PRESIDENT CLINTON'S OPPOSITION TO THE ADAMS PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

INTRODUCTION

Recognizing that representation in Congress is reserved under the Constitution to the people of the respective States, the Adams plaintiffs contend that the Fifth Amendment requires Congress to divest itself of exclusive jurisdiction over the District of Columbia (with the exception of the so-called National Capital Service Area). Such divestment is required, the Adams plaintiffs argue, so that the District can in practical effect be incorporated within the State of Maryland, which would in turn provide plaintiffs their claimed constitutional right to participate as Maryland residents in that State's congressional elections.

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We have previously responded to this claim in the President's motion to dismiss, establishing that it is legally without merit. See Defendant Clinton's Reply Memorandum, 8-16 (November 20, 1998). Although plaintiffs now move on their own behalf for summary judgment pursuant to this same claim, and submit in support thereof a 78-page memorandum and voluminous accompanying exhibits, they offer nothing new in these submissions beyond what they previously said in opposition to our dispositive motion. Plaintiffs' Fifth Amendment claim remains, as it was before, fundamentally misconceived. We need not, in regard to this claim, address the stated injustice of the denial of representation in Congress on behalf of the District, but rather limit our arguments to the unavoidable conclusion that any change to the District's constitutional status must be sought in the political arena rather than by this lawsuit. For the reasons briefly set forth below, the Adams plaintiffs' summary judgment motion should be denied.

ARGUMENT

THE FIFTH AMENDMENT DOES NOT DIVEST CONGRESS OF ITS EXCLUSIVE JURISDICTION OVER THE DISTRICT OF COLUMBIA

The gravamen of plaintiffs' Fifth Amendment claim is that Congress cannot, consistent with equal protection principles, continue to exercise exclusive jurisdiction over the Nation's capital under Article I, 8, cl. 17, of the Constitution because it has chosen not to exercise like jurisdiction under this same clause over various "federal enclaves" located throughout the United States. This claim is without foundation and fails at the [page 3] outset without the need to apply traditional equal protection analysis. The so-called "District Clause" of Article I, 8, ci. 17, which grants Congress "exclusive Legislation in all Cases whatsoever] over The] District," was specifically intended by the Framers of the Constitution "to eliminate any possibility that the legislative power of Congress over the District was to be concurrent with that of the ceding states." District of Columbia v. Thompson Co., 346 U.S. 100, 109 (1953). Pursuant to this express purpose, there is no support for plaintiffs' argument that the Fifth Amendment purportedly requires Congress to cede jurisdiction over the District to the State of Maryland in direct violation of the Framers' intent.

That Congress has chosen not to exercise exclusive jurisdiction under the "Enclave Clause" of Article I, 8, cl.17, over various federal properties located throughout the United States is neither relevant nor instructive. [footnote 1: See James v. Dravo Contracting Co., 302 U.S. 134, 148 (1937) ("There appears to be no reason why the United States should be compelled to accept exclusive jurisdiction" over federal property); Kleppe v. New Mexico, 426 U.S. 529, 542 (1976) (Congress may assume partial or exclusive "legislative authority" over property under the Enclave Clause)] Even if traditional equal protection analysis were to be applied to plaintiffs' Fifth Amendment claim, it would be inappropriate to suggest that the District of Columbia is "similarly situated" to federal research centers, wetland areas, and national forests in the United States. Rinaldi v. Yeager, 384 U.S. 305, 309 (1966) (equal protection principles do not require "'thing which [page 4] are different in fact * * * to be treated in law as though they were the same"') (citation omitted). The Nation has only one capital city, and the fact that Congress might choose, for any number of practical reasons, to cede partial jurisdiction over a federal enclave such as the National Institutes of Health (located in Maryland) to the State of Maryland does not mean that it must in turn transform the District of Columbia into a part of Maryland. [footnote 2: Unlike the District of Columbia, federal enclaves such as the National Institutes of Health exist within and are part of the respective States in which they are located. See Evans v. Cornman, 398 U.S. 419, 421 (1970) (rejecting "'the fiction of [federal enclaves existing as] a state within a state'") (citation omitted). In significant contrast, the Nation's capital has always existed under the Constitution as a separate and independent "District" outside of the territory, authority, and jurisdiction of any of the sovereign States. Article I, 8, cl. 17. Plaintiffs ignore this fundamental distinction, which dooms their equal protection claim. Indeed, addressing this issue in a different context, the Department of Justice has testified before Congress that Article I, 8, cl. 17, prohibits it from divesting itself of exclusive jurisdiction over the District without a constitutional amendment. District of Columbia, Representation in Congress: Hearings on S.J. Res. 65 before the Subcomm. on the Constitution of the Senate Judiciary Committee, 95th Cong. 2d Sess., 17 (April 1978). Although it has been suggested that this issue would not arise if Congress were, at a minimum, to retain jurisdiction over the National Capital Services Area, this purported solution is itself both constitutionally suspect and impractical. Id. ("More than half the District's land area is covered by Federal facilities which are scattered throughout the area * * * [and, in addition to practical concerns], it is questionable whether such a geographic entity could fairly be characterized as a single District at all"). The Justice Department also identified significant issues arising under the 23rd Amendment (it would be rendered a nullity) and Article IV, 3 ("the Constitution appears intended to enunciate the general principle that the borders and land areas of States are not to be changed without their consent") . Id.. at 19. "Moreover, there is no indication that the people of the District of Columbia desire to become citizens of Maryland. The District has become a distinct political entity, with its own leaders, its own political, social and economic life." Id. Although these issues, of course, need not directly be addressed within the context of this case (in which the question presented is whether the Fifth Amendment requires Congress to cede jurisdiction over the District to the State of Maryland), they further emphasize the District's unique status.]

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Lastly, plaintiffs' Fifth Amendment claim is misconceived to the extent that it rests on the proposition that Congress and the President have purportedly denied them their "fundamental right" to participate in congressional elections. The right to vote for congressional representatives is governed by Article I, 2, as amended by the Fourteenth Amendment (the House of Representatives), and Article I, 3, as amended by the Seventeenth Amendment (the Senate). See Wesberry v. Sanders, 376 U.S. 1, 17 (1964) (Article I, 2, "gives persons qualified to vote a constitutional right to vote and to have their votes counted"); Harper v. Virginia Bd. of Elections, 383 U.S. 663, 665 (1966) ("the right to vote in federal elections is conferred by Art. I, 2, of the Constitution"). These provisions governing the composition of Congress, not the Fifth Amendment, are controlling in this case. Because plaintiffs concede (Mem. at 8), as they must, that these provisions limit the right to vote in congressional elections to "the people of the States," i.e., that the Constitution itself denies District residents the right to be represented in Congress, their argument under the Fifth [page 6] Amendment that they have been unfairly disenfranchised cannot be sustained. [footnote 3: In addition to their equal protection claim, plaintiffs also argue in their summary judgment motion that District residents are entitled under the Guarantee Clause to a State government without interference by Congress. We have previously addressed this issue on several occasions in these proceedings, and nothing said in support of plaintiffs' summary judgment motion warrants further response.]

CONCLUSION

For the foregoing reasons, the Adams plaintiffs' motion for summary judgment should be denied.

Respectfully submitted,

DAVID W. OGDEN, Acting Assistant Attorney General

WILMA A. LEWIS, United States Attorney