IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Twenty Citizens of the District of Columbia, Plaintiffs

versus

William Jefferson Clinton, et al, Defendants

PLAINTIFFS’ OPPOSITION

TO THE FEDERAL DEFENDANTS’ MOTIONS

TO DISMISS THE CASE

Index

II: THE PLAINTIFFS STATE VIABLE CLAIMS 38

CONCLUSION 74

{PAGE 1}

Defendants Robin H. Carle in her official capacity as Clerk of the United States House of Representatives and Wilson Livingood in his official capacity as the Sergeant at Arms of the House of Representatives (the "House Officers") filed a Motion to Dismiss this case. Defendant William Jefferson Clinton in his official capacity as the President of the United States has also filed a Motion to Dismiss this case. This memorandum responds to the arguments in both Motions.

I: THE COURT HAS JURISDICTION

Before proceeding to the merits of the Defendants’ various arguments, it must be noted that the Federal Defendants’ arguments against jurisdiction are based on misrepresentation of the relief the Plaintiffs seek in the case. On the first page of the House Officers’ combined Motion and Memorandum ("HOMM"), for instance, the Defendants assert that the Plaintiffs seek "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[.]" Similarly, on the first page of Defendant Clinton’s Memorandum in support of his Motion to dismiss ("CM"), the Defendant asserts that the Plaintiffs "ask the court . . . 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-exiting sovereign state." Such assertions are manufactured by the Defendants. To the extent that the Defendants’ arguments lean on such straw men, their arguments necessarily fall.

The Complaint makes it clear that the Plaintiffs ask only for declaratory judgments and for injunctions barring enforcement of certain action (Complaint at pp. 22-28). The Plaintiffs ask the Court to order the Federal Defendants to cease doing things they do now and to cease enforcing laws in an unconstitutional fashion. The Plaintiffs do not ask this Court for any order, directive, or mandate that any Federal Defendant take any action. The Plaintiffs certainly do not ask this Court to direct Congress to do anything or to monitor Congress for any reason. {PAGE 2}

The possibilities that the District of Columbia might be a State or might be unified with a State are mentioned in the Complaint for two and only two reasons. First, under the Constitution and in light of the Plaintiffs’ claims in this case (see infra 39-74), it’s reasonable to observe that at least these two alternatives to the status quo would obviate the continual violations of the Plaintiffs’ rights which are at issue in this case. Placing these alternatives on the table simply demonstrates that, in ruling that Congress and the Defendants violate the Plaintiffs’ rights, the Court would not necessarily place the Plaintiffs and the District of Columbia in limbo.

References to these alternatives in the injunctions demanded in the Complaint also serve as "sunset" provisions for the injunctions. Such "sunset" provisions merely reflect the Court’s ability to act in awareness of foreseeable facts. The Plaintiffs could just as well amend their Complaint to remove all reference to the viable, constitutional alternatives to the status quo, and the case would be no different from what it is now.

In summary, the Court can take jurisdiction of the Plaintiffs’ claims and address them on the merits; if the evidence supports the Plaintiffs’ relief, the Court can dole it out as the Court sees fit.

A: THE PLAINTIFFS HAVE STANDING

The House Officers challenge the Plaintiffs’ standing to bring this action (HOMM at 3-5). {FOOTNOTE 1: Defendant Clinton also challenges standing (CM at 6), but Defendant Clinton’s argument is more properly treated as a receptacle or preface for the Defendant’s arguments that the President is immune from suit, so Defendant Clinton’s standing argument will be answered as a part of the Defendant’s immunity argument (infra, at pages 27-37).} The House Officers have previously raised the same question of standing in their Opposition to the Plaintiffs’ Application for a Three-Judge District Court (filed August 4, 1998 at pages 4-6) and the Plaintiffs addressed the question in Plaintiffs’ Reply to Defendants House Officers’ Challenge to Standing Vis-á-Vie the House Officers (filed August 14, 1998). {PAGE 3}

1: The Standing Doctrine

The standard for addressing standing has previously been set out, with particularity, in Plaintiffs’ Opposition to the Motion of Defendant District of Columbia Financial Responsibility and Management Assistance Authority to Dismiss the Complaint as to It (filed August 4, 1998, at pp. 3-5), which discussion is incorporated here by reference. Of the four elements of standing (injury in fact, causation, redressability, and prudential limitations) only the second and third (causation and redressability) need be addressed here. The Plaintiffs’ previous demonstration that they have suffered "injury in fact" and that there are no "prudential limitations" on standing in this case (Plaintiffs’ August 4 Opposition at pp. 5-13 and 28-37) are unchallenged. {FOOTNOTE 2: The House Officers admit as much in footnote 3 of their memorandum. President Clinton, for his part, only challenges the "redressability" element of standing.}

2: Application of the Defendants’ Arguments to the Facts of this Case

The gist of the House Officers’ challenge to the Plaintiffs’ standing is that "there is no causal nexus between the Plaintiffs’ alleged injury -- the lack of congressional representation for District residents -- and the challenged conduct" of the House Officers; the "actions of the House Offices have simply not ‘caused’ the plaintiffs’ alleged injury." {FOOTNOTE 3: The House Officers follow these statements with a list of citations to provisions which, they assert, mandate the differential treatment of the District of Columbia. This aspect of their argument will be addressed separately in the section of the memorandum addressing the purportedly "unique" status of the District of Columbia (infra at pages 41-46).} (HOMM at 4). This is not accurate.

The House Officers are dispositive links in the "chain of causation," Public Citizen v. Lockheed Aircraft Corp.. 565 F.2d 708, 717 n.31 (D.C. Cir. 1977), of the apportionment process, as was set out in Plaintiffs’ Reply to Defendants House Officers’ Challenge to Standing Vis-á-Vie the House Officers (filed August 14, 1998) at pp. 4-5. This is why the Clerk of the House, for instance, was among the "appropriate federal defendants" in U.S. Dept. of Commerce v. {PAGE 4} Montana, 503 U.S. 442, 446 (1992), and Franklin v. Massachusetts, 505 U.S. 788 (1992), which were concerned with apportionments of representation in Congress. {FOOTNOTE 4: Defendant Clinton is a link in the apportionment chain, but is also in another chain of causation of injuries to the Plaintiffs, since he is charged with enforcing many dictates of Congress pertaining uniquely to the District of Columbia (Complaint at ¶ 7). Defendant Clinton’s "standing" arguments are addressed elsewhere (see note 1, supra).}

The first link in the chain, however, is Congress’s determination what geographical areas will be states, whether residents of federal enclaves will have rights as state citizens, and what enclaves or former portions of the District of Columbia would be parts of existing States. See, e.g., An Act to Provide for the Admission of the State of Hawaii into the Union, Pub. L. No. 86-3, § 16, 73 Stat. 4, 11-12 (1959); An Act to Provide for the Admission of the State of Alaska into the Union, Pub. L. No. 85-508, §§ 10(c), 10(e), 11(b)(ii), 72 Stat. 339, 345-46, 347 (1958); see infra at 41-50 (discussing extension of the franchise to federal enclaves)). The Federal Defendants are thus links in a chain started with these determinations made by Congress. Since this chain results in discriminatory treatment of the Plaintiffs, trenching on their fundamental rights (Complaint at ¶¶ 74-75, 77-87, 113-16), the Defendants’ actions, as dispositive links in the chain enforcing these determinations, may be declared to violate the rights of the Plaintiffs and may be enjoined.

The House Officers also assert that the Plaintiffs claims are not remediable against the House Officers because they lack any "ability to compel the House or Senate to legislate" and they assert that the Plaintiffs’ claim is not redressable against the House Officers because the outcome "depends on the unfettered choices" of non-parties (HOMM at 5). Since the Plaintiffs don’t ask the Court to enter an order mandating or directing any legislation, these arguments are bootless.

It requires no "unfettered choices" by anyone but the President for the President to not enforce unconstitutional apportionments or, for instance, to not appoint a Control Board to run {PAGE 5} the District. It requires no "unfettered choices" of anyone but the Clerk or Sergeant at Arms for the Clerk or Sergeant at Arms to not enforce unconstitutional apportionments. The Federal Defendants are susceptible to declarations that their official actions violate the rights of the Plaintiffs and all are susceptible to injunctions that they not further violate the Plaintiffs’ rights.

3: Conclusion: The Plaintiffs Have Standing Against All Federal Defendants

In accord with the Plaintiffs’ previous discussion, Plaintiffs’ Reply to Defendants House Officers’ Challenge to Standing Vis-á-Vie the House Officers (filed August 14, 1998), the Plaintiffs have standing (1) because they have suffered injuries in fact, (2) because the Federal Defendants are in the chain of causation of the injuries, (3) because the Plaintiffs’ injuries can be remedied by declarations that they have certain rights and that those rights are violated in part by the Defendants’ actions and by injunctions to prevent the Defendants from so violating the Plaintiffs’ rights, and (4) because there are no prudential limitations on standing.

B: THIS CASE PRESENTS NO POLITICAL QUESTIONS

The Defendants House Officers (HOMM at 10-12) and Defendant Clinton (CM at 5) assert that this case is barred by the political question doctrine. The House Officers’ arguments are brought to bear on the Plaintiffs’ case in two ways. The House Officers argue that the injunctive relief the Plaintiffs seek is barred by the doctrine. Since the House Officers completely misrepresent the relief the Plaintiffs seek, these particular arguments are necessarily pointless.

Alternatively, the House Officers argue that the Plaintiffs’ Guarantee Clause claim (Count Two) is barred by the political question doctrine; this same argument is also made by Defendant Clinton. While there is some authority for this proposition, it nevertheless fails. This application of the Defendants’ political question arguments will be discussed later in this memorandum, as part of the Plaintiffs’ discussion of the Guarantee Clause claim (see infra at 57-59).

{PAGE 6}

1: The Political Question Doctrine

The political question doctrine is a tool clarifying "the relationship between the judiciary and the coordinate branches of the Federal Government." Baker v. Carr, 369 U.S. 186, 210 (1962). Thus, under the political question doctrine, the courts may decline to interfere with political choices which should be made by the legislature. On the other hand,

Baker, supra, 369 U.S. at 209, 217 (quoting Nixon v. Herndon, 273 U.S. 536, 549 (1927)). Thus, claims may not be dismissed as "political questions" merely because they arise from decisions made by the Legislative or Executive Branches. Id., 369 U.S. at 228-29.

At least since Baker (challenging apportionments in the Tennessee state legislature), apportionment cases have never been dismissed wholesale under the political question doctrine.

Montana, supra, 503 U.S. at 458-59. Although apportionment is primarily the responsibility of legislatures, when legislatures "fail[] in that task, the responsibility falls on the District Court and it should proceed with dispatch to resolve this seemingly interminable problem." Chapman v. Meier, 420 U.S. 1, 3, 27 (1975) (citations omitted). {PAGE 7}

The Supreme Court has identified six indicia of "political questions. If these indicia are "inextricable from the case at bar," the case would probably present a "political question."

Baker, supra, 369 U.S. at 217. Although the six indicia in the Baker list are not completely separate and independent from one another, Nixon v. United States, 506 U.S. 224, 228-29 (1993), the court should start its analysis by determining whether "the text in question" commits the matter at bar to a particular branch of the government. Id., citing Baker and Powell v. McCormack, 395 U.S. 486, 519 (1969). Every case must be analyzed on its own merits and no case can be resolved by "semantic cataloguing." Id. 369 U.S. at 217; Nixon, supra, 506 U.S. at 252-54 (Souter, J., concurring).

2: Application of the Defendants’ Arguments to the Facts of this Case

The House Officers’ primary application of the political question doctrine is premised on their attribution of an "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" to the Plaintiffs. On the basis of this straw man, the House Officers declare that the case "raises inherently political questions that are not justiciable." (HOMM at 10). The Plaintiffs’ case, however, seeks declarations that they have certain rights, declarations that their rights are being violated, and injunctions to stop the violations of their rights (see supra at 1-2). This is well-mapped ground, wholly within the jurisdiction and competency of the federal courts, since the {PAGE 8} most important task of the federal courts is addressing and vindicating the constitutional rights of the citizens. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 166 (1803).

Against the Plaintiffs’ threshold showing, the Defendants have not shown a "textually demonstrable constitutional commitment of the issue[s] to a coordinate political department," Baker, supra, 369 U.S. at 217, nor could they. Plaintiffs assert that the Federal Defendants actions violate the Plaintiffs’ rights to the equal protection of the laws and to republican forms of government (Complaint at ¶¶ 69-71, 73, 78, 84, 87, 103-04, 107-08, 110-11, 117-18). If any provision of the Constitution "commits" these issues for review and consideration anywhere it is Article III, § 2, ¶ 1, cl. 1, which provides that "[t]he judicial Power shall extend to all Cases . . . arising under this Constitution," because the Plaintiffs’ claims arise under the Constitution. See Powell, supra, 395 U.S. at 549 ("[I]t is the responsibility of this Court to act as the ultimate interpreter of the Constitution."). Certainly, nothing in the plain text of the Equal Protection provisions (see infra, pp. 39, 40-41) or in the plain text of the Guarantee Clause (see infra, pp. 57-74) "demonstrably commits" review of violations of those provisions elsewhere than to the federal courts. See Wesberry v. Sanders, 376 U.S. 1, 6-7 (1964) (the fact that Congress has power over an issue does not strip the courts of the power "to protect the constitutional rights of individuals from legislative destruction").

Second, the Defendants have not shown that the Court "lack[s] judicially discoverable and manageable standards for resolving" these questions, Baker, supra, 369 U.S. at 217. Rather, the questions in this case turn upon well-recognized, judicially-fashioned doctrines and rules of constitutional law (see infra at 38-74 (discussion of substantive claims in this case)).

Third, the Defendants have not shown that it is impossible to decide these questions "without an initial policy determination of a kind clearly for nonjudicial discretion," Baker, supra, 369 U.S. {PAGE 9} at 217. The existence and nature of the constitutional rights at issue in this case do not depend on "initial policy determinations" of any kind. {FOOTNOTE 5: Any "policy determinations" which might follow from remedies demanded in the case are extraneous to the merits of this case and do not determine the questions presented in the case.}

Fourth, the Defendants have not shown that it is "impossible" for the Court to address this case "without expressing lack of the respect due coordinate branches of government," Baker, supra, 369 U.S. at 217. When a court performs its assigned duty of deciding whether legislative action is consistent with the Constitution, there can be no "lack of respect" for any institution, see id. at 226, since the courts exist precisely to perform such duties. U.S. Const., art. III, § 2, ¶ 1, cl. 1. Further, it would insult the Court’s dignity to suggest that it best pays "respect" to other Branches of government by ignoring the other Branches’ violations of the Constitution. See Powell, supra, 395 U.S. at 549. {FOOTNOTE 6: "Our system of government requires that federal courts on occasion interpret the Constitution in a manner at variance with the construction given the document by another branch. The alleged conflict that such an adjudication may cause cannot justify the courts’ avoiding their constitutional responsibility." (citations omitted).}

Fifth, the Defendants have not shown an "unusual need for unquestioning adherence to a political decision already made," Baker, supra, 369 U.S. at 217, and, sixth, they have not shown any "potentiality of embarrassment from multifarious pronouncements by various departments on one question," id. While it’s not wholly clear what these last two elements might mean in regard to this case other than as alternative expressions of the other elements, see Nixon, supra, 506 U.S. at 228-29 (elements of Baker analysis are interwoven and overlap), the suggestion that a "political decision" should prejudge or predispose this case must be dismissed out of hand. The exercise of constitutional rights cannot be made to depend on popularity or a majority’s affirmation that a minority have the rights or are entitled to exercise them. Avery v. Midland County, Texas, 390 {PAGE 10} U.S. 474, 481 n.6 (1968); Carrington v. Rash, 380 U.S. 89, 94 (1965).

The House Officers assert that Nixon v. United States, 506 U.S. 224 (1993), as "analogous" to the instant case (HOMM at 10-11). Nixon concerned a challenge to internal procedures the Senate used to address a bill of impeachment of a District Judge. The Supreme Court applied Baker v. Carr to test for the presence of a political question. The key "text" at issue in the case, according to all parties, was Article I, Section 3, Clause 6 of the Constitution, which provides, in pertinent part, that "[t]he Senate shall have the sole Power to try all Impeachments." The plaintiff in Nixon focused on the word "try," asserting that the Senate procedures did not amount to "trial" before the Senate. 506 U.S. at 228. The Court, however, focused on the word "sole," finding that it meant "the Senate alone shall have authority to determine whether an individual should be acquitted or convicted." 506 U.S. at 230-31 (emphasis added).

Thus, Nixon presented a tension between two constructions of the "text" at issue. The Court resolved this tension by looking for any other provision of the Constitution which might restrain the Senate’s autonomy in defining impeachment procedures. The Court concluded "there is no separate provision of the Constitution that could be defeated by allowing the Senate final authority to determine the meaning of the word ‘try’" under art. I, § 3, cl. 6. 506 U.S. at 237 (emphasis added). Thus, in the absence of any provision of the Constitution which might limit the power, the Senate has "sole" power to define impeachment procedures.

The House Officers proceed too quickly to assert that the Plaintiffs’ claims in this case are "textually committed" to the discretion of the Congress in the same manner as were the claims in Nixon. The "text" of the Constitution on which the Defendants hang their assertion is Article I, {PAGE 11} Section 8, Paragraph 17, {FOOTNOTE 7: Reference to Paragraph as well as Section and Clause of the Constitution is required in this case, since the Plaintiffs’ claims distinguish and discuss the two discrete (grammatical and logical) Clauses in the seventeenth (grammatical and logical) Paragraph of Section 8 of Article I.} Clause 1 of the Constitution, which provides that, "[t]he Congress shall have the power . . . [t]o exercise exclusive legislation in all cases whatsoever over such district (not exceeding ten miles square) as may, by cession of particular States, and the acceptance of Congress, become the seat of government of the United States . . ." ("the District Clause"). The House Officers focus on the word "legislation," saying that

(HOMM at 11). Of course, this argument is entirely irrelevant to the instant case. The Plaintiffs do not seek an order of this Court "to compel Congress to legislate," period.

Rather, this case seeks declarations that certain manifestations of Congress’s "exercise of legislative authority" over the District of Columbia violate other provisions of the Constitution. Indeed, other provisions of the Constitution are "defeated by allowing the [Congress] final authority to determine," Nixon, 506 U.S. at 237, the extent and results of exclusive legislation over the District of Columbia; the Plaintiffs’ constitutional rights are violated (see infra at 38-74).

The House Officers admit the validity of this endeavor on the part of the Plaintiffs, saying (in the midst of the very passage quoted above) that, "the Constitution limits in many different ways the manner in which Congress can exercise its legislative authority when it chooses to legislate[.]" (HOMM at 11 (emphasis added)). Specifically, the Equal Protection provisions of the Constitution and the Guarantee Clause of the Constitution "limit the manner in which Congress {PAGE 12} can exercise its legislative authority when it chooses to legislate."

Thus, Nixon is inapposite. It involved only internal procedures used by the Senate and the plaintiff in Nixon failed to show that any provision of the Constitution was violated by the Senate’s actions. In contrast, the instant case arises from the external impact of Congressional action on the fundamental rights of the Plaintiffs and the Plaintiffs show (see infra at 38-74) that Congressional action under the purported authority of the District Clause results in violations of their fundamental constitutional rights. Thus, this case is justiciable. Compare Armstrong v. United States, 759 F.2d 1378, 1380 (9th Cir. 1985) (a matter is justiciable if it "does not require delving into the internal records or workings of Congress.").

3: Conclusion: this Case Does Not Present any Political Question

It is just too late in the day to assert that a plea for inclusion in apportionments can be dismissed as a "political question." {FOOTNOTE 8: Defendant Clinton is represented by the Department of Justice, which has conceded this point in an unrelated case, although the Department may quarrel with the definitions of the rights implicated. See Montana, supra, 503 U.S. at 457.} See, e.g., Giles v. Harris, 189 U.S. 475 (1903) (dismissing as a political question the claim of "a colored man" excluded from enrollments on the voting lists in Alabama). In conclusion the instant case is not precluded by the political question doctrine, and the Court can proceed to address the case on the merits. Montana, supra, 503 U.S. at 458-59; Chapman, supra, 420 U.S. at 27; Powell, supra, 395 U.S. at 549.

C: THIS CASE DOES NOT ELIDE THE SEPARATION OF POWERS

The House Officers argue that the separation of powers doctrine bars the court from granting relief to the Plaintiffs (HOMM at 6). The argument is largely premised on the same fundamental misrepresentation of the relief demanded in the case discussed above (at pp. 1-2). Since the {PAGE 13} Plaintiffs do not employ the straw man attributed to them by the House Officers, the separation of powers argument propounded by the House Officers fails.

1: The Separation of Powers Doctrine

The separation of powers doctrine arises from the fact that the Constitution creates three Branches of government, granting different powers and tasks to each. No Branch has the power to do the tasks of another. Thus, each Branch is "limited to the exercise of the powers appropriate to its own [tasks] and no other." Kilbourn v. Thompson, 103 U.S. 168, 191 (1881); see also Clinton v. Jones, 117 S.Ct. 1636, 1647 (1997). The Branches are not autonomous, however, for each Branch depends on and is "checked and balanced" by the other two. See 1 Donald D. Rotunda & John E. Nowak, Treatise on Constitutional Law; Substance and Procedure §3.12 (2nd ed. 1992); Thomas O. Sargentich, The Limits of the Parliamentary Critique of the Separation of Powers, 34 Wm. & Mary L. Rev. 679, 732-34 (1993). Specifically, the Judicial Branch reviews legislative acts for conformity with the Constitution. Marbury, supra, 5 U.S. at 166 & 180;; see also Clinton, supra, 117 S.Ct. at 1648.

2: Application of the Defendants’ Arguments to the Facts of this Case

The House Officers quote McCray v. United States, 195 U.S. 27 (1904), saying "the judicial [Branch] cannot prescribe to the legislative [Branch] of the government limitations upon the exercise of its acknowledged powers." (HOMM at 6, quoting McCray, 195 U.S. at 57). The Supreme Court said this in the course of discussing whether courts could review the "purpose or motive" of Congress’s actions, according to a court’s own sense of what is "unwise." 195 U.S. at 54-59 (emphasis added). While the Court barred such review, the Court also said that,

195 U.S. at 63. Thus, McCray certainly does not stand for the proposition that the Judicial Branch cannot review the acts of the Legislative Branch for their constitutionality.

The House Officers append a footnote to their citation of McCray, listing three more cases said to support the assertion that the instant case is barred by the political question doctrine. The first, Keener v. Congress of the United States, 467 F.2d 952 (5th Cir. 1972), concluded an individual’s suit to obtain a writ of mandamus "ordering [Congress] to return to some ‘uniform method of valuation’ for United States currency[,]" after having "abandon[ed] the gold standard" in 1934. Id., 467 F.2d at 953. Since the Plaintiffs in the instant case are not seeking a writ or order that Congress do anything, see supra at pages 1-2, Keener is irrelevant to the instant case.

The House Officers also cite Adams v. Richardson, 871 F.Supp. 43 (D.D.C. 1994), in support of the proposition that the Court should dismiss a case "challenging [a] Congressman’s ‘legislative discretion’" (HOMM at 6, n.5). In the portion of the opinion in Adams cited by the House Officers, the court stated:

871 F.Supp. at 45 (citations omitted). Clearly, Adams is irrelevant to the instant case. The Plaintiffs don’t care one whit "when and how" any member of Congress "addresses constituents," whether any member "keeps the electorate uninformed;" nor how any member of Congress "runs a campaign or deals with constituents." And these Plaintiffs certainly do not assert any right "to {PAGE 15} have a Congressman make any particular decision or take any particular action."

The last case cited by the House Officers in support of their separation of powers argument is Kilbourn v. Thompson, 103 U.S. (13 Otto) 168 (1881). Kilbourn, on its facts, stands diametrically against the doctrine asserted by the House Officers and supports the Plaintiffs’ case.

Kilbourn was brought by a private citizen who had been locked in the District of Columbia jail by the Sergeant at Arms of the House (acting with the Clerk of the House), under orders of the House, on a "charge" of contempt of Congress. The Supreme Court’s discussion of the separation of powers doctrine, 103 U.S. at 190-91, was a predicate to the Court’s finding that the House had elided the separation by assuming judicial powers. Therefore, to vindicate the Constitution, the judiciary had to restrain such unconstitutional action by the House.

103 U.S. at 192 (emphasis added). Pressing on, the Supreme Court quoted an English judge for the rule that, "if the Speaker by authority of the House order[s] an illegal act, though that authority shall exempt [the Speaker] from question, his order shall no[t] . . . justify the person who executed [it.]" 103 U.S. at 202 (citation omitted; emphasis added). In short, the courts must watch Congress "with vigilance" and, when Congress oversteps its bounds to violate the rights of the citizens, the courts can and must "most carefully scrutinize" the action. If the action is unconstitutional, those charged with carrying it out may be restrained. {PAGE 16}

Some of the defendants in Kilbourn were members of the House. The Court ruled that they were entitled to be dismissed from the case, but the case was remanded for further proceedings against the Sergeant at Arms (and, presumably, against the Clerk, although the record is not clear on this). Thus, Kilbourn certainly supports the proposition that the House Officers, in their official capacities, can be subject to declaratory judgments and injunctions against enforcement of policies and actions which violate the citizens’ rights. {FOOTNOTE 9: Before affirming that the members of Congress who had been named as defendants in the case were entitled to be dismissed, however, the Court observed: "[i]t is not necessary to decide here that there may not be things done [in Congress] of an extraordinary character, for which the members who take part in the act may be held legally responsible. If we could suppose the members of [Congress] so far to forget their high functions and the noble instrument under which they act as to imitate the Long Parliament in the execution of the Chief Magistrate of the Nation, or to follow the example of the French Assembly in assuming the function of a court for capital punishment, we are not prepared to say that such an utter perversion of their powers to a criminal purpose would be screened from punishment by the constitutional provision for freedom of debate." 103 U.S. at 204-05. From the point of view of the citizens of the District of Columbia, Congress has been a very long "parliament," having ensconced itself as the omnipotent, perpetual, untouchable government of the District for 197 years. Compared to Congress, the English "Long Parliament" was evanescent, ignoring the people’s will and ruling without their active consent for a mere 13 years. See Edmund S. Morgan, Inventing the People, 64-77 (1988).}

Finally, the House Officers assert that any injunction against the House Officers’ enforcement of current apportionment of representation in Congress "would interfere with the House’s exclusive authority [under Article I, § 5, cl. 1 of the Constitution] to ‘be the Judge of the Elections, Returns and Qualifications of its own Members’" (HOMM at 6-7, n.6), citing Reed v. County Commissioners of Delaware County, 277 U.S. 376 (1928). This assertion ignores the fact that the House does not have absolutely "exclusive authority" under Article I, § 5, cl. 1 of the Constitution. Powell v. McCormack established that, "in judging the qualifications of its members[,] Congress is limited to the standing qualifications prescribed in the Constitution." 395 U.S. 486, 550 (1969). The instant case does not challenge the "qualifications" prescribed in the {PAGE 17} Constitution for representation in Congress; it challenges the discriminatory exclusion of the citizens of the District of Columbia from apportionments of representation in Congress.

Reed, moreover, provides no support whatsoever for the House Officers’ contention. Reed was a suit by members of a Senate committee to seize ballot boxes and records of an election held by the Commissioners. Dismissal of the Senators’ suit was affirmed by the Supreme Court on a finding that no act of Congress "authoriz[ed] the committee or its members, collectively or separately, to sue" to seize the materials. 277 U.S. at 388. Thus, even though the Senate may be the sole "Judge of the Elections, Returns and Qualifications of its own Members," the Senate does not have unlimited power under Article I, § 5, cl. 1 of the Constitution to do whatever it wishes.

Reed also states in "dictum," Powell v. McCormack, 395 F.2d 577, 592 (D.C. Cir. 1968), aff’d in relevant part (reversed in other parts), 395 U.S. 486 (1969), that the Senate may judge the qualifications of its members "without the aid of the House of Representatives or the executive or judicial department." This statement doesn’t countervail the rule that, in exercising its powers under Article I, § 5, cl. 1 of the Constitution, Congress "is limited to the standing qualifications prescribed in the Constitution[,]" Powell, supra, 395 U.S. at 550, or the doctrine (vide Powell generally) that the courts may properly entertain cases challenging the constitutionality of what Congress does with this powers. In short, Reed does not confer a general immunity for Congress to violate the rights of the Plaintiffs alleged in the instant case.

3: Conclusion: this Case Does Not Elide the Separation of Powers.

This case is not barred by the doctrine of separation of powers. Rather, the proper calling and power of this Court is to review cases arising under the Constitution and to enforce the Constitution. See Powell, supra, 395 U.S. at 549; Wesberry, supra, 376 U.S. at 6-7; Kilbourn, {PAGE 18} supra, 103 U.S. at 192, 202; Marbury, supra, 5 U.S. at 166, 180. Therefore, the Court has jurisdiction over the Plaintiffs’ claims and the Court has jurisdiction over the Defendants.

UNDER THE SPEECH OR DEBATE CLAUSE

The House Officers assert that the Plaintiffs’ claims against the House Officers "are also barred by the Speech or Debate Clause of the Constitution." (HOMM at 7-10).

1: The Speech or Debate Clause

The Speech or Debate Clause, art. I, § 6, ¶ 1, provides that, "for any Speech or Debate in either House, [Senators and Representatives] shall not be questioned in any other Place." The District of Columbia Circuit has provided a comprehensive statement of the law.

Walker v. Jones, 733 F.2d 923, 928-29, 931-32 (D.C. Cir.), cert. denied, 469 U.S. 1036 (1984) (footnotes omitted). {PAGE 19}

Generally, "congressional authorization for the questioned act is not sufficient to insulate the act from judicial scrutiny." Doe, supra, 412 U.S. at 315-16 & n.10; Kilbourn, supra, 103 U.S. at 200. "[T]he Speech or Debate Clause . . . does not immunize congressional action from judicial review." Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 513 (1975) (Marshall, J., concurring); compare United States v. Brewster, 408 U.S. 501 (1972).

2: Application of the Defendants’ Arguments to the Facts of this Case

Analysis of the question whether the Defendants House Officers are protected under the Speech or Debate Clause starts with focusing on the specific actions of the Defendants which are at issue in the case. Forrester v. White, 484 U.S. 219, 228 (1988). The only actions which are at issue in the instant case are certain actions which enforce and carry our prior Congressional determinations of apportionment of representation in Congress.

The Clerk is charged to certify to the chief executive of each State the number of Representatives apportioned to the State, as a portion of the whole number of Representatives defined by Congress, and the Clerk is charged to keep a roll of all Representatives and Representatives-elect, comprised of those persons, and those persons only, who are elected in accordance with the laws of the United States, specifically in accordance with the apportionments to the States previously certified by the Clerk (Complaint at ¶¶ 9-10). These actions are authorized under 2 U.S.C. §§ 2a(b) & 26 and under Rule III(1) of the Rules of the United States House of Representatives. These laws are final, codified acts of Congress to define and provide for apportionments of representation in Congress on the basis of prior Congressional decisions who shall be included in the definitions of "States" for apportionments.

The Sergeant at Arms is charged to admit to the Hall of the House of Representatives only those Representatives upon the Clerk’s Roll (and certain other staff and assistants not at issue in {PAGE 20} this case) and to bar all other persons from admission during the sessions of the House (Complaint at ¶ 11). These actions are authorized under 2 U.S.C. § 78 and under Rules IV and XXXII of the Rules of the United States House of Representatives, which are also among the final, codified acts of Congress to define and provide for apportionments of representation in Congress on the basis of prior Congressional decisions who shall be included in apportionments.

Thus, the only actions of the House Officers which are at issue in this case are official acts taken under the authority of final Acts of Congress. See Pub. L. No. 5, 37 Stat. 13 (1911); Pub. L. No. 291, 55 Stat. 761-762 (1941); Pub. L. No. 85-508, § 9, 72 Stat. 339, 345 (1958); Pub. L. No. 86-3, § 8, 73 Stat. 4, 8 (1959). The House Officers are not performing legislative acts in any way, shape, or form. Quite to the contrary, the acts at issue were dictated by Congress precisely to avoid quasi-legislative judgments who gets what representation and who gets to be included in apportionments. Franklin, supra, 505 U.S. at 791-94; Montana, supra, 503 U.S. at 447-56; see also Emanuel Celler, Congressional Apportionment - Past, Present, and Future, 17 Law and Contemp. Probs. 268 (1952).

The House Officers are charged with enforcing all these prior determinations made by Congress. Insofar as these consummated legislative acts result in discriminatory treatment of the Plaintiffs, trenching on their fundamental rights (Complaint at ¶¶ 79-87, 114-116), the actions of the Defendants which enforce these determinations may be declared to violate the rights of the Plaintiffs and may be enjoined. Eastland, supra, 421 U.S. at 513 (Marshall, J., concurring); Doe, supra, 412 U.S. at 316 n.10; Kilbourn, supra, 103 U.S. at 200. They are not protected by the Speech or Debate Clause. Walker, supra, 733 F.2d at 929, citing Brewster, 408 U.S. at 528 and Gravel, supra, 408 U.S. at 626. This is precisely why the Clerk of the House was among the "appropriate federal defendants" in U.S. Dept. of Commerce v. Montana, 503 U.S. 442, 446 {PAGE 21} (1992), and Franklin v. Massachusetts, 505 U.S. 788 (1992), which were concerned with apportionments of representation in Congress.

The case of Powell v. McCormack, 395 U.S. 486 (1969), disposes of any remaining question, under these facts, whether the House Officers are entitled to immunity under the Speech or Debate Clause. Powell was brought by Adam Clayton Powell, who had been duly elected to the House of Representatives but barred from taking his seat. Mr. Powell sued for declaratory and injunctive relief on claims that Congress had violated the constitution when it prevented him from taking his seat. The Clerk and the Sergeant at Arms of the House were among the defendants, for they had executed Congress’ orders to bar Powell from the House and to deny to him various privileges as a member of the House, 395 U.S. at 489-93, but they asserted that the Speech or Debate Clause barred Mr. Powell’s suit. In ruling on this question, the Supreme Court observed:

395 U.S. at 503-05 (footnotes omitted). The Court disposed of the House Officers’ attempts to stretch the Clause to insulate themselves in Powell with the observation that,

395 U.S. at 505 (footnote omitted). Thus, the Court found that the members of Congress in the suit were entitled to immunity, but the House Officers were not entitled to immunity, so the Court {PAGE 22} remanded the case to the District Court with instructions to enter declaratory judgment in favor of Mr. Powell and for further proceedings. 395 U.S. at 550.

Mr. Powell’s case is instructive in many ways. Mr. Powell’s injury was authored by Congress, but executed by others, including the Clerk and Sergeant at Arms of the House; the same pattern is alleged by the Plaintiffs in the instant case. The Congressional authors of Mr. Powell’s injury were entitled to insulation from suit behind the Speech or Debate Clause and the Plaintiffs in the instant suit acknowledge that the members of Congress who originally caused their injuries are likewise entitled to immunity behind the Clause. The Officers responsible for executing the directions of Congress against Mr. Powell were not entitled to the protection of the Speech or Debate Clause, however. These same considerations apply to the instant case. "That House [Officers] are acting pursuant to express orders of the House does not bar judicial review of the constitutionality of the underlying legislative decision." 395 U.S. at 505.

The House Officers also assert they are entitled to immunity, citing Consumers Union of U.S. v. Periodical Correspondents’ Ass’n, 515 F.2d 1341 (D.C. Cir. 1975), as "dispositive of the claim[s]" arising under enforcement of the House Rules (HOMM at 9-10; footnote omitted). The plaintiff in Consumers Union sought admission of its correspondents to the press galleries of Congress to report on the proceedings of Congress. Admission was barred under a Rule of the House. Consumers Union sued the Sergeant at Arms of the House, among others, to compel admission, alleging violations of various constitutional rights. 515 F.2d at 1342-46.

The court declined to reach the merits, however, finding the case was nonjusticiable under the Speech or Debate Clause "because it involves matters committed by the Constitution to the Legislative Department as to which the acts of the appellants, under the circumstances, did not breach the limits of legislative immunity." 515 F.2d at 1346. This was because:

{PAGE 23}

515 F.2d at 1347, 1348, 1350 (citations omitted; emphasis added). Thus, Consumers Union’s desire to be present during ongoing sessions of Congress was subject to Congress’s power to determine who, other than members of Congress, would have access to Congress while it was in session. The Rule which barred Consumers Union was crafted to protect those ongoing sessions of Congress and the members of Congress from disruption by nonmembers.

But the Plaintiffs in the instant case are not seeking to be present during any Congressional proceedings, nor to have access to Congress of any kind. Enforcement of the House Rules by the House Officers is not challenged in this case because the Rules exclude nonmembers from the House. Enforcement of the Rules is challenged in this case because the composition of the House (the apportionments of representation in the House) violates the rights of the Plaintiffs, as set forth in the discussions of the substantive claims in this case (see infra at 38-74). {FOOTNOTE 10: In Consumers Union, the District Court ruled "it is well established that a congressional rule which infringes upon the constitutional rights of persons other than Congressmen presents a proper question for the judiciary[.]" 515 F.2d at 1348, n.16 (citations omitted). Though the Circuit Court opined it didn’t share the District Court’s broad reading of authority, the Court said an argument for the broad rule "might be made in different and isolated contexts." The instant case is just such a "different and isolated context" where such a constitutional violation is a proper question for judicial review. Here, enforcement of the House Rules is being used to shield an unconstitutional result, rather than as proper protection of a wholly constitutional process.} {PAGE 24}

The House Officers also analogize the instant case to Browning v. Clerk, U.S. House of Representatives, 789 F.2d 923 (D.C. Cir. 1986), asserting that, "[o]bviously, 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," (HOMM at 9-10, n.8). The similarity of the relation is not at all "obvious," however.

Browning arose from a complaint by an Official Reporter of the House (employed, inter alia, to transcribe committee proceedings) that she had been fired for discriminatory reasons. 789 F.2d at 924-25. The Court focused on the fact that the Speech or Debate Clause protects decisions concerning employees whose "duties are an integral part of the legislative process, such that they are directly assisting members of Congress in the ‘discharge of their functions[.]’" 789 F.2d at 929. The Court found that Ms. Browning was responsible for creating the official records of proceedings, so future debates in Congress depended on the accuracy of her work. Id. The Court concluded that Ms. Browning’s dismissal was insulated from judicial review, because her functions as an Official Reporter "were directly related to the legislative process." Id.

In the instant case, the Plaintiffs do not seek to influence debates or have any input into the future proceedings of Congress. The accuracy or reliability of ongoing proceedings in Congress are in no way at issue in this case. This case, insofar as it concerns the House Officers, is about the composition of Congress (apportionment) and Congress cannot use the United States Code and Rules of the House to shape that composition in a manner which violates the Constitution and avoid judicial review and restraint of the violation. Powell, supra, 395 U.S. at 504-05.

Shifting ground slightly, the House Offices also argue that "[t]he Clerk’s transmission of apportionment numbers to the states is part of the census taking power which the Constitution {PAGE 25} vests in the Congress" (HOMM at 10). The Constitution provides that "[t]he actual Enumeration [on which basis representation is apportioned] shall be made . . . within every . . . Term of ten Years, in such Manner as [Congress] shall by Law direct." U.S. Const. art. I, § 2, cl. 3. Under the authority of this Clause, Congress delegated the taking of the census to the Secretary of Commerce, 13 U.S.C. § 141, not to the House Officers. The House Officers participate in the apportionment process at issue in this case after the taking of the census. {FOOTNOTE 11: Congress delegated to the President the responsibility of deriving a numerical apportionment based upon the census, using a mathematical formula which obviates discretionary adjustments. 2 U.S.C. § 2a(a); see Laurence F. Schmeckebier, The Method of Equal Proportions, 17 Law and Contemp. Probs. 302 (1952). Congress delegated to the Clerk of the House the responsibility to certify the results of the calculations to the States, 2 U.S.C. § 2a(b), and to enroll the names of the Representatives elected pursuant to the previous certifications, 2 U.S.C. § 26; Rule of the House III. Finally, Congress delegated to the Sergeant at Arms of the House the responsibility of physically enforcing correspondence between the actual persons who come through the door and the census, calculation, certification, and recordation delegated to others, 2 U.S.C. § 78; Rule of the House XXXII.}

If, arguendo, the House Officers can be said to "participate" in taking the census, the House Officers present no reason to conclude that the means, methods, results, purposes, and applications of the census are somehow wholly immune from judicial review. In fact, the taking of the census and its repercussions are reviewable. See Montana, supra, 503 U.S. 442; Franklin, supra, 505 U.S. 788. While the Speech or Debate Clause might insulate members of Congress from defending their decision to confer the various post-census responsibilities on the Defendants, neither that Clause nor the Census Clause bars judicial review of the resulting apportionment process. Powell, supra, 395 U.S. at 505; see also Doe, supra, 412 U.S. at 316 n.10 ("[C]ongressional authorization for the questioned act is not sufficient to insulate the act from judicial scrutiny."); Kilbourn, supra, 103 U.S. at 200. {PAGE 26}

Finally, underlying all their other assertions, the House Officers assert that the Speech or Debate Clause "clearly immunizes Congress itself against plaintiffs’ effort here to force Congress to legislate." (House Officers’ memorandum at 8). As has been discussed above at pages 1-2, no part of the relief sought in this case is an order or mandate of the court that Congress "legislate."

3: Conclusion: the House Officers Are Not Immune From Suit

The House Officers in this case can no more rely on the Speech or Debate Clause to insulate them from accountability for actions which violate the Plaintiffs’ rights than the same House Officers could in Powell, supra, 395 U.S. 486. Immunity under the Speech or Debate Clause "is justified and defined by the functions it protects and serves, not by the person to whom it attaches. . . . [It is] the nature of the function performed, not the identity of the actor who performed it, that inform[s] immunity analysis." Forrester, supra, 484 U.S. at 228. Thus, the Sergeant at Arms and the Clerk don’t enjoy immunity only because they hold these offices or because these Officers have been granted immunity in other cases.

The actions at issue in this case do not concern "the processes of the nation’s elected representatives leading up to the formulation of legislative policy and the enactment of laws[.]" Hutchinson, supra, 443 U.S. at 126-27 (emphasis added). The actions at issue in this case -- enforcement of past legislation -- are not part and parcel of the ongoing legislative process, Gravel, supra, 408 U.S. at 626, so they have no Speech or Debate protection, Walker, supra, 733 F.2d at 929. Nor does this case "distract[] or hind[er legislators] as the process of lawmaking unfolds[.]" Walker, supra, 733 F.2d at 929. For all these various reasons, the House Officers are not immune from suit under the Speech or Debate Clause. {PAGE 27}

E: THE PRESIDENT IS NOT IMMUNE FROM SUIT

Defendant Clinton proffers a series of assertions that the President is wholly immune from suit (CM at 6-11). Although the scope of immunity outlined in Defendant Clinton’s arguments is "breathtakingly broad," see Chamber of Commerce of U.S. v. Reich, 74 F.3d 1322, 1329 (D.C. Cir. 1996), the President is not "above the law." Clinton, supra, 117 S.Ct. at 1645-46; Butz v. Economou, 438 U.S. 478, 499-500, 506 (1978).

1: The Scope of Presidential Immunity

Generally, the President is "absolutely immune" from private civil suits for damages. Nixon v. Fitzgerald, 457 U.S. 731, 748-49 & n.27 (1982). But sovereign immunity does not mean the President is absolutely immune from all judicial review.

Kelly v. United States, 69 F.3d 1503, 1507 (10th Cir. 1995), cert. denied sub nom Kelly v. D.O.J., 517 U.S. 1166 (1996) (other citations and parallel citations omitted). {FOOTNOTE 12: Presidential immunity is said to descend from the doctrine of sovereign immunity, which bars suits against the "sovereign," absent consent, Block v. North Dakota, 461 U.S. 273, 280 (1983), or from the doctrine of separation of powers, which insulates each Branch from encroachments by the other, United States v. Nixon, 418 U.S. 683, 708 (1974). Kelly analyzes the immunity as descended from sovereign immunity.} The D.C. Circuit has referred to this as the "Larson-Dugan exception." Swan v. Clinton, 100 F.3d 973, 981 (D.C. Cir. 1996). This exception is a restatement of the ultra vires doctrine, to the effect that federal {PAGE 28} officers who act beyond the scope of their authority or in derogation of established constitutional principles are properly subject to suit. Navy, Marshall & Gordon v. U.S. Intern. Dev.-Coop. Agency, 557 F.Supp. 484, 489 (D.D.C. 1983). Thus, the Supreme Court "ha[s] long held that when the President takes official action, the Court has the authority to determine whether he has acted within the law." Clinton, supra, 117 S.Ct. at 1649-50; Nixon, supra, 457 U.S. at 753-54.

United States v. Lee, 106 U.S. 196, 220 (1882).

A claim to Presidential immunity derived from the doctrine of sovereign immunity was examined in Chamber of Commerce of U.S. v. Reich, 74 F.3d 1322 (D.C. Cir. 1996), which involved a challenge to the President’s statutory authority to issue a certain Executive Order. The case arose in part under the Administrative Procedure Act, which waives sovereign immunity for suits under the Act, see 5 U.S.C. § 702, so sovereign immunity against the federal officials inferior to the President was not at issue. 74 F.3d at 1328. Although the Court was presented with "a breathtakingly broad claim of non-reviewability of presidential actions," id. at 1329, the Court found that the government had conceded sovereign immunity was waived if the President issued an Executive Order which "violated or caused others to violate an express prohibition" of the Administrative Procedure Act or another statute. Id. at 1330. Clearly, if the President is not entitled to immunity from judicial restraint from flaunting a statute, the President is certainly not entitled to immunity when exceeding or transgressing the Constitution. {PAGE 29}

Reich, supra, 74 F.3d at 1332; accord Clinton, supra, 117 S.Ct. at 1649-50.

2: Application of the Defendant’s Arguments to the Facts of this Case

The Defendant asserts that the Supreme Court has "held that ‘"this Court has no jurisdiction of a bill to enjoin the President in the performance of his official duties."’" (CM at 6-7, citing Franklin, supra, 505 U.S. at 802-03 (quoting Mississippi v. Johnson, 71 U.S. (4 Wall.) 475, 498-99 (1867))). Defendant Clinton’s quotation of Franklin is accurate (though the passage quoted was not a "holding"), but Franklin is not dispositive of the instant case. Franklin addressed injunctions requiring certain action and the instant case concerns injunctions prohibiting actions. This difference renders Franklin inapposite to this case.

Franklin was brought by the Commonwealth of Massachusetts and others aggrieved by the apportionment of seats in the House of Representatives following the 1990 census. They sued for declaratory and injunctive relief, asking the court to direct the defendants, including the President, to reallocate the seats. Thus, the injunction at issue in Franklin was an injunction ordering the President to take action, to "submit to [the Clerk of the House] a statement showing the number of Representatives to which each state would be entitled" in accord with the theory and claims of the plaintiffs in the case. Commonwealth. of Mass. v. Mosbacher, 785 F.Supp. 230, 268 (D. Mass.), rev’d sub nom Franklin v. Massachusetts. {FOOTNOTE 13: Likewise, Franklin’s discussion of injunctions preceding the passage quoted by Defendant Clinton is concerned solely with mandatory injunctions. Ultimately, the Supreme Court didn’t rule on the question whether the President was properly immune from suit under the facts of the case. See 505 U.S. at 803. Instead, the Court found that the plaintiffs’ concerns could be addressed adequately by injunctive relief against other federal officials.} {PAGE 30}

Such an injunction is formally referred to as a "mandatory injunction," because it mandates or requires some positive act or some overt change in conditions. See Blacks Law Dictionary, 705 (5th ed. 1979); Ballentine’s Law Dictionary, 771 (3d ed. 1969). A mandatory injunction is completely different from a "preventive" or "prohibitory injunction," which directs the subject to not take action, to stop acting, or to refrain from acting. See Blacks Law Dictionary, 705 (5th ed. 1979); Ballentine’s Law Dictionary, 986 (3d ed. 1969).

The injunctions at issue in the instant case are preventive or prohibitory injunctions. The Plaintiffs seek orders that the various Defendants cease doing something. {FOOTNOTE 14: In the case of the Defendant "Control Board," the prohibition would go to everything they do, which would mean as a practical matter that the individual members of the Authority would have to take overt action to pack of their belongings and leave, ceasing to rule the District.} Franklin does not stand for the proposition that prohibitory injunctions are beyond the power of the federal courts.

Rather, since this case concerns allegations that the Defendant’s present actions violate the constitutional rights of the Plaintiffs, this case comports with the separation of powers doctrine and the sovereign immunity doctrine, so it does not run afoul of Franklin. Insofar as the Defendant’s actions violate the Constitution, they are "beyond the [President’s] power and [are], therefore, not the conduct of the sovereign." Larson, supra, 337 U.S. at 690. Thus, the President is properly subject to suit, Navy, supra, 557 F.Supp. at 489, because "when the President takes official action, the Court has the authority to determine whether he has acted within the law." Clinton, supra, 117 S.Ct. at 1649-50; Nixon, supra, 457 U.S. at 753-54. If the Defendant violates the Plaintiffs rights under the Constitution, he may be restrained, for his job under the Constitution is not to violate the Constitution.

{PAGE 31}

The question of Presidential immunity came before the D.C. Circuit in Swan v. Clinton, 100 F.2d 973 (D.C. Cir. 1996). In Swan, an individual had been removed from a federal position by the President. Mr. Swan sued the President and others seeking declarations that his removal was unlawful and he sought an order that he be reinstated. Thus, Swan involved affirmative orders or mandatory injunctions not unlike those at issue in Franklin. 100 F.3d at 975-76. While the Circuit Court acknowledged courts should be "hesitant" to grant mandatory injunctive relief against the President, the Court also stated there are serious considerations favoring review of Presidential actions, such as "the bedrock principle that our system of government is founded on the rule of law, and it is sometimes a necessary function of the judiciary to determine if the executive branch is abiding by the terms of legislative enactments[,]" 100 F.3d at 978, or, presumably, abiding by the Constitution. See Lee, supra, 106 U.S. at 220; accord Reich, supra, 74 F.3d at 1332; Kelly, supra, 69 F.3d at 1507.

In the long run, the Court of Appeals held that adequate relief for Mr. Swan could follow from injunctions running to subordinate officials rather than to the President, mandating that they take the actions Mr. Swan desired. 100 F.3d at 980-81. But the Court of Appeals also opined that there might be "rare instances" where a plaintiff’s only recourse was injunctive relief against the President. 100 F.3d at 979. In the instant case, the President has the dispositive role in allocating to each State a particular number of Representatives. Franklin, supra, 505 U.S. at 796. Likewise, for instance, the President appoints the five members of the District of Columbia Financial Responsibility and Management Assistance Authority and designates the Chair of the Authority. Pub. L. No. 104-8, § 101(b)(1)-(3), 109 Stat. 97, 101 (1995). Thus, this case presents one of those "rare instances," Swan, supra, 100 F.3d at 979, where prohibitive injunctive relief against the President is merited and required. See Butz, supra, 438 U.S. at 504-05 (quoting {PAGE 32} Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 410 (1971) (concerning damages as opposed to injunctive or declaratory relief)).

The original source of Defendant Clinton’s assertion, of course, is Mississippi v. Johnson, which said that "this Court has no jurisdiction of a bill to enjoin the President in the performance of his official duties." {FOOTNOTE 15: The issue presented in Mississippi was whether the President could be "restrained by injunction from carrying into effect an act of Congress alleged to be unconstitutional," 71 U.S. at 497, but the issue decided was whether the Court could issue mandamus against the President. 71 U.S. at 498-99. Mandamus, of course, is not among the remedies sought in the instant case. But it’s not settled that the President is immune from mandamus. For instance, the President might not be immune from a mandate that a wrongly terminated employee be reinstated. See Vitarelli v. Seaton, 359 U.S. 535 (1959). In such a case, a mandate might be proper to correct a violation of the law. By the same lights, in a case complaining of a violation of the Constitution and the remedy is to stop such action, there should be no immunity from a prohibitive injunction.} 71 U.S. (4 Wall.) 475, 498-99 (1867)). In Mississippi, the Supreme Court concluded that President Jackson was immune because the actions at issue there were "purely executive and political." 71 U.S. at 499. The State of Mississippi had seceded from the United States, reconfigured its previous State Constitution, and ratified a Constitution of the Confederate States of America. See, William C. Davis, "A Government of Out Own;" The Making of the Confederacy, 3-30, 256-57 (1994); George C. Rable, The Confederate Republic; A Revolution Against Politics, 39-43, 149-50 (1994). The effort to bring the seceded State back into the Union, shorn of the anti-democratic, racist aspects of its political existence during secession, was overwhelmingly political. See Eric Foner, Reconstruction; America’s Unfinished Revolution, 1863-1877, 181-216 (1988) (on the efforts of President Johnson to "reconstruct" the South). The same political factions which had engineered secession of their states from the Union, after the war, "did not hesitate to invoke the powers of the courts for the protection as citizens in order to cripple the exercise of the authority necessary to put down that rebellion, yet {PAGE 33} no improper interference with the exercise of that authority was permitted or attempted by the courts." Lee, supra, 106 U.S. at 262 (citing Mississippi v. Johnson, among other cases, as an example of this secessionist strategy). Thus, President Jackson was involved in a unique, delicate, and demanding political struggle, contending against factions who appealed to the federal courts for protection from the President’s efforts to bring the seceded states back into the Union at the same time as they denied the legitimacy of federal jurisdiction over them.

All this stands in stark contrast to the actions at issue in the instant case. The Plaintiffs here, unlike those in Mississippi, do not seek a special status, different than that enjoyed by the entire remainder of the country (a right to be apart from, yet protected by, the courts whose jurisdiction they denied). In Mississippi, the President’s actions were to bring the divergent secessionists back into the Union; in the instant case, the President’s actions are to fence the citizens of the District of Columbia out of the political life of the Union. In Mississippi, the Court properly respected the President’s authority to make political judgments concerning the entire country; here the President improperly claims authority to treat the citizens of the District of Columbia perpetually differently than the citizens of the remainder of the country are treated.

The President’s actions at issue here cannot be relegated by mere semantics, see Nixon, supra, 506 U.S. at 252-54 (Souter, J., concurring), to the realm of pure "executive and political" decision-making. If the Defendant’s actions violate the Plaintiffs’ constitutional rights, they may be restrained. It is untenable to assert that the Constitution protects the President in violating the Constitution. Larson, supra, 337 U.S. at 689-90; Kelly, supra, 69 F.3d at 1507; Navy, supra, 557 F.Supp. at 489. "No penance would ever expiate the sin against free government of holding that a President can escape control of executive powers by law[.]" Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579, 646 (1952); accord Lee, supra, 106 U.S. at 220. "[W]hen the President {PAGE 34} takes official action, the Court has the authority to determine whether he has acted within the law." Clinton, supra, 117 S.Ct. at 1649-50; Nixon, supra, 457 U.S. at 753-54.

Also, the actions at issue in this case are largely ministerial tasks, such as executing a mathematical calculation which results in the exact numerical apportionment of representation in the House of representatives. Thus, the Plaintiffs’ relief doesn’t intrude on the realm of "political" discretion which might properly be accorded more respect than otherwise would be the case, because exercised in such a way as to treat all citizens as equals under the law. {FOOTNOTE 16: Note also that Franklin doesn’t necessarily bar all mandatory injunctions. The Court notes that "the question whether the President might be subject to a judicial injunction requiring the performance of a purely ‘ministerial’ duty" has been "left open." 505 U.S. at 802.}

Defendant Clinton presents a few additional assertions which merit rebuttal. The Defendant asserts that "plaintiffs ask . . . the Court to (i) prohibit the President from enforcing any existing law . . . that was duly enacted by Congress pursuant to its express authority under Article I, § 8, cl. 17, of the Constitution, and (ii) require that he veto or decline to enforce any such law that might be enacted by Congress in the future . . ." (CM at 8-9) and the Defendant asserts that the Plaintiffs "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" (CM at 9). These assertions are misleading, because laws which are unconstitutional, facially or as applied, whether "duly enacted" under purported "express authority" or not, are nullities, Marbury, supra, 5 U.S. at 180, and cannot be legitimately enforced. Reich, supra, 74 F.3d at 1332; Kelly, supra, 69 F.3d at 1507; Swan, supra, 100 F.3d at 981. Article II, § 3 of the Constitution simply does not require the President to violate rights nor to enforce laws which are unconstitutional or void.

{PAGE 35}

The Defendant’s citation of Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524 (1838), in connection with the Defendant’s art. II, § 3 assertion (CM at 9), is puzzling. While the passage quoted has a nice ring, it has no bearing whatsoever on the merits of the instant case. Kendall arose from claims by private contractors for payments of money under the authority of a statute which the Postmaster of the United States had refused to enforce. The claimants thus depended on the validity of the statute for their relief, against the Postmaster’s refusal to honor the statute. The constitutionality of the law was not at issue in Kendall. Therefore, Kendall would be to the effect that the President’s power to enforce valid, constitutional laws cannot be taken to include a power to forbid the enforcement of valid, constitutional laws. 37 U.S. at 613.

The Defendant also finds if "notable" that the Plaintiffs do not challenge the "constitutional validity" of the laws at issue in this lawsuit" (CM at 9). But quite to the contrary, the Plaintiffs do challenge the "constitutional validity" of many laws, both facially or as applied, in that these various laws have the direct effect of infringing their fundamental rights.

For instance, the "Control Board" is before the Court as a Defendant in the case. The Control Board was imposed by Act of Congress. Pub. L. No. 104-8, 109 Stat. 97 (1995). Imposition of the Control Board trenches on the Plaintiffs’ fundamental constitutional rights (Complaint at ¶¶ 27-29, 70-71, 91, 93). There is no warrant for doubting that a statute or law which trenches on fundamental constitutional rights is repugnant to the constitution and "a law repugnant to the constitution is void[.]" Marbury, supra, 5 U.S. at 180.

Neither is it correct that the "validity" of 2 U.S.C. § 2a(a) "is not at issue in this case." While the Plaintiffs do not 2 U.S.C. § 2a on its face, this is not the end of the matter. The Plaintiffs do challenge 2 U.S.C. § 2a as applied, both by Defendant Clinton and by the Defendants House Officers. Such a challenge has long been recognized as reasonable. {PAGE 36}

Scott v. Jones, 46 U.S. (5 How.) 343, 380 (1847) (McLean, J., dissenting, although this observation does not contradict the majority); see also Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886). Thus, the Plaintiffs’ claims arising from exclusion of the citizens of the District of Columbia from apportionments, as enforced or enacted under 2 U.S.C. § 2a, are justiciable.

Thus, the Defendant’s citation of Department of Commerce v. Montana, 503 U.S. 442 (1992) for the proposition 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)" (CM at 10) is unavailing. While the statement of Montana is accurate, the Plaintiffs do challenge the statute as applied. The problem, again, is not with the facial terms of 2 U.S.C. § 2a, but with the exclusion of the District of Columbia from all calculations and actions taken under 2 U.S.C. § 2a; in other words, the problem is with the statute as applied. Yick Wo, supra, 118 U.S. at 373-74.

Finally, the Defendant cites Turner Broadcasting System, Inc. v. F.C.C., 507 U.S. 1301, 1302 (Rehnquist, Circuit Justice 1993), for the proposition that "all Acts of Congress [are] presumptively constitutional" (CM at 10), but this is a truism. Nothing in Turner supports Defendant Clinton’s suggestion that courts are barred by this "presumption," jurisdictionally, from reviewing statutes or acts of federal agents for constitutionality. {FOOTNOTE 17: The opinion from which this quotation is extracted, moreover, was concerned solely with Turner’s demand for an injunction pending decision on its petition for certiorari to the Supreme Court, after a three-judge district court had ruled in favor of the F.C.C. (on appeal, by the way, the district court’s judgment was vacated and the case remanded, see Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622 (1994)), thus, the proposition did not settle the merits of a constitutional challenge, concerned the merits of a demand for an injunction pending appeal (after the merits of the constitutional challenge have been addressed in detail by a lower court and decided against the seeker of the injunction).} See Kramer v. Union {PAGE 37} Free School District, 395 U.S. 621, 627-28 (1969) ("[W]hen we are reviewing statutes which deny some residents the right to vote, the general presumption of constitutionality afforded . . . statutes and the traditional approval given [governmental] classifications is the Court can conceive of a ‘rational basis’ for the distinctions made are not applicable."). {FOOTNOTE 18: The Defendant makes a confusing assertion with reference to Mountain State Legal Foundation v. Glickman, 92 F.3d 1228 (D.C. Cir. 1996) (CM at 7-8, n.3). To the extent the Plaintiffs follow the Defendant’s argument, it’s that the Court cannot award the straw man relief the Defendants construe for the case. Since the premise is straw, the argument is pointless.}

3: Conclusion: Defendant Clinton Is Not Immune From Suit

Thus, we end where we began: the President is not above the law. Clinton, supra, 117 S.Ct. at 1645-46; Butz, supra, 438 U.S. at 506; Youngstown, supra, 343 U.S. at 646; Swan, supra, 100 F.3d at 981; Reich, supra, 74 F.3d at 1332; Kelly, supra, 69 F.3d at 1507. For this and the other reasons given, Defendant Clinton is not immune from suit.

Clinton, supra, 117 S.Ct. at 1650 (quoting Nixon, supra, 457 U.S. at 753-54). The Court can certainly review the legality of the President’s conduct, which is at issue in this case.

CONCLUSION: THIS COURT HAS JURISDICTION

Generally, the burden to demonstrate that a court has jurisdiction is on the party invoking the jurisdiction of the court. United States v. Hays, 515 U.S. 737, 742-44 (1995) (discussing standing). Evaluation of this burden is not a test on the merits of the case. Albuquerque Indian Rights v. Lujan, 930 F.2d 49, 55 (D.C. Cir. 1991). "The issue is not whether a plaintiff will {PAGE 38} ultimately prevail but whether the claimant is entitled to offer evidence to support of the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). In evaluating the plaintiffs’ averments that a court has jurisdiction, the court "must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining part[ies.]" Warth v. Seldin, 422 U.S. 490, 501 (1975); Scheuer, supra, 416 U.S. 232.

Here, the Plaintiffs have presented a strong showing that this Court has jurisdiction, Hays, 515 U.S. at 742-44; Warth, 422 U.S. at 501; Scheuer, 416 U.S. at 236, and have rebutted all of the suggestions and assertions otherwise presented by the Defendants.

II: THE PLAINTIFFS STATE VIABLE CLAIMS

In arguing that the Plaintiffs have failed to state viable claims in this case, the Defendants make much of the powers Congress holds over the District of Columbia. Indeed, Congress has certain powers over the physical territory, but the citizens of the District of Columbia have rights. The Plaintiffs’ claims withstand the Defendants’ assertions because power does not trump rights.

O'Donoghue v. United States, 289 U.S. 516, 539 (1933) (quoting Stoutenburgh v. Hennick, 129 U.S. 141, 147 (1889); emphasis added).

In their haste to assert their contentions concerning the physical place called the District of Columbia, the Defendants’ arguments elide all considerations of the Plaintiffs’ rights. This is illegitimate; "people, not land or trees or pastures, vote." See Reynolds v. Sims, 377 U.S. 533, {PAGE 39} 579-80 (1954). Thus, in considering the Plaintiffs’ claims, the distinction must be kept clear between the powers of Congress over this place and the indefeasible rights of these Plaintiffs.

The Criteria for Dismissal Under 12(b)(6)

The standard for dismissal under Rule 12(b)(6) is "quite strict." In re Swine Flu Immunization Prod. Liability Lit., 880 F.2d 1439, 1442 (D.C. Cir. 1989). Dismissal under Rule 12(b)(6) is "not favored, and should be granted sparingly and with caution," Dann v. Studebaker-Packard Corp., 288 F.2d 201, 215-16 (6th Cir. 1961) (footnote with citations omitted); accord Tele-communications of Key West v. United States, 757 F.2d 1330, 1334-35 (D.C. Cir. 1985).

The burden under Rule 12(b)(6) is entirely on the party moving for dismissal to show, "beyond a doubt that the plaintiff can prove no set of facts in support of [the] claim which would entitle [the plaintiff] to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957) (citations omitted); see also Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); In re Swine Flu, supra, 880 F.2d at 1442. In reviewing this issue, "the factual allegations of the complaint must be taken as true, and any doubt must be resolved in favor of the pleader." Scheuer, supra, 416 U.S. at 236.

A: THE PLAINTIFFS STATE VIABLE EQUAL PROTECTION CLAIMS

Count One of the Complaint (¶¶ 1-87) brings various claims under the Equal Protection provisions of the Constitution. The Defendants House Offices assert that the Plaintiffs have failed to state a claim under this Count (HOMM at 14-18). Defendant Clinton also challenges the Plaintiffs’ Equal Protection claims, but hangs his challenge on an argument that the District of Columbia has a "very unique" [sic] status under the Constitution (CM at 12). This assumption is wrong under the facts and under the law and merely begs the questions presented in this case. {PAGE 40}

1: The Plaintiffs Are Beneficiaries of the Equal Protection Provisions

One of the most basic principles of law is that all citizens stand as equals before government. "[T]he fundamental principle of equality . . . permeates our entire Constitution [and] its denial imperils the very heart of our democracy." Celler, supra, 17 L.&C.P. at 274. Sometimes it is said, in the alternative, that all citizens are entitled to be treated equally by the government.

BMW of North America, Inc. v. Gore, 517 U.S. 559, 587 (1996) (Breyer, J., concurring; other citations omitted; emph. added), quoting Railway Express Agency, Inc. v. New York, 336 U.S. 106, 112 (1949) (Jackson, J., concurring). Under traditional constitutional analysis, it is said that all citizens are entitled to the "equal protection" of the laws. "[T]he equal protection of the laws . . . means that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in the same place and under like circumstances." State of Missouri v. Lewis, 101 U.S. 22, 31 (1879). "The principle of equal citizenship presumptively forbids the organized society to treat an individual either as a member of an inferior or dependent caste or as a nonparticipant." Kenneth L. Karst, Equal Protection of the Laws, in 2 Levy, Karst & Mahoney, eds., Encyclopedia of the American Constitution, 640, 642 (1986).

The Plaintiffs are entitled to equal treatment (to the equal protection of the laws) by the federal government under the Fifth Amendment, which provides (in pertinent part) that "[n]o person shall . . . be deprived of life, liberty, or property, without due process of law[,]" is a source of equal protection rights to the Plaintiffs. Shapiro v. Thompson, 394 U.S. 618, 641-42 (1969). "While the Fifth Amendment contains no equal protection clause, it does forbid discrimination {PAGE 41} that is ‘so unjustifiable as to be violative of due process.’" Schneider v. Rusk, 377 U.S. 163, 168 (1964), quoting Bolling v. Sharpe, 347 U.S. 497, 499 (1954); see also Buckley v. Valeo, 424 U.S. 1, 93 (1976) ("Equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment."). Thus, it is "plainly unconstitutional" for the federal government to discriminate against a discrete group in such a way as to burden their fundamental rights. Ex. Bd. of Eng., Arch. and Sur. v. Flores de Otero, 426 U.S. 572, 601 (1976).

Downes v. Bidwell, 182 U.S. 244, 260-61 (1901); accord Callan v. Wilson, 127 U.S. 540, 550 (1888). Thus, the citizens of the District are "under the aegis" of the Equal Protection provisions of the Constitution.

United State v. Cohen, 733 F.2d 128, 145, 150 (D.C. Cir. 1984) (en banc; Mikva, concurring).

2: The District of Columbia Is Not Unique Under the Constitution

At the very least, then, the citizens of the District of Columbia must be treated by the federal government in a manner substantially equivalent to the way the federal government treats all other citizens of the United States who are subject to the same grant of power which Congress exercises over the District of Columbia, unless there is a compelling governmental reason, {PAGE 42} narrowly tailored, to treat them differently. {FOOTNOTE 19: Although the instant argument focuses on discriminatory treatment of citizens of the District compared to citizens residing in other specified places, the Plaintiffs would contend, ultimately, that Congress is obliged to treat the citizens of the District of Columbia in a manner substantially similar to the manner in which it treats all other American citizens, regardless of residence or location. See Cohen, supra, 733 F.2d at 145, 150.} And indeed, other citizens are subject to the same power. The District of Columbia is not "unique," in short, at least in the one category of analysis with which the Court must be most concerned: the powers of Congress under the Constitution.

The District of Columbia today is much smaller than the original District of Columbia. The original District of Columbia covered an area of exactly one hundred square miles; approximately one third of this area was located south-west of the Potomac River (Complaint, ¶¶ 13-14); Van Ness v. Mayor of Washington, 29 U.S. (4 Pet.) 232, 277 (1830). In 1846, Congress ceded the portion of the original District of Columbia which lay south-west of the Potomac River back to the State of Virginia (Complaint, ¶ 19). Act of July 9, 1846, 9 Stat. 35, ch. 35, reprinted in 1 D.C. Code 78-79 (1991 repl.). Thus, the District of Columbia of which we speak today (in which the Twenty Plaintiffs reside) is not constitutionally "unique." As a subject of the exercise of Congressional power, which is at issue in the instant case, the present District of Columbia may be compared to the former portion of the District of Columbia south-west of the Potomac River.

This former portion of the District of Columbia is by no means the District’s only sibling under the Constitution. Congress rules the District of Columbia under powers purported to arise from Article I, Section 8, Paragraph {FOOTNOTE 20: Plaintiffs properly refer to "Paragraph 17" because the Paragraph includes two distinct Clauses and it is imperative to be able to distinguish and compare these two Clauses.} 17 of the Constitution, which provides that:

The first half of this Paragraph is commonly referred to as the "District Clause." The latter half of this Paragraph is most frequently referred to as the "Enclaves Clause," because the areas obtained under the Clause are most commonly referred to as federal "enclaves." See, e.g., West River Elec. v. Black Hills Power & Light Co., 918 F.2d 713, 718 (8th Cir. 1990); Jurisdiction Over Federal Areas Within the States; Report of the Interdepartmental Committee for the Study of Jurisdiction over Federal Areas Within the States; Part I: The Facts and Committee Recommendation (1956) (hereafter "1 JOFAWS") at 2.

Under the Enclaves Clause, Congress has exercised powers of "exclusive legislation" over several thousand areas scattered throughout the United States. These enclaves include not only "forts, magazines, dockyards, and other needful buildings," but also military reservations, national forests and parks, medical research facilities, military academies, prisons with residential areas, and any other installations "found to be necessary in the performance of the functions of the federal government." James v. Dravo Contracting Co., 302 U.S. 134, 143 (1937). By the mid-twentieth century, hundreds of thousands American citizens resided within these enclaves. 1 JOFAWS at 2 & 81-126; and Ibid.; Part II: A Text of the Law of Legislative Jurisdiction (1957) (hereafter "2 JOFAWS") at 3-4; {FOOTNOTE 21: These reports were prepared by a committee chaired by the Assistant Attorney General and comprised of the General Counsels or Deputy General Counsels from all Executive Branch agencies responsible for administering the enclaves (including, for instance, the Defense Department and all branches of the military). The reports appear to be the most comprehensive studies ever undertaken of federal enclaves. See 1 JOFAWS at 5; 2 JOFAWS at iv.} Carl Strauss, Federal Enclaves - Through the Looking Glass - Darkly, 15 Syracuse L. Rev. 754 (1964)). Today, well over three million people may reside within those federal enclaves which are military bases alone. See Michael J. Malinowski, Federal {PAGE 44} Enclaves and Local Law: Carving Out a Domestic Violence Exception to Exclusive Legislative Jurisdiction, 100 Yale L. Rev. 189, n.1 (1990).

As stated clearly in Art. I, § 8, ¶ 17, the power Congress may wield over federal enclaves is precisely the same as the power it does wield over the District of Columbia. Paul v. United States, 371 U.S. 245, 263 (1963); Winston v. United States, 172 U.S. 303, 310 (1899); Fort Leavenworth R. Co. v. Lowe, 114 U.S. 525, 532-33 (1885); Ex parte Siebold, 100 U.S. 371, 395 (1879). Thus, by the plain terms the Constitution, the District of Columbia is not "unique." As a subject of the exercise of Congressional power, which is at issue in the instant case, the present District of Columbia may be compared to the federal enclaves. {FOOTNOTE 22: The term "federal enclave" is sometimes used in the District to refer to the "National Capital Service Area," see, e.g., Charles Wesley Harris, Congress and the Governance of the Nation’s Capital; the Conflict of Federal and Local Interests, 15 (1995), an area Congress defined when it created the "home rule" government in 1973. 40 U.S.C. § 136; D.C. Code § 9-142. This area encompasses the White House, Capitol Building, Supreme Court, and most of the federal office buildings. This usage is not pertinent to the Plaintiffs’ instant arguments.} Congress wields over the District of Columbia the same kind and degree of power as it may wield over thousands of places spread throughout the United States, where millions of American citizens live.

Like the Present District of Columbia, the former portion of the District of Columbia south-west of the Potomac River was neither a state nor "considered" a state (see CM) from the time it was ceded to the federal government until it was reabsorbed into Virginia in 1846. See Reily v. Lamar, 6 U.S. (2 Cranch) 344, 356-57 (1804). Just like the District of Columbia, the federal enclaves certainly were not states and were even determined to be "extraterritorial" to (not part of) the states from at least the time of Reily until the middle of this century. {FOOTNOTE 23: See also Royer v. Board of Election Supervisors, 231 Md. 561, 191 A.2d 446, 449, cert. denied, 375 U.S. 921 (1963) (residents of enclaves are not state residents for voting purposes); Arledge v. Mabry, 52 N.M. 303, 197 P.2d 884 (1948); Herken v. Glynn, 151 Kan. 855, 101 P.2d 946 (1940); Lowe v. Lowe, 150 Md. 592, 133 A. 729 (1926); State ex rel. Lyle v. Willett, 117 Tenn. 334, 97 S.W. 299 (1906); McMahon v. Polk, 10 S.D. 296, 73 N.W. 77 (1897); In re Town of Highlands, Sup., 48 N.Y.St.Rpt. 795, 22 N.Y.Supp. 137 (Sup. Ct. 1892); Sinks v. Reese, 19 Ohio St. 306 (1869); Opinion of Justices, 1 Metc. 580, 42 Mass. 580 (1841); Commonwealth v. Clary, 8 Mass. 72 (1811); 1 JOFAWS 19-20, 54-55; 2 JOFAWS 242-43.} Howard v. {PAGE 45} Comm’rs of Sinking Fund, 344 U.S. 624, 626-27 (1953); Economic Dev. and Indus. Corp. v. U.S., 546 F.Supp. 1204, 1209 & n.12 (D. Mass. 1982) ("The Howard and Evans decisions effectively repudiated the traditional notion of extraterritoriality of federal enclaves[.]"). Thus, if constitutional rights are somehow appurtenant to place of residence, as Defendant Clinton infers, then the citizens of the District hold the same rights and privileges as are held by over a half-million of their fellow citizens who live in the former portion of the District of Columbia lying south-west of the Potomac River and the citizens of the District of Columbia hold the same rights and privileges as millions of their fellow citizens who live within the federal enclaves.

In short, Defendant Clinton’s proposition that the District of Columbia is "unique" (CM at 12-18) is wrong. {FOOTNOTE 24: Three cases cited by the Defendant wave a red flag that the District isn’t "unique." The Defendant quotes a passage from Corporation of New Orleans v. Winter, 14 U.S. (1 Wheat.) 91, 94 (1816) (CM at 15), which links the District and territories. The Defendant also cites Barney v. Baltimore, 73 U.S. (6 Wall.) 280, 287 (1868) and Scott, supra, 46 U.S. at 377 (CM at 16, n.8), which both state the District and territories share a common status under the Constitution. The Plaintiffs will compare treatment of the citizens of the District with treatment of the citizens of the territories in the future, since the instant memorandum is already rather long.} Nothing Defendant Clinton or the House Officers say in their memoranda countervails these observations. Nothing the Defendants say in their memoranda, in the end, supports the proposition that the District of Columbia is constitutionally "unique." {FOOTNOTE 25: It might be noted as well that nothing the Defendants say supports the inference that the District of Columbia (or at least all of the District where people live (for convenience, this can be referred to for now as all of the District outside the National Capital Service Area (see note , supra)) could not attain any other status than the status it presently has. The choice among the alternatives, however, is a political matter, so that choice is not before this Court.} Since the District is not "unique," it is not only possible but imperative to proceed to the question of the {PAGE 46} impact of the differential treatment of the District, as compared to the other places which have ever been subject to identical powers as the District.

3: The Discriminatory Treatment at Issue in this Case

Congress has treated the former portion of the District of Columbia south-west of the Potomac River and the federal enclaves quite differently from the way it has treated the remaining District of Columbia. Congress ceded that portion of the original District of Columbia south-west of the Potomac River to the State of Virginia, such that it became a part of the State of Virginia (Complaint, ¶¶ 56-57). Act of July 9, 1846, 9 Stat. 35, ch. 35, reprinted in 1 D.C. Code 78-79 (1991 repl.) (An Act to Retrocede the County of Alexandria, in the District of Columbia, to the State of Virginia). Congress also took affirmative steps to divest itself of exclusive jurisdiction over the federal enclaves, such that they could be integrated into the various States (Complaint, ¶ 46). Cornman v. Dawson, 295 F.Supp. 654, 657 (D. Md. 1969), aff’d sub nom Evans v. Cornman, 398 U.S. 419 (1970) (partial list of statutes). All these places are now wholly incorporated parts of States. None of these places obtained their present status by being "considered as States" or "treated as States" while remaining a part of the District of Columbia or while remaining extraterritorial federal enclaves. Of course, the citizens of the subject areas other than the District of Columbia are included in apportionment of representation in Congress (Complaint, ¶¶ 48, 58, 75-76, 79, 82, 86) and they are apportioned representation in State governments (Complaint, ¶¶ 49, 58). Evans v. Cornman, 398 U.S. 419 (1970).

And the most important thing to note about Congressional power over the enclaves and the way it has been exercised is that Congress could reverse these affirmative steps which allowed the states to assume jurisdiction over the enclaves. "[F]ederal enclaves are still subject to exclusive jurisdiction and Congress could restrict as well as extend the powers of the States within their {PAGE 47} bounds[.]" Evans, supra, 398 U.S. at 423-24. In other words, Congress could reassume completely or largely "exclusive" jurisdiction, sufficient to return the enclaves to their former status as extraterritorial colonies. This point is important in regard to the Plaintiffs’ Equal Protection claims because there’s more than one way to stand as equals before the law.

Heckler v. Mathews, 465 U.S. 728, 740 & 740 n.8 (1984) (quoting Iowa-Des Moines National Bank v. Bennett, 284 U.S. 239, 247 (1931) (per Brandeis, J.); other citations omitted). {FOOTNOTE 26: Although the Plaintiffs’ Guarantee Clause claims (see infra at 57-74) militate strongly against divestiture of anyone’s citizenship, political, or voting rights at issue in this case, the fact is, the differential treatment of the enclaves as compared to the District of Columbia is remediable.}

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 (Complaint, ¶¶ 52-55; 59, 70-72). See Shook v. D.C. Fin. Responsibility and Management Assistance Auth., 132 F.3d 775, 784 (D.C. Cir. 1998) ("Congress wanted the Control Board itself to exercise the powers of governance over the District."); Stephen R. Cook, Tough Love in the District: Management Reform Under the District of Columbia Financial Responsibility and Management Assistance Act, 47 Am. U.L. Rev. 993, 1028 (1998) (the Control Board is "a fully-empowered, unelected city government; the City’s elected officials now serve in largely advisory capacities."). {PAGE 48} Congress has fenced the citizens of the District of Columbia out of apportionment of representation in Congress (Complaint, ¶¶ 30, 53, 55, 68, 777, 80, 83, 86) and Congress has denied local self-government which is republican in form to the District (Complaint, ¶¶ 18, 21-30, 63-64, 70). See Shook, supra, 132 F.3d at 780 ("The [home rule] Charter . . . is simply an Act of Congress which can be modified either expressly or impliedly by Congress as it wishes."). Of course, 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 (Complaint, ¶¶ 60-64, 66-68).

4: The Cost of the Discriminatory Treatment

The discriminatory treatment of these Twenty Plaintiffs has costs them their fundamental rights. For simplicity in the instant discussion, we may generalize with reference to the Plaintiffs’ right to vote or participate in government. The right to vote, of course, is a fundamental right. Yick Wo, supra, 118 U.S. at 370; Wesberry, supra, 376 U.S. at 7. Governments may not "den[y a group’s] access to the political process equal to the access of other groups," Chapman, supra, 420 U.S. at 17; White v. Regester, 412 U.S. 755, 765-66 (1973), nor "minimize[] or cancel[] out" the voting strength of a discrete population, Fortson v. Dorsey, 379 U.S. 433, 439 (1965), nor (systematically and perpetually) fence a minority out of the franchise, Carrington, supra, 380 U.S. at 94. In short, it’s settled that "laws ‘distributing the franchise’-- i.e., granting ‘the right to vote to some bone fide residents of requisite age and citizenship’ but denying it to others -- are presumptively invalid." Jesse H. Choper, Consequence of Supreme Court Decisions Upholding Individual Rights, 83 Mich. L. Rev. 1, 85-86 (1984) (emphasis added; quoting Kramer, supra, 395 U.S. at 626 & 627). When governments provide that citizens may elect representatives to the government, each citizen "has a constitutionally protected right to participate in elections on an {PAGE 49} equal basis with other citizens in the jurisdiction." Dunn v. Blumstein, 405 U.S. 330, 336 (1972); Kramer, supra, 395 U.S. at 626-29; Gray v. Sanders, 372 U.S. 368, 379-80 (1963). Government cannot "deprive [a] minority of the ballot altogether," without violating the citizens’ rights to the equal protection of the laws. Avery, supra, 390 U.S. at 481 n.6.

Thus, the Plaintiffs in this case are in a position comparable to that of the plaintiffs in Baker v. Carr. In Baker, certain voters in Tennessee alleged they had no "practical opportunities for exerting their political weight at the polls." 369 U.S. at 258-59 (Clark, J., concurring). In contrast, the citizens of the District of Columbia have no opportunities -- practical or otherwise -- for exerting their political weight in Congress when Congress rules the District. {FOOTNOTE 27: The District’s elected Delegate has only limited power and Congress divested her of what little power she had. See 141 Cong. Rec. H39-40 (daily ed. Jan. 4, 1995); Vernon Loeb, House Strips D.C. Delegate of Symbolic Floor Vote, Washington Post, January 5, 1995, at B1.} Nor do the citizens of the District have an opportunity to control local matters to the same degree as was enjoyed by the plaintiffs in Baker, who could expect that no representative elected by citizens of North Carolina (for instance) would have control over matters of Tennessee state law. {FOOTNOTE 28: See David A. Vise, Vouchers Out of D.C. Budget Bill, Washington Post, Oct. 8, 1998, at B8 (quoting Rep. James P. Moran Jr (of Virginia), complaining that the D.C. budgetary process "is two guys from North Carolina sitting down and working things out to please them[.]").} Since the plaintiffs in Baker v. Carr presented viable claims, id. at 197-98, the claims here are viable.

Reynolds v Sims, 377 U.S. 533 (1964), is also instructive. In Reynolds, plaintiffs challenged apportionments in Alabama, saying they diluted the weight of the plaintiffs’ population group. In ruling in favor of the plaintiffs, the Supreme Court noted that "the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise." Id. at 555 (emphasis added). If the plaintiffs in Reynolds had a valid claim for dilution of their vote, the citizens of the District have a valid claim {PAGE 50} for wholesale prohibition of their participation in Congress. See also Davis v. Bandemer, 478 U.S. 109, 133 (1986); Rosario v. Rockefeller, 410 U.S. 752, 756-57 (1973) (list of cases recognizing cause of action for "total denial" of vote); Avery, supra, 390 U.S. at 481 n.6.

In other words, the record shows that the citizens who reside in the former portion of the District of Columbia and in the federal enclaves enjoy a full panoply of political rights; they are included in apportionments of representation in Congress and they enjoy the benefits of republican forms of government and they are free of Congressionally imposed "Control Boards." Why them and not the Plaintiffs? This question is "begged" by Defendant Clinton’s assertion that the District of Columbia is "unique."

5: The Defendants’ Arguments Against the Plaintiffs’ Case

Defendant Clinton advances a series of assertions purporting to support the proposition that "the 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" (CM at 12-19) (for the purposes of this case, these provisions are Article I, § 2, of the Constitution, as amended by the Fourteenth Amendment, see CM at 14). {FOOTNOTE 29: Defendant Clinton conducts the argument that the District of Columbia is "unique" with phrases indicating the Defendant either misunderstands or misconstrues the claims at issue in this case. For instance, the Defendant says the District "is not considered to be a ‘State’" and refers to "the suggestion that the District can be considered a State" (CM at 13 & 17; emphasis added). The Plaintiffs understand the Defendant to imply the Plaintiffs simply want to call the District a State or treat it as a State, even though it’s not a State. In fact, the Plaintiffs do not seek treatment or consideration of the District of Columbia as a State. Rather, the Plaintiffs protest against being treated any differently than any citizens of the United States are treated (see, e.g., Complaint, ¶¶ 60-61, 65-68). The Plaintiffs do not want the "benefits" of a borrowed status, for benefits on loan can always be withdrawn. They want the benefits of a status to which they are entitled under the Constitution and which Congress has respected for others.} The Plaintiffs state this point as an element of their case in the Complaint (Complaint, ¶ 35). The Plaintiffs also agree {PAGE 51} (at least for the purposes of the instant argument) that only citizens of "States" are properly apportioned representation in Congress under the Constitution. But, so what? The District’s status and the (presumed) legal principle defining representation in Congress do not support the proposition that there are no rights to representation. The Defendant’s conclusory proposition merely begs the question why the citizens living under the present status are denied representation.

The House Offices launch their challenge to the Plaintiffs’ Equal Protection claims with the assertion that "the function of the equal protection guarantee is to permit court to measure the validity of classifications actually drawn by legislatures" and that they "are aware of no precedent" otherwise (HOMM at 15). These Defendants made this same assertion previously and the Plaintiffs replied to it then, see Plaintiffs’ Reply to Responses of All Defendants (filed Aug. 14, 1998) at 23-24, pointing out that Gomillion v. Lightfoot, 364 U.S. 339 (1960), supports the Plaintiffs’ application of the Equal Protection principles of the Constitution.

The House Officers also cite Railway Express Agency, Inc.[R.E.A.] v. People of State of New York, 336 U.S. 106 (1949), for the proposition that "[i]t is no requirement of equal protection that all evils of the same genus be eradicated or none at all." (HOMM at 15 n.13). This specific statement, when read in context, is irrelevant to the instant case, and R.E.A. actually supports the Plaintiffs’ claims. R.E.A. arose from a challenge to a municipal traffic regulation which made it illegal to operate an "advertising vehicle" in New York City because such "advertising vehicles" were deemed dangerous and deemed to congest traffic. The language the House Officer quote was in response to one of the Agency’s argument, as to which the Court said,

{PAGE 52} Id., 336 U.S. at 110. In other words, the statement stands for the unremarkable proposition that there is no inherent violation of equal protection when a municipal legislature seeks to eradicate one threat to a governmental interest and ignores another threat, or when that legislature declines to eradicate any threat at all.

In the instant case, the Plaintiffs do not complain that Congress has "eradicated" one "evil" but left another in place. They complain that the federal government has selectively "eradicated" a series of "evils" elsewhere and perpetuated the same series of "evils" for the citizens of the District of Columbia. At least since Yick Wo v. Hopkins, 118 U.S. 356 (1886), such discrimination has been deemed a violation of Equal Protection.

Next, the House Officers assert that, "even if" the Plaintiffs’ have an equal protection claim, it should only be subjected to "the lowest level of equal protection scrutiny" because the "class of District of Columbia residents is not a ‘suspect class.’" (HOMM at 15). This argument ignores well over a century of basic constitutional law. It is well-settled and universally acknowledged that denials of fundamental rights will be subjected to the highest level of scrutiny, such that a government must show a compelling governmental interest to overcome the challenge. See, e.g., Kramer, supra, 395 U.S. at 627-30; Lawrence H. Tribe, American Constitutional Law, §§ 16-6, 16-7 (2d ed. 1988). In short, "strict scrutiny" review is not limited only to discrimination against "suspect classes;" it is accorded as well to discrimination against any discrete group when the discrimination burdens or denies their fundamental rights.

The Defendants’ citation of United States v. Cohen, 733 F.2d 128 (D.C. Cir. 1984), in support of the assertion that the Plaintiffs are only entitled to "rational basis" review is misplaced. Placing the passage the Defendants cite back into its proper context, Cohen actually supports the Plaintiffs’ assertion that they are entitled to "strict scrutiny" review. Cohen states quite clearly {PAGE 53} that strict scrutiny of equal protection claims "is applied to legislation that discriminates against a ‘suspect class,’ . . . or that impinges upon a ‘fundamental’ right or interest[.]" Id., 733 F.2d at 133 (citations omitted; emphasis added). Finding that Mr. Cohen had lost no fundamental right or interest, 733 F.2d at 133-34, the court turned to the alternative basis for "strict scrutiny" review, to determine whether the legislation at issue, applying only to the District of Columbia, therefore discriminated against a "suspect class," 733 F.2d at 134-36. The court concluded that the District of Columbia does not define a "suspect class," 733 F.2d at 136. Thus, read in context, Cohen’s conclusion that the District of Columbia does not define a "suspect class" is irrelevant to this case.

And next, the House Officers seek to discount the comparison of the District with the federal enclaves, asserting that "the premise of [the] plaintiffs’ equal protection claim -- that Congress itself has bestowed congressional voting rights on residents of federal enclaves -- appears to be incorrect" (HOMM at 16). Various statutes facially reveal the policies and actions of which the Plaintiffs complain, however, {FOOTNOTE 30: See, e.g., An Act to Provide for Admission of the State of Alaska, Pub. L. No. 85-508, 72 Stat. 339 (1958), at §10(c) & (e) & 11(b), providing that the federal government withheld certain land within the territory as federal enclaves under Article I, § 8, Paragraph 17 and other powers, yet specifying that the federal government’s exclusive jurisdiction over the retained enclaves will not divest the residents of the right to vote or be treated as full citizens of the new State.} and the Defendants’ proposition is rebutted by a plain reading of the case they cite in support of their proposition: Evans v. Cornman, 398 U.S. 419 (1970), and the District Court opinion which Evans affirmed. In Evans, Justice Thurgood Marshall observed,

398 U.S. at 423-25 (citations and footnotes omitted). The District Court’s opinion, affirmed by the Supreme Court, makes the situation even clearer. The court noted that,

Cornman v. Dawson, 295 F.Supp. 654, 657-59 (D. Md. 1969), aff’d sub nom Evans v. Cornman, 398 U.S. 419 (1970) (citations, including a list of 12 federal statutes, and footnotes omitted).

In short, the federal enclaves were politically separate from the States and the residents of the enclaves had no rights to vote. {FOOTNOTE 31: In the course of discussing Evans v. Cornman, Defendant Clinton states the residents of the federal enclave at issue -- the National Institutes of Health -- "clearly reside in the geographic boundaries of Maryland" (CM at 18). At the time of Evans, however, it was "clear" the federal enclaves were outside the political boundaries of the States. See id., 398 U.S. at 421, discussing Royer v. Board of Election Supervisors, 231 Md. 561, 191 A.2d 446, cert. denied [!], 375 U.S. 921 (1963). The Supreme Court didn’t seen what is now so "clear" (denying certiorari in Royer), nor did the Maryland courts, nor did the courts of the nation. It’s only "clear" now, and that’s the Plaintiffs’ point: why is it so clear for the enclaves, but not for the District?} Then, by a series of statutes, Congress ceded to the States a plethora of powers such that the States assumed power over the enclaves (as discussed above). Thus, by virtue of a pattern of acts of Congress, the residents of the enclaves won the right to {PAGE 55} exercise fundamental rights as citizens of the states. The key to the change was the Congressional policy of ceding powers over the enclaves to the States, which Congress undertook, in important part, to respect the political rights of the residents. See 2 JOFAWS 221-222 (cited in Cornman, 295 F.Supp. at 656 n.4) and 1 JOFAWS 70 (& 53-55).

The House Officers’ invocation of the Maryland Act for the cession of land for the District of Columbia (HOMM at 16 (saying it was "forever ceded and relinquished"), overlooks the fact that the Virginia Act of cession included identical language. Act of Dec. 3, 1789, 13 Laws of Virginia 43 (Hening, 1823), reprinted in 1 D.C. Code 32-33. Somehow, this language didn’t prevent the federal government from treating the portion of the District of Columbia so ceded by Virginia differently than it has treated the portion of the District so ceded by Maryland. In other words, the language does not bind the federal government in its future treatment of the territory so ceded, nor does it talismanically vaporize the Plaintiffs’ claims.

Finally, the House Officers’ suggestion that it’s "reasonable" for Congress to treat the District as it has (HOMM at 17) fails to heed the"strict scrutiny" standard applied to the equal protection claims at issue in this case, not to mention the standard of review under Fed. R. Civ. P. 12(b)(6). The burden under Rule 12(b)(6) is entirely on the party moving for dismissal to show, "beyond a doubt that the plaintiff can prove no set of facts in support of [the] claim which would entitle [the plaintiff] to relief." Conley, supra, 355 U.S. at 45-46 (emphasis added). The Defendants have shown no compelling governmental reason for holding the citizens of the District of Columbia in political servitude. {FOOTNOTE 32: The House Officers close their memorandum citing Senator Kennedy (HOMM at 18). Despite the limitations on the Court’s ability to review the "purpose," "motive," or "wisdom" of Congressional actions, see, e.g. McCray, supra, 195 U.S. at 54-59; R.E.A., supra, 336 U.S. at 109, the Plaintiffs take it the House Officers’ will have no objection to review of other statements of Congress indicating its purposes or motives for denying self-government to the citizens of the District, when it becomes material to the issues in the case. Vide: Memorandum of Amicus Curiae American Friends Service Committee Concerning Motions to Dismiss (Oct. 27) at 12-13.} {PAGE 56}

6: Conclusion: The Plaintiffs State Viable Equal Protection Claims

In filing Motions to Dismiss under Federal Rule of Civil Procedure 12(b)(6), the Defendants assumed the responsibility of demonstrating, "beyond a doubt," that the plaintiffs here could "prove no set of facts" supporting their claims, such that the Court could grant them relief. Conley, supra, 355 U.S. at 45-46; In re Swine Flu, supra, 880 F.2d at 1442. The Defendants have failed to make a showing which dents the Plaintiffs’ claims, even before the Plaintiffs present their opposition to the Defendants’ assertions. Therefore, failing to carry their burden under Fed. R. Civ. P. 12(b)(6), the Defendants are not entitled to dismissal of the Plaintiffs’ Equal Protection claims. Rather, the Plaintiffs have stated viable Equal Protection claims.

Railway Express Agency, supra, 336 U.S. at 112 (Jackson, J., concurring) (terms altered to conform to the merits of the instant case under subsequent law; see BMW, supra, 517 U.S. at 587; Kramer, supra, 395 U.S. at 627. {PAGE 57}

B: THE PLAINTIFFS STATE VIABLE GUARANTEE CLAUSE CLAIMS

Count Two of the Complaint (¶¶ 1-36 & 88-118) states claims under the Guarantee Clause of the Constitution. The Guarantee Clause provides that "[t]he United States shall guarantee to every State in this Union a Republican Form of Government[.]" U.S. Const., art. IV, §4, cl.1. The House Officers (HOMM at 12-14) and Defendant Clinton (CM at 19-20) assert that the Plaintiffs have failed to state a claim under the Clause.

1: The Guarantee Clause is Justiciable

The Defendants cite a number of cases which, they assert, stand for the proposition that claims under the Guarantee Clause are absolutely not justiciable (HOMM at 11-12 & n.9; CM at 3, 4-5 & n.2). The vast majority of the cases stating that claims under the Clause are not justiciable say only this, without providing any reason whatsoever for the holding. See, e.g., City of Rome v. United States, 446 U.S. 156, 182 n.17 (1980); Chiles v. United States, 69 F.3d 1094, 1097 (11th Cir. 1995), cert. denied, 517 U.S. 1188 (1996). While many cases say claims under the Clause are not justiciable, such a bald assertion is untenable for at least four reasons.

First: The Supreme Court has indicated that "perhaps not all claims under the Guarantee Clause present nonjusticiable political questions." New York v. United States, 505 U.S. 144, 185 (1992) (citing Reynolds, supra, 377 U.S. at 582). Thus, the Supreme Court has noted that the door to the courthouse is not jurisdictionally closed to claims under the Clause.

Second: At the same time some courts were saying claims under the Clause were not justiciable, other courts were addressing such claims "without any suggestion that the claims were not justiciable." New York, supra, 505 U.S. at 184-85 (citing five cases); see also Bates v. Jones, 131 F.3d 843, 858-59 (9th Cir. 1997), cert. denied, 118 S.Ct. 1302 (1998) (Rymer, concurring); Brewer v. Hoxie School Dist. No. 46, 238 F.2d 91, 99-100 (8th Cir. 1956); Hoxie School Dist. {PAGE 58} No. 46 v. Brewer, 137 F.Supp. 364, 366-67, 370 (E.D. Ark.), aff’d, 238 F.2d 91 (8th Cir. 1956) (deciding the case in favor of the plaintiffs, largely on Guarantee Clause grounds, saying that, under the Clause, the plaintiffs "logically appealed to the national courts for protection[.]"); Downs v. Birmingham, 240 Ala. 177, 198 So. 231 (1940). Other cases have "assumed without deciding" that claims under the Clause are justiciable, but that the claims before the particular court had no merit. See, e.g., State of Texas v. United States, 106 F.3d 661, 667 (5th Cir. 1997); Padavan v. United States, 82 F.3d 23, 28 (2nd Cir. 1996); Kelly, supra, 69 F.3d at 1511.

Third: Most of the claims dismissed with the statement that no claims under the Guarantee Clause are justiciable boil down to pleas for the court to select between two or more forms or actions of government on the assertion that one is "more republican" than the other. Luther v. Borden, 48 U.S. (7 How.) 1 (1849), the ancestor of all cases which ever held that all claims under the Guarantee Clause are not justiciable, was such a case. Luther was not a simple action by Mr. Luther against Mr. Borden for trespass, as appeared on the face of the case; each man was a node on competing factions who contended for the title of being the rightful government of the State of Rhode Island. 48 U.S. at 34-37; William M. Wiecek, The Guarantee Clause of the U.S. Constitution, 111-29 (1972). The Court wisely said the decision which of the two factions was indeed the rightful government was for the "political" Branches, not the judicial. 48 U.S. at 42, 47. Thus, Luther provides a "limited holding," New York, supra, 505 U.S. at 184, for universal nonjusticiability. The same problem arises in later cases, albeit far less dramatically. See, e.g., Pacific States Tel. & Tel. Co. v. Oregon, 223 U.S. 118 (1912); State of Texas, supra, 106 F.3d at 667. Thus, if adjudication of claims under the Guarantee Clause does not compel the court to select among competing political agendas, the claims may be adjudicated. In other words, if the claims are not wholly "political questions," see Baker, supra, 369 U.S. at 217, they are justiciable.

{PAGE 59}

Fourth: As a buttress to the three preceding observations, "[i]t cannot be presumed that any clause in the constitution is intended to be without effect; and, therefore, such a construction is inadmissible, unless the words require it." Marbury, supra, 5 U.S. at 174. The theory that the Guarantee Clause is nonjusticiable means that it is unenforceable and is, therefore a nullity. Likewise, the Clause imposes a duty on "the United States;" no Branch of the government of the United States is absolved from heeding its mandate. If any Branch shirks its rightful tasks, then that Branch violates its duties under the Constitution. Just so, the judiciary has an affirmative duty under the Clause to address claims under the Clause.

For all these reasons, the Guarantee Clause is justiciable. There is no reason to dismiss claims under the Clause at the door; rather, they should be addressed on their merits as would claims under the Equal Protection provisions of the Constitution.

2: The Plaintiffs are Beneficiaries of the Guarantee Clause

The House Officers assert that the Plaintiffs have no claims under the Clause because it "expressly applies only to the ‘states’" (HOMM at 13). This is not at all true. The Guarantee Clause is part of the larger "aegis" of the Constitution, Downes, supra, 182 U.S. at 260-61; accord Callan, supra, 127 U.S. at 550, which protects the citizens of the District, and there are at least six reasons that the "guarantee" of the Clause runs to the citizens of the District of Columbia, despite the textual reference to "every State" in the Clause.

First: If, arguendo, the Guarantee Clause doesn’t apply to the District of Columbia because the Clause "expressly applies only to the ‘states’" (HOMM at 13), the Plaintiffs still have a valid claim following the House Officers’ assertion, because the Clause certainly applied in the past. The House Officers’ assertion only adds an additional step to analysis of the Plaintiffs’ claims. {PAGE 60}

On June 21, 1788, New Hampshire became the ninth State to ratify the Constitution, by which act the United States of America was formally "Established" under the Constitution ("The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same." U.S. Const., art. VII). See generally Michael Allen Gillespie and Michael Lienesch, Ratifying the Constitution (1989). Since Maryland had already ratified the Constitution on April 28, 1788, the Guarantee Clause "applied" to the State of Maryland, to the benefit of the citizens of Maryland, no later than June 21, 1788.

Therefore, following the House Officers’ assertion, the government of the United States was obligated to guarantee a republican form of government to the State of Maryland. If, for instance, the Maryland legislature had condemned all of Maryland west of the Patuxant River to a military dictator, the federal government would have been obligated to intervene to reestablish a republican form of government. See Baker, supra, 369 U.S. at 246 n.3 (Douglas, J., concurring); compare Luther, supra, 7 How. (48 U.S.) at 45. Of course, on June 21, 1788, the area later to become the District of Columbia was wholly a part of the State of Maryland. Thus, the Guarantee Clause, by the House Officers’ assertion, applied to the citizens who resided within what was to become the District of Columbia.

Although Maryland had authorized a cession of unspecified territory to Congress in 1788, Md. Act, Dec. 23, 1788, ch. 46, reprinted in 1 D.C. Code 33, and Congress had accepted the offer from Maryland and the actual cession from Virginia in 1790, Act of July 16, 1790, 1 Stat. 139, ch. 28, reprinted in 1 D.C. Code 40-41, the cession from Maryland did not become effective and complete as to governmental sovereignty until December 19, 1791, when Maryland formally ratified the cession of specified territory which President Washington had settled upon as the exact place for the District, Md. Act, Dec. 19, 1791, ch. 45, reprinted in 1 D.C. Code 33-39. See {PAGE 61} Roy P. Franchino, The Constitutionality of Home Rule and National Representation for the District of Columbia; Part I: Historical Considerations and Home Rule, 46 Geo. L.J. 207, 214 (1957). Thus, under the House Officers’ assertion, the benefits of the Guarantee Clause were stripped from the citizens of the District of Columbia and the federal government commenced to violate its obligations under the Clause on December 19, 1791. {FOOTNOTE 33: There is room for debate exactly when the cession "happened:" whether it was in 1791, as asserted here, or in 1800. See Peter Raven-Hansen, Congressional Representation for the District of Columbia: A Constitutional Analysis, 12 Harv. J. Legis. 167, 173-74 (1975). It’s not necessary for the present argument, however, to demonstrate why the former date comports with the historical record and with law of cessions generally. Whether in 1791 or 1800, the benefits of the Guarantee Clause were stripped from the citizens of the District on one date or the other.}

At the very least, the Clause was binding at the very moment the House Officers assert it ceased to apply, which was at the moment the District of Columbia ceased to be a part of the State of Maryland. And at that moment, the Clause obligated the government of the United States to prevent the dismantling of republican forms of government which followed the cession. In other words, under the House Officers’ theory, the Plaintiffs have substantial claims under the Guarantee Clause, as the heirs and subjects of the original and continuing violations of the Clause.

Second: The Court has more current reasons for finding that the Clause applies to the District of Columbia. The Guarantee Clause must be read in pari materia with the remainder of Article IV of the Constitution. Specifically, all other provisions of Article IV of general application which refer to "States" apply as well to the District of Columbia. {FOOTNOTE 34: Although Section 3 of Article IV is not generally relied upon for day-to-day governmental functions, it would apply also to the District, if the District had any interests in the substance of the Section. Section 3 contains two clauses. The first concerns admission of "new states" to the union. Certainly, if the District ever sought admission to the union as a state, it would do so under Art. IV, § 3, cl. 1. Since there is no reason to assume that the District could never seek to become a state, Section 3 would apply to the District if it sought admission as a state. The second Clause concerns disposition of the territories (and property) of the United States, protecting the claims of the various states and of the United States on those territories. Edwards v. Carter, 580 F.2d 1055, 1059 (D.C. Cir.), cert. denied, 436 U.S. 907 (1978); see also United States v. Steinmetz, 973 F.2d 212, 222 (3rd Cir. 1992). If the District had been among the places having any interests in "Western lands," (for instance, as having been part of Maryland), then Clause 2 would have applied as well to the District.} Thus, the citizens {PAGE 62} of the District of Columbia are beneficiaries of the Full Faith and Credit Clause (Article IV, Section 1). Davis v. Davis, 305 U.S. 32, 39-41 (1938); Washington Gas Light Co. v. Hsu, 478 F.Supp. 1262, 1263 (D. Md. 1979) (Maryland credits District’s judicial proceedings); Fehr v. McHugh, 413 A.2d 1285, 1286-87 (D.C. Ct. App. 1980) (District’s local courts credit judicial proceedings of a State). The citizens of the District are also beneficiaries of the Privileges and Immunities Clause (Article IV, Section 2, Clause 1). Teare v. Committee on Admissions, 566 A.2d 23, 29 (D.C. Ct. App. 1989) (rejecting a claim under the Clause, but only by examining the claim under the Clause, with no indication the clause might not apply to the District). Finally, the citizens of the District are beneficiaries of (and subject to) the Extradition Clause (Article IV, Section 2, Clause 2). Martin v. Maryland, 287 A.2d 823, 825 (D.C. Ct. App. 1972). Thus, since there’s no legitimate reason to distinguish the Guarantee Clause from the all the rest of Article IV, its reference to "States" cannot legitimately be read differently than the reference to "States" in all the rest of Article IV. In other words, the Clause must extend to the citizens of the District as much as does the rest of Article IV.

Third: The Constitution was not created to enthrone abstractions, but to secure a variety of benefits to "the People of the United States." U.S. Const., Preamble (emphasis added). All the institutions created and abstractions referenced in the Constitution are important only because of their role serving and sustaining "a more perfect Union, . . . Justice, . . . domestic Tranquility, . . . common defence, . . . general Welfare, and . . . the Blessing of Liberty[.]" Id. {PAGE 63}

New York, supra, 505 U.S. at 181 (O’Connor, J., quoting Coleman v. Thompson, 501 U.S. 722, 759 (1991) (Blackmun, J., dissenting) and Gregory v. Ashcroft, 501 U.S. 452, 458 (1991).

Fourth: The preceding argument that the District Clause runs to the benefit of the Plaintiffs conforms with the well-established doctrine that the federal government stands in direct relation to the citizens of the United States. No state may interpose itself between the national government and the citizens of the United States, because the citizens created the Constitution for their purposes, not for those of the states. New York, supra, 505 U.S. at 165, 178; see also F.E.R.C. v. Mississippi, 456 U.S. 742, 792, reh’g. denied, 458 U.S. 1131 (1982) (O’Connor, J., concurring in part and dissenting in part); compare Gregory, supra, 501 U.S. at 463 (deriving the Guarantee Clause from the "authority of the people of the States" (emphasis added)).

Downes, supra, 182 U.S. at 378 (Harlan, J., dissenting; citing Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 327 (1816)). {FOOTNOTE 35: The Fourteenth and Seventeenth Amendments also signal a fundamental shift in emphasis in the Constitution, from implicit treatment of the "States" as entities independent of the people who reside within geographic places, to explicit treatment of the "States" as expressions of the consent and political will of the people. Thus, for instance, references to "States" as having "rights" are based on an archaic reading of the Constitution which cannot be sustained today. Rather, the people have rights, the rights inhere in them, not in the artificial collective.} {PAGE 64}

Fifth: In light of the two preceding arguments that the Guarantee Clause runs to the benefit of the Plaintiffs, it’s not surprising that, when we examine the times Congress has responded to the mandate to "guarantee" a republican form of government, the mandate has been extended to people, and not to "states" as entities or as governmental units. Texas v. White, 74 U.S. (7 Wall.) 700, 720-21 (1869).

For instance, Congress has admitted thirty-seven new states into the union. Each time, "[t]he Constitution requires . . . [that] ‘the United States guaranty to every State in the Union a republican form of government.’ Hence the necessity, in admitting a State, for Congress to examine its constitution." Scott, supra, 46 U.S. at 381 (McLean, J., dissenting). Thus, as an element for admission, Congress has noted whether the citizens had shaped for themselves a government which was republican in form, before admitting their new state to the union. {FOOTNOTE 36: For instance, when Congress admitted Alabama as a state, it noted that the people of the territory had framed a constitution and state government which were republican in form. R. 1, 16th Cong., 1st Sess., 3 Stat. 608 (1819). When Congress admitted Alaska as a state, Congress noted as a foundation of admission that "the constitution . . . adopted by a vote of the people of Alaska . . . is hereby found to be republican in form and in conformity with the Constitution of the United States and the principles of the Declaration of Independence . . . ." Pub. L. No. 85-508, § 1, 72 Stat 339 (1958). When Congress admitted Hawaii as a state, is noted the same thing as a foundation for admission. Pub. L. No. 86-3, § 1, 73 Stat. 4 (1959).}

Sixth: The Guarantee Clause must run to the citizens of the District (and to the citizens of any other area within the United States) because the Guarantee Clause is a mandate to enforce the most fundamental precept underlying all government in the United States of America: that ours is "government of the people, by the people, [and] for the people." Abraham Lincoln, Address at Gettysburg, Pennsylvania (Nov. 19, 1863); see U.S. Term Limits, Inc. v. Thornton, 115 S.Ct. 1842, 1851, 1863-64 (1995); M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 404-05 (1819). {PAGE 65} The Guarantee Clause is framed to insure that all governments in the United States will always be "by the people."

Thus, the Plaintiffs in this case are among the intended beneficiaries of the Guarantee Clause. The Defendants offer little to rebut this conclusion. The House Officers cite three cases in support of their general assertion that the Guarantee Clause only concerns "states" as such (HOMM at 13 n.10, citing Johnson v. Genesee County, Michigan, 232 F.Supp. 567 (E.D. Mich. 1964), Downes v. Bidwell, 182 U.S. 244 (1901), and State ex rel. Porterie v. Smith, 166 So. 72 (La. 1936)). These cases are best addressed in light of this third point.

Johnson merely restates portions of the discussion in Porterie, saying the Clause "is a guarantee to the states, as such[,] . . . [and] does not extend to systems of local government for municipalities, counties, or parishes[.]" 232 F.Supp. at 570. Porterie cites Texas, supra, 74 U.S. at 721, for the proposition that the guarantee of the Clause is "to the states, as such." 166 So. at 82 (emphasis in Porterie). Meaning no disrespect to the Supreme Court of Louisiana, Texas v. White does not really support this assertion and even bears directly against the House Officers’ application of the disembodied quotation.

{PAGE 66}

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