.S. at 452-56 (explaining the history of the statute and the "equal proportions" method)

The petitioner in Mississippi v. Johnson, supra, asked the Supreme Court to enjoin President Johnson from enforcing the Reconstruction Acts because they were allegedly unconstitutional. The Court declined to reach the merits of petitioner's constitutional claim, explaining that it was without authority to interfere with or enforce the President's duty to see that the laws are faithfully executed. 4 Wall. at 499. The Court declared that any "attempt on the part of the judicial department [to do so * * * might be justly characterized, in the language of Chief Justice Marshall, as 'an absurd and excessive extravagance."' Id. (citation not supplied in original).

In this case, plaintiffs ask this Court to go even further than did petitioner in Mississippi v. Johnson to enjoin the President's compliance with a presumptively constitutional law, 2 U.S.C. 2a(a), which is not even at issue in this lawsuit. Borrowing again from Chief Justice Marshall, because it can equally be said that plaintiffs' requested relief is "'an absurd and excessive extravagance,'11 4 Wall. at 499, their claims against the President should be dismissed. [footnote 5: For these same reasons, declaratory relief against the President is also unavailable. See Franklin v. Massachusetts, 506 U.S. at 828 (Scalia, J., concurring) ("Permitting declaratory or injunctive relief against the President personally would not only distract him from his constitutional responsibility to 'take Care that the Laws be faithfully executed," U.S. Const., Art, II, 3, but, as more and more disgruntled plaintiffs add his name to their complaints, would produce needless head-on confrontations between district judges and the Chief Executive."). The D.C. Circuit has stated regarding this issue that "similar considerations regarding a court's power to issue [injunctive] relief against the President himself apply to [a plaintiff's] request for a declaratory judgement." Swan v. Clinton, 100 F.3d at 976 n.l.]

[page 12]

II. THE DISTRICT OF COLUMBIA HAS A UNIQUE STATUS UNDER THE CONSTITUTION, AND PLAINTIFFS' CLAIMS ARE WITHOUT MERIT ON THEIR FACE

Although plaintiffs' lawsuit should appropriately be dismissed for lack of standing, it is additionally clear that the merits of their claims are without substance.

1. Plaintiffs Do Not Have A Fifth Amendment Right To

Be Represented In Congress Because The District

Of Columbia Is Not A "State" Under The Provisions

Of The Constitution Governing Representation

Plaintiffs presumably will rely heavily on the constitutional principles set forth in the Supreme Court's "apportionment" (one person, one vote) cases in support of their alleged Fifth Amendment entitlement to be represented in Congress. , Westbery v. Sanders, 376 U.S. 1 (1964). These decisions, however, have no application to the claims at issue in this case due to the District of Columbia's very unique constitutional status.

Article I, 8, cl. 17, of the Constitution provides that "Congress shall have Power * * * To exercise exclusive Legislation in all Cases whatsoever, over such District (not [page 13] exceeding ten Miles square) as may, by Cessation of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States * * *." As Judge Gasch explained in Hobson V. Tobriner, supra, "[t]his provision of the Constitution was effectuated in 1788 and 1789 when Maryland and Virginia ceded territory to the Federal Government, and Congress, by acts which were approved on July 16, 1790, and March 3, 1791, established the District of Columbia." 255 F. Supp. at 297. "[The effect of cession upon individuals [residing in the District] was to terminate their state citizenship and the jurisdiction of the state governments over them." Id.

As additionally noted by Judge Gasch, residents of the District of Columbia, as citizens of the United States, are afforded certain constitutional rights and privileges, "such as trial by jury, presentment by grand jury, and the protections of due process of law." Id. (citations to underlying authorities omitted). See Downes v. Bidwell, 182 U.S. 244, 261 "[t]he mere cession of the District of Columbia to the Federal government relinquished the authority of the states, but it did not take it out of the United States or from under the aegis of the Constitution").

The District of Columbia, however, is not considered to be a "State" under the Constitution for many purposes. Hobson, 255 F. Supp. at 297. See District of Columbia v. Carter, 409 U.S. 418, 420 (1973) ("Whether the District of Columbia constitutes a 'State or Territory' within the meaning of any particular statutory or [page 14] constitutional provision depends upon the character and aim of the specific provision involved."). In specific regard to plaintiffs' Fifth Amendment claim, it is a historical and constitutional fact, supported by nearly two centuries of practice, that the District of Columbia is not a "State" as' that term is used in the constitutional provisions dealing with representation in Congress, , Article I, 2, as amended by the Fourteenth Amendment. [footnote 6: Article I, 2, cl.3, originally provided that "Representatives * * * shall be apportioned among the several States * * * according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons." Section 2 of the Fourteenth Amendment amended this provision by establishing that "Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed."]

Indeed, these provisions, pursuant to their language and context, compel this conclusion. Thus, after providing that Representatives would be apportioned among "the several States * * * according to their respective Numbers," Article I, 2, goes on to specifically designate the number of Representatives to be allocated to each of the original thirteen States until such time as the "actual Enumeration" of each State's "respective numbers" could be accomplished. [footnote 7: Such "Enumeration" was required to be accomplished under Article I, 2, cl.3, "within three Years after the First Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct." "[U]ntil such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three." Id.] That the Founding Fathers did not [page 15] intend for the District of Columbia to be recognized as a State under this provision is made clear by its exclusion from this enumeration.

Shortly after the ratification of the Constitution, this obvious conclusion was confirmed by the Supreme Court, per Chief Justice Marshall, in Hepburn & Dundas v. Ellzey, 6 U.S. (2 Cranch) 445 (1805). Although, in that case, the specific issue before the Court concerned whether District residents are citizens of a State for purposes of Article III diversity jurisdiction and the Judiciary Act of 1789, Chief Justice Marshall, referring to the constitutional provisions dealing with representation in Congress, stated the Court's "conviction that the members of the American confederacy only are the states contemplated in the constitution." Id. at 452. "These clauses [dealing with representation in Congress] show that the word state is used in the constitution as designating a member of the union, and excludes from the terms the signification attached to it by writers on the law of nations." Id. at 452-53. See The Corporation of New Orleans v. Winter, 14 U.S. (1 Wheat) 91, 94 (1816) (Marshal, C.J.)("neither [the District of Columbia nor the territories] is a state, in the sense in which that term is [page 16] used in the Constitution.") [footnote 8: As subsequently explained by the Supreme Court in Metropolitan Railroad Co. v. District of Columbia, 132 U.S. 1, 9 (1889): "The court [in Hepburn] did not deny that the District of Columbia is a State in the sense of being a distinct political community; but held that the word 'State' in the Constitution, where it extends the judicial power to cases between citizens of the several 'States,' refers to the States of the Union." See also Railroad Co. v. Harris, 79 U.S. (12 Wall.) 65, 86 (1870) (reaffirming Hepburn); Barney v. Baltimore City, 73 U.S. (6 Wall.) 280, 287 (1867) (same); Scott V. Jones, 46 U.S. (5 How.) 343, 377 (1847) (same).]

More recently, seven members of the Supreme Court expressly declined to overrule Chief Justice Marshall's conclusion that the District of Columbia is not a State for constitutional purposes. National Mutual Insurance Co. V. Tidewater Transfer Co., 337 U.S. 582 (1949) (in which Congress' authority under Article III to extend diversity jurisdiction to suits between State citizens and District citizens was at issue). Moreover, although two members of the Supreme Court in Tidewater thought that Hepburn should no longer be controlling law regarding Congress' authority under Article III, i, at 604-626 (Rutledge, J., concurring), research has not revealed any opinion, offered by any court, for the proposition that the District of Columbia should be recognized as a State under Article I, 2, as amended by the Fourteenth Amendment. [footnote 9: Consistent with this precedent, the Supreme Court in Bolling v. Sharpe, 347 U.S. 497 (1954), when confronted with a violation of fundamental rights (racial segregation in the District's public schools), did not even consider the possibility of applying the equal protection clause of the Fourteenth Amendment to the District of Columbia. Id. at 499 ("The Fifth Amendment, which is applicable to the District of Columbia, does not contain an equal protection clause as does the Fourteenth Amendment which applies only to the states.").]

[page 17]

In addition, the suggestion that the District can be considered a State under Article 1, 2, and the Fourteenth Amendment would render meaningless the Twenty-third Amendment, which assumed that the District of Columbia is not a State for purposes of determining representation in Congress. That Amendment, which was adopted in 1961, provides in relevant part that:

Section 1. The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct:

A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; [emphasis added].

Plaintiffs rest their Fifth Amendment claim principally on the proposition that the District of Columbia cannot legitimately be distinguished from other "federal enclaves." See Complaint, 48 ("the citizens of every federal enclave are apportioned representation in Congress"). As opposed to the District of Columbia, however, persons who live in federal enclaves retain their status as citizens of the State in which the enclave is situated. Thus, in Evans V. Cornman, 398 U.S. 419 (1970), the Supreme Court held that persons living on the grounds of the National Institute of Health ("NIH"), a federal enclave located -in Montgomery County, Maryland, could not be denied the right to [page 18] vote in Maryland elections. Such persons clearly reside in the geographic boundaries of Maryland, and could be deemed not to be residents of that State "only if the NIH grounds ceased to be a part of Maryland when the enclave was created," which did not happen. Id. at 421. See Howard v. Commissioners of Louisville, 344 U.S. 624, 626 (1953) ("When the United States, with the consent of Kentucky, acquired the property upon which the [federal] Ordnance Plant is located, the property did not cease to be a part of Kentucky.").

In contrast, as noted earlier, when the States of Virginia and Maryland ceded the "District of Columbia" to the federal government, "the effect of cession upon individuals [residing in the District] was to terminate their state citizenship and the jurisdiction of the state governments over them." Hobson, supra, 255 F. Supp. at 297. See Reily v. Lamar, 6 U.S. (2 Cranch) 344, 356 (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."). , District of Columbia v. Thompson , 346 U.S. 100, 109 (1953) (the "exclusive" power granted to Congress under Art. I, 8, cl. 17, "eliminate[d] any possibility that the legislative power of Congress over the District was to be concurrent with that of the ceding states.").

Ultimately, plaintiffs' equal protection claim stands for the proposition that the District's unique status under the Constitution, Article, I, 2, as amended by the Fourteenth [page 19] Amendment, is "unconstitutional," which is, of course, an impossibility. Any changes to the District's status must be sought in the political branches of the federal government, and plaintiffs' Fifth Amendment claim should, accordingly, be dismissed. [footnote 10: Plaintiffs further allege that their Fifth Amendment rights are violated as a result of Congress' action, in 1847, to retrocede to the State of Virginia "that part of the original District of Columbia which lay south-west of the high tide line on the south-west shore of the Potomac River." Complaint, 19. Plaintiffs apparently believe that, as a result of this action occurring more than one and one-half centuries ago, they suffer from a continuing violation of their Fifth Amendment rights because "Congress has not imposed on [that] former portion of the District of Columbia * * * any of the depredations which it imposes on the remaining portion of the District of Columbia lying north-east of the Potomac River." Id., 59. For the reasons stated above, however, these allegations add nothing to plaintiffs' Fifth Amendment claim.]

2. Congress' Exercise Of Its "Exclusive" Legislative Authority Over The District Of Columbia Does Not Violate The Guarantee Clause Of The Constitution

There is no merit to plaintiffs' claim under Guarantee Clause that the District's existing government is not "a republican form of government because [its] every action * * * is subject to absolute review and veto by Congress * * *." Complaint, 9l. [footnote 11: Although it is not entirely clear, plaintiffs apparently contend that, even if they were granted voting representation in Congress, the existing District of Columbia government would still be unconstitutional because they, as District citizens, are entitled under the Guarantee Clause to "the benefits of a state government * * * [that is] insulated from Congressional interference in matters properly within the exclusive competence of state governments * * *." , 64, 109.] As noted earlier, Congress is vested under Article I, 8, cl. 17, of the Constitution with the authority [page 20] "[t]o exercise exclusive Legislation in all Cases whatsoever, over [the District of Columbia]." The Supreme Court, pursuant to nearly two centuries of practice; has given these words their full meaning and effect.

"There is, in this district [of Columbia], no division' of powers between the general and state governments. Congress has the entire control over the district, for every purpose of government." Kendall V. United States, 37 U.S. (12 Pet.) 524, 619 (1838). See, , Northern Pipeline Co. v. Marathon Pipe Line Co., 458 U.S. 50, 75 (1982) ("Congress' power over the District of Columbia encompasses the full authority of government, and thus, necessarily, the Executive and Judicial powers as well as the Legislative.")(emphasis in original); District of Columbia v. Carter, 409 U.S. at 422 (the District of Columbia "is a mere instrumentality of [the Federal] Government"); Metropolitan R. Co. v. United States, 132 U.S. at 9 ("It is undoubtedly true that the District of Columbia is a separate community in a certain sense, and in that sense may be called a state, but the sovereign power of this qualified state is not lodged in the corporation of the District of Columbia, but in the government of the United States.").

Although plaintiffs object to the fact that the Constitution vests in Congress such broad and "exclusive" authority over the District of Columbia, they can hardly contend that the exercise of this power is "unconstitutional," and their Guarantee Clause claim should, accordingly, be dismissed.

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CONCLUSION

For the foregoing reasons, President Clinton's motion to dismiss plaintiffs' claims should be granted.

Respectfully submitted,

FRANK W. HUNGER, Assistant Attorney General

WILMA A. LEWIS, United States Attorney

THEODORE C. HIRT & JOHN R. TYLER, U.S. Dept. Justice