PRESIDENT CLINTON'S REPLY MEMORANDUM IN SUPPORT OF HIS MOTION TO DISMISS THE CLAIMS BROUGHT BY PLAINTIFFS IN ADAMS V. CLINTON

PRELIMINARY STATEMENT

Defendant William Jefferson Clinton, president of the United States, replies herein in support of his motion to dismiss the claims brought by the Adams plaintiffs in the first of the above-captioned consolidated actions. [footnote 1: Our reference to "plaintiffs" herein is only to the Adams plaintiffs and the claims brought in their individual complaint.] For the reasons stated below, plaintiffs fail in their opposition memorandum to satisfy their burden of showing that they have Article III standing to bring claims for equitable relief against the President. Moreover, even if plaintiffs could establish standing, their claims are without merit on their face.

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Indeed, with respect to their equal protection claim, plaintiffs effectively concede that they do not have a constitutional right of representation in Congress arising from the Fifth Amendment, and furthermore admit, at least for purposes of argument, that only State residents, as opposed to residents of the District of Columbia, are entitled to representation in Congress under the Constitution, Article I, 2, as amended by the Fourteenth Amendment. Their Fifth Amendment claim is based, instead, on the contention that Congress cannot exercise exclusive jurisdiction over the District of Columbia under Article I, 2, cl. 17, because it has not exercised like jurisdiction over "federal enclaves" across the United States. This claim makes no sense, most especially in relation to plaintiffs' request that they be granted representation in Congress, and has no basis in law. Plaintiff's Guarantee Clause claim is even more attenuated. For these reasons, as demonstrated below, the President's motion to dismiss plaintiffs' complaint should be granted.

I. PLAINTIFFS LACK STANDING TO BRING CLAIMS FOR EQUITABLE RELIEF AGAINST THE PRESIDENT

Plaintiffs mistakenly contend that president Clinton is asking the Court to dismiss their claims against him on the ground of sovereign immunity. See plaintiffs' Memorandum ("Mem.") at 27-29. The President has not raised this specific defense, and the "Larson-Dugan doctrine" has no application to this case. see, Swan v Clinton, 100 F.3d 973, 981 (D.C. Cir. [page 3] 1996) ("The 'Larson-Dugan exception' * * * holds that sovereign immunity does not apply as a bar to suits alleging that an [Executive Branch] officer's actions were unconstitutional or beyond statutory authority").

Instead, the jurisdictional issue raised by President Clinton in his motion to dismiss concerns the "redressability" element of Article III standing. Franklin V. Massachusetts, 505 U.S. 788, 801 (1992) ("To invoke the constitutional power of the federal courts to adjudicate a case or controversy under Article III, appellees here must allege and prove an injury 'fairly traceable to the [appellants'] allegedly unlawful conduct and likely to be redressed by the requested relief.'"). In regard to this issue, a majority of the Supreme Court in Franklin reaffirmed the principle set forth in Mississippi v. Johnson, 4 Wall. 475, 501 (1867), that the courts generally lack jurisdiction to prescribe the exercise of the President's discretionary executive powers. 505 U.S. at 802-803 (plurality); id. at 826 (Scalia, J., concurring).

This principle applies here, requiring that plaintiffs' claims for injunctive and declaratory relief against the President be dismissed. Among plaintiffs' other difficulties, as set forth in the President's motion to dismiss (Mem. at 9-11), is the fact that they ask the Court to enjoin the President from executing a presumptively valid law, 2 U.S.C. 2a(a) -- which plaintiffs have not challenged in their complaint -- in violation of his duty under Article II, 3 of the Constitution (the [page 4] President shall "take Care that the Laws be faithfully executed").

Plaintiffs respond by arguing (Mem. at 35) that their claims, by implication, necessarily concern the constitutional validity of "many laws," including 2 U.S.C. 2a, "in that these various laws have the direct effect of infringing their fundamental rights." We are, however, aware of no case in which a court has permitted a party to bring an implied-in-fact" constitutional challenge to a federal law, and plaintiffs' belated attempt to rescue their claims for equitable relief against the president must fail. See Wallach v. Lieberman, 219 F. Supp. 247, 249 (S.D.N.Y. 1963), aff'd, 366 F.2d 254 (2d Cir. 1966) (rejecting plaintiffs' "belated attempt" to constitutionally attack a federal law for the first time in their opposition to defendants' summary judgment motion, stating that, "[a]t the very least, such a challenge should be made by a complaint sufficiently well pleaded to give notice that the question is being raised") [footnote 2: This is especially true concerning plaintiffs' statement that they purportedly challenge the constitutional validity of "many [still unidentified] laws, both facially or as applied." See plaintiffs' Mem. at 35. It is not the duty of either the Court or defendants to guess which of the "many laws" in the United States Code plaintiffs seemingly have in mind. Moreover, this case has progressed too far to allow plaintiffs to amend their complaint in an vain attempt to establish standing, or otherwise to substantiate their underlying constitutional claims. To permit such conduct would only turn plaintiffs' claims into perpetually moving targets, being continually transformed as they attempt to support their alleged entitlement to relief.]

In any event, even if plaintiffs' belated constitutional [page 5] attack against 2 U.S.C. 2a were properly before the Court, it does not make redressable their claims against the President. The very issue before the Supreme Court in Mississippi v. Johnson was whether "the President [could] be restrained by injunction from carrying into effect an act of Congress alleged to be unconstitutional." 4 Wall. at 498. Although leaving open the question whether the President could be enjoined regarding the performance of his purely "ministerial" duties, the Supreme Court held that it has no jurisdiction to prescribe the president's exercise of his "executive and political" powers. Id. at 499, 501. See Franklin, 505 U.S. at 802-803 (same) [footnote 3: Plaintiffs attempt (Mem. at 29-30) to distinguish Franklin on the ground that it purportedly prohibits the issuance of only "mandatory," as opposed to "prohibitory," injunctive relief against the president. The Supreme Court in Mississippi V. Johnson, however, addressed this precise issue: "It is true in the instance before us the interposition of the court is not sought to enforce action by the Executive under constitutional legislation, but to restrain such action under legislation alleged to be unconstitutional. But we are unable to perceive that this circumstance takes the case out of the general principles which forbid judicial interference with the exercise of the President's discretion." 4 Wall. at 499 (emphasis added). Nothing in Franklin detracts from this principle, and plaintiffs' attempted distinction is baseless. See Franklin, 505 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.").]

This holding in Franklin applies here. plaintiffs ask the Court to prohibit the President from executing his duty under 2 U.S.C. 2a(a), which requires him in relevant part to submit a [page 6] report to Congress, based on each decennial census, showing "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 * * *. [footnote 4: Indeed, plaintiffs go further and ask the Court to prohibit the President from transmitting "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 Section Two of Article One of the Constitution * * *." See Complaint, Prayer for Relief, lb. There is no possible basis in law or equity that would permit the issuance of such a remarkable mandate (commanding the President to assign only one Representative to each State), even if it could be found that 2 U.S.C. 2a(a) were unconstitutional and that it was otherwise appropriate to issue injunctive relief against the President.] Because, as found by the Supreme Court in Franklin, 505 U.S. at 800, these duties "are not merely ceremonial or ministerial," equitable relief prescribing the President's "executive and political" obligations under this statute is not available. Mississippi V. Johnson, 4 Wall. at 499.

Moreover, this case represents "one of those rare instances" where plaintiffs' alleged injuries cannot be redressed by granting injunctive or declaratory relief against subordinate executive officials. Swan V. Clinton, 100 F.3d 973, 979 (D.C. Cir. 1996). , Franklin, 505 U.S. at 828 (Scalia, J., concurring) ("Review of the legality of presidential action can ordinarily be obtained in a suit seeking to enjoin the officers who attempt to enforce the president's directive"); Chamber of Commerce V. Reich, 74 F.3d 1322, 1328 (D.C. Cir. 1996) (the [page 7] "'courts have the power to compel subordinate executive officials to disobey illegal Presidential commands."')(citation omitted). The Supreme Court has held that only the President can take final action pursuant to 2 U.S.C. 2a: "Only after the President reports to Congress do the States have an entitlement to a particular number of Representatives." Franklin, 505 U.S. at 796 (alterations in original). See 2a(b) ("Each State shall be entitled * * * to the number of Representatives shown in the [President's] statement."). Pursuant to this finding, it is not possible for the Court to grant meaningful relief in this case by enjoining subordinate executive officers to disobey an allegedly illegal Presidential command because only the President is empowered under 2 U.S.C. 2a to take the actions complained of by plaintiffs.

For these same reasons, plaintiffs also lack standing to obtain relief from the President respecting their Guarantee Clause claim. In a recent motion, plaintiffs explain that their "claims under the Guarantee Clause are primarily that they are entitled to a republican form of state government 'insulated from Congressional interference in matters properly within the exclusive competence of state governments generally * * *.'" [footnote 5: See plaintiffs' "Motion to Alter or Amend Memorandum and Order Consolidating the Cases, with Points and Authorities Incorporated" at 3 (Nov. 12, 1998) (emphasis in original; citation omitted).] Although, pursuant to this claim, plaintiffs in their opposition brief (Mem. at 35) contend for the first time that they challenge [page 8] the constitutional validity of "many laws," they in fact identify only one Act of Congress which they presumably want the Court to enjoin the President from enforcing.

Specifically, plaintiffs contend that Pub.L. No. 104-8, 109 Stat. 97 (1995), by which Congress created the District of Columbia Financial Responsibility and Management Assistance Authority (the "Control Board"), "trenches on [their] fundamental constitutional rights." Plaintiffs' Mem. at 35. However, even if this belatedly announced constitutional challenge were otherwise properly before the Court (see supra, at 4), plaintiffs do not, and cannot, explain how the Court can possibly assume jurisdiction to enjoin the President from executing his responsibilities under this Act in accordance with Franklin. See Pub.L. No. 104-8, l0l(b)(l) and 101(b) (5) (C) (granting the President authority to appoint and remove the members of the Control Board). Quite clearly, such relief would violate the separation of powers principles underlying the Supreme Court's decisions in Franklin and Mississippi V. Johnson, and plaintiffs' Guarantee Clause claim against the President should be dismissed for this reason.

II. PLAINTIFFS' FIFTH AMENDMENT EQUAL PROTECTION CLAIM SHOULD BE DISMISSED AS A MATTER OF LAW

Plaintiffs, "at least for the purposes of the instant argument," agree with the fact, as recognized by all three branches of government over the last two centuries, "that only citizens of 'States' are * * * apportioned representation in [page 9] Congress under the Constitution." Plaintiffs' Mem. at 51. [footnote 6: In response to the President's showing (Mem. at 12-19) that the Constitution, Article I, 2, as amended by the Fourteenth Amendment, reserves representation in Congress to the States, plaintiffs rhetorically ask: "But, so what?" Id.] Moreover, plaintiffs in a more recent filing make it expressly clear that they do not contend that they, as D.C. residents, have a constitutional right of representation in Congress "arising from" the Fifth Amendment. [footnote 7: See plaintiffs' "Motion to Alter or Amend Memorandum and Order Consolidating the Cases, with Points and Authorities Incorporated" at 2 ("The Twenty Citizens make no claim based upon from the equal protection provisions of the Constitution (see Complaint at 1-98))."]

Rather, plaintiffs' Fifth Amendment claim is significantly more attenuated and is premised on the fact that Congress, since the beginning of the Republic, has always asserted exclusive jurisdiction over the District of Columbia pursuant to Article I, 8, cl. 17, of the Constitution, which provides in full that Congress has the power:

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of Particular States, and the 41' Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-yards and other needful Buildings;

Referring to the second part of this provision (the "Enclave Clause," granting Congress "like Authority" for the "Erection of Forts," etc.), plaintiffs argue that Congress cannot, consistent [page 10] with Fifth Amendment equal protection principles, continue to exercise exclusive jurisdiction over the District where it has not exercised like jurisdiction over federal enclaves located throughout the United States. See Kleppe V. New Mexico, 426 U.S. 529, 542 (1976) ("the legislative jurisdiction [acquired by Congress under the Enclave Clause] may range from exclusive federal jurisdiction with no residual state police power, * * * to concurrent, or partial, federal jurisdiction which may allow the State to exercise certain authority") (citation omitted). [footnote 8: Plaintiffs additionally contend that Congress' continued exercise of exclusive jurisdiction over the District of Columbia violates the Fifth Amendment because, in 1846, Congress retroceded to the State of Virginia that part of the District that lay south-west of the Potomac River. See Plaintiffs' Mem. at 47 ("Congress has continued to exercise exclusive jurisdiction over the District of Columbia, passing laws and imposing institutions on the District which have not been imposed on the former portion of the District south-west of the Potomac River or on the federal enclaves")] Plaintiffs summarily conclude pursuant to this contention that "there are no compelling governmental reasons for the differential treatment of the District of Columbia, as compared to the former portion of the District of Columbia south-west of the Potomac River and as compared to the federal enclaves * * *." Plaintiffs' Mem. at 48.

Notably, as plaintiffs themselves concede, even if they could succeed on the merits of their Fifth Amendment claim, it does not necessarily follow that residents of the District of Columbia would be entitled to congressional representation. Thus, as plaintiffs explain in their most recent filing, "[t]he [page 11] disparate treatment at issue might be remedied by placing the Plaintiffs in the same position as the citizens of those other areas [federal enclaves], or by placing the citizens of the other places into the same position as the Plaintiffs, * * * so representation in Congress is not a necessary correlate to [their] equal protection claims." [footnote 9: See plaintiffs' "Motion to Alter or Amend Memorandum and Order Consolidating the Cases, with Points and Authorities Incorporated" at 2.]

From this, we can only surmise that it is ultimately plaintiffs' hope that, if they were to succeed on their Fifth Amendment claim, Congress in response would choose to treat the District of Columbia as it has federal enclaves, , it would exercise only concurrent, or partial, federal jurisdiction over the District and allow a State (presumably the State of Maryland) to exercise certain authority. See Kleppe, 426 U.S. at 542. Plaintiffs apparently believe that, if this were to happen, it would give rise to voting rights on behalf of District residents pursuant to the Supreme Court's decision in Evans V. Cornman, 398 U.S. 419 (1970). [footnote 10: In that case, as explained in the President's motion to dismiss (Mem. at 17-18), the Supreme Court held that the State of Maryland could not deny the right to vote to persons living on the grounds of the National Institute of Health, which, although a federal enclave, has always existed as "a part of Maryland." Id. at 421. The Court explained that, "[w]hile it is true that federal enclaves are still subject to exclusive federal jurisdiction and Congress could restrict as well as extend the powers of the States within their bounds," Congress has chosen to permit "the States to extend important aspects of state powers over federal areas." Id. at 423-424. Upon its review of how the State of Maryland exercised its powers over people residing at the National Institute of Health, the Supreme Court affirmed the district court's decision that "on balance the [plaintiffs] are treated by the State of Maryland as state residents to such an extent that it is a violation of the Fourteenth Amendment for the State to deny them the right to vote." Id. at 424-425.] See Plaintiffs' Mem. at 54-55 ("by a series [page 12] of statutes, Congress ceded to the States a plethora of powers such that the States assumed power over the enclaves," * * * [and] the residents of the enclaves won the right to exercise fundamental rights as citizens."). Thus, pursuant to plaintiffs' theory, if Congress ceded concurrent jurisdiction over the District of Columbia to the State of Maryland, as it did with the National Institute of Health, persons living within the District's borders would effectively become Maryland residents and thereby be entitled to vote in that State's elections. [footnote 11: We recognize that the above articulated basis for plaintiffs' Fifth Amendment claim does not comport with certain of the averments made in their complaint and with their request for relief. See , Complaint, Prayer for Relief, A.2.a. (page 23) (asking the Court to declare that "[t]he citizens of the District of Columbia have the right to be apportioned to a congressional district or districts * * *.") . However, although plaintiffs had seemingly alleged in their complaint that they have a constitutional right of representation in Congress arising from the Fifth Amendment, they are very clear in their most recent filing (supra, at 9) that this is not the case, and we respond accordingly to what we are now able to interpret their claim to be.]

Plaintiffs' Fifth Amendment claim is without merit on its face. When addressing this claim, it is important to recognize that plaintiffs do not, and cannot, contend that Congress has ever enacted legislation with the purpose and intent of denying to District residents the right to vote in congressional [page 13] elections while granting such rights to the residents of federal enclaves. To the contrary, as noted above, plaintiffs themselves accept, at least for purposes of argument, that the Constitution itself (Art. I, 2, as amended by the Fourteenth Amendment) reserves such rights to the citizens of the respective States as opposed to the District of Columbia, and they furthermore effectively concede that they have no right to congressional representation arising directly from the Fifth Amendment. Plaintiffs' claim, instead, stands for the asserted proposition that there is no legitimate basis under the Fifth Amendment for Congress, for whatever purpose, to exercise exclusive jurisdiction over the District of Columbia under Article I, 8, cl. 17, because it has chosen not to assert like authority over federal enclaves.

In answer to this argument, it need only be pointed out that the Constitution itself provides the legitimate basis for the "disparate treatment" complained of by plaintiffs. The very purpose under Article I, 8, cl. 17, for granting Congress exclusive jurisdiction over what was to become the Nation's capital city was to prevent interference by any of the States in the operation of the federal government. As the Supreme Court succinctly stated in District of Columbia V. Thompson Co., 346 U.S. 100, 109 (1953), "it is clear from the history of the provision that the word 'exclusive' was employed to eliminate any possibility that the legislative power of Congress over the District was to be concurrent with that of the ceding states." [page 14] Madison explained the need for this authority by asking: "'How could the general government be guarded from the undue influence of particular states, or from insults, without such power?'" Id. at 110, quoting from The Federalist, No. 43; 3 Elliot's Debates (2d ed. 1876). [footnote 12: See Fort Leavenworth R.R. Co. V. Lowe, 114 U.S. 525, 528-29 (1885) ("The necessity of complete jurisdiction over the place which should be selected as the seat of government was obvious to the framers of the Constitution. Unless it were conferred the deliberations of Congress might in times of excitement be exposed to interruptions without adequate means of protection; its members, and the officers of the government, be subjected to insult and intimidation, and the public archives be in danger of destruction."); Franchino, The Constitutionality of Home Rule and National Representation for the District of Columbia, 46 Geo.L.J. 207, 213 (1957-58) ("It cannot be over-emphasized that throughout the debates regarding the selection of the site [for the District] and the adoption of the District clause [Art. I, 8, c.17], the desire for an area free from state control was paramount.").]

It does not follow, of course, that Congress, having assumed exclusive jurisdiction over the District of Columbia pursuant to this constitutional purpose, must therefore assume like jurisdiction over all federal enclaves. To the contrary, as noted earlier, the Supreme Court has expressly found that Congress may assume "legislative authority" over property under the Enclave Clause ranging "from exclusive federal jurisdiction with no residual state police power, * * * to concurrent, or partial, federal legislative jurisdiction, which may allow the State to exercise certain authority." Kleppe, supra, 426 U.S. at 542. [footnote 13: The federal government can obtain "legislative power" over property "by consensual acquisition of land, or by non consensual acquisition followed by the State's subsequent cession of legislative authority over the land." Id. However, "without the State's 'consent' the United States does not obtain the benefits of Art. I, 8, cl. 17, its possession being simply that of an ordinary proprietor." Paul V. United States, 371 U.S. 245, 264 (1963).] The government exercises its discretion in this area [page 15] based on practical concerns.

As the Solicitor General has pointed out, a transfer of legislative jurisdiction carries with it not only benefits but obligations, and it may be highly desirable, in the interest both of the national government and of the State, that the latter should not be entirely ousted of its jurisdiction. The possible importance of reserving to the State jurisdiction for local purposes which involve no interference with the performance of governmental functions is becoming more and more clear as the activities of the Government expand and large areas within the States are acquired. There appears to be no reasons why the United States should be compelled to accept exclusive jurisdiction or the State be compelled to grant it in giving its consent to purchase.

James V. Dravo Contracting Co., 302 U.S. 134, 148 (1937). These practical considerations led Congress to enact legislation in 1940, 40 U.S.C. 255, which leaves it to the discretion of any authorized head of a department or agency of the federal government to determine whether it is desirable for the United States to assume either exclusive or partial jurisdiction over federally owned property. See Adams V. United States, 319 U.S. 312, 314 (1943) ("The bill resulted from a cooperative study by government officials, and was aimed at giving broad discretion to the various agencies in order that they might obtain only the necessary jurisdiction.").

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It is entirely proper that the government take into account any number of practical considerations when determining whether to assume either exclusive or partial jurisdiction over a federal enclave. Also, plaintiffs cannot credibly suggest that Congress must yield exclusive jurisdiction over the District of Columbia because it has declined to assume like jurisdiction over every federal lighthouse, military installation, medical research center, or wetland area in the United States. In sum, none of the authorities relied on by plaintiffs support their claim that the Fifth Amendment requires Congress to cede to the State of Maryland any aspect of its constitutional authority over the District of Columbia under Article I, 8, cl. 17, and plaintiffs' equal protection claim should, accordingly, be dismissed. [footnote 14: It is irrelevant to the above analysis that State residents living in federal enclaves are entitled to vote pursuant to the Supreme Court's decision in Evans V. Comman. Nothing in that decision can possibly be read to circumscribe the exercise of Congress' jurisdiction under Art. I, 2, cl. 17, over federal enclaves or the District. instead, the Supreme Court in Evans was concerned only with a State's power to deny the vote to people residing within its geographic boundaries who are treated by the State as its residents. 398 U.S. at 424-425. Indeed, in regard to Congress' authority under Art. I, 2, cl. 17, the Supreme Court effectively recognized that it could reassert exclusive jurisdiction over a federal enclave, even if that meant that its residents would then be denied the right to vote. 398 U.S. at 424. See Comman V. Dawson, 295 F. Supp. 654, 656 (D. Maryland 1969) ("Where the federal government has exclusive jurisdiction over land located within the geographic boundaries of a state, it can hardly be doubted that no constitutional right of a resident of the enclave is infringed by the state's refusal to grant such resident the right to vote"), aff'd sub nom., Evans V. Comman, 398 U.S. 419 (1970).]

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II. PLAINTIFFS' GUARANTEE CLAUSE CLAIM CAN BE DISMISSED ON ITS MERITS

In addition to the fact that plaintiffs do not have standing to bring a claim for equitable relief against the President under the Guarantee Clause at 7-8), there are also, at the very least, significant issues about whether this claim presents a political question (See the President's motion to dismiss, Mem. at 5-6), and whether the Guarantee Clause applies to the District of Columbia. Darby V. United States, 681 A.2d 1156, 1158 (D.C. 1996), cert. denied, 117 5. Ct. 596 (1997) (the Guarantee Clause "applies to the states and cannot be read to restrict the power of Congress to legislate for the District.").

But even if plaintiffs could overcome these hurdles, their claimed entitlement under the Guarantee Clause to "the benefits of a state government * * * [that is] insulated from Congressional interference" is obviously without merit and can, accordingly, be dismissed on its face. Complaint, 64, 109. [footnote 15: As noted earlier, plaintiffs make it expressly clear that their "claims under the Guarantee Clause are primarily that they are entitled to a republican form of state government 'insulated from Congressional interference in matters properly within the exclusive competence of state governments generally * * *.'" See plaintiffs' "Motion to Alter or Amend Memorandum and Order Consolidating the Cases, with Points and Authorities Incorporated" at 3 (Nov. 12, 1998) (emphasis in original; citation omitted).] 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 [page 18] legislative.'') (emphasis in original).

CONCLUSION

For the forgoing reasons, the President's motion to dismiss the claims brought by the Adams plaintiffs should be granted.

Respectfully submitted,

FRANK W. HUNGER, Assistant Attorney General