No. 00-97
In The
Supreme Court of the United States
Lois E. Adams, et al.,
Appellants,
v.
William Jefferson Clinton, et al.
Appellees
On Appeal from
The United States District Court
for the District of Columbia
ADAMS' OPPOSITION
TO APPELLEE CLINTON'S
MOTION TO DISMISS OR AFFIRM
George S. LaRoche,
Counsel of Record
1 Valley View Avenue
Takoma Park, MD 20912
301-891-3857
TABLE OF CONTENTS
TABLE OF CONTENTS i
TABLE OF AUTHORITIES ii
APPELLEE MISSTATES THE CLAIMS MADE
AND RELIEF SOUGHT IN THE CASE 1
THIS CASE WAS PROPERLY BEFORE
A THREE-JUDGE DISTRICT COURT
UNDER 28 U.S.C. § 2284(a) 3
APPELLANTS HAVE STANDING 5
THE IDENTICAL STATUS
OF AREAS AT ISSUE IS CLEAR 6
THE TWENTY-THIRD AMENDMENT IS NO BAR 10
CONCLUSION 10
APPELLEE MISSTATES THE CLAIMS MADE
AND RELIEF SOUGHT IN THE CASE
Appellee William Jefferson Clinton in his official capacity as President of the United States files a Motion to Dismiss or Affirm ("CMDA") in which he asserts that the key question in this case is whether equal protection requires Congress to admit the District of Columbia as a State or make it part of a State (CMDA I, 4, 9, 13). As interesting as this question is, it isn't the question presented in Adams. Adams asks whether equal protection requires Congress to treat all people who reside in places where Congress has plenary powers in substantially the same way with regard to inclusion in or exclusion from apportionments of congressional districts (at least absent compelling governmental reasons to discriminate and absent narrowly tailored distinctions between places) (Jurisdictional Statement ("JS") at i).
The question presented in Adams could be answered in the affirmative, yet not be a harbinger of the District's statehood or unification with a state, for Congress could take action which would result in exclusion of all similarly-situated people from apportionments of congressional districts. See Heckler v. Mathews, 465 U.S. 728, 737-40 (1984); Orr v. Orr, 440 U.S. 268, 272 (1979). District residents would then be treated equally to all similarly-situated people, and the claim presented before this Court would be at an end.
Appellee also mischaracterizes the injunctions sought. Adams doesn't seek injunctions requiring Appellee "to transmit to Congress an apportionment of one Representative for each State," nor requiring Appellees House Officers to "certify, enroll, and admit to the House floor at most one Representative for each State" (CMDA 5). The Complaint filed in this case (see JS App. F) is clear: Adams demands injunctions that Appellees not transmit apportionments of congressional districts which reflect exclusion of District residents and inclusion of all similarly-situated people. The injunctions demanded are purely prohibitory, not mandatory.
The additional provisions suggested in the Complaint merely reflect three facts. First, the Constitution requires an apportionment of no less than one Representative per State. U.S. Const., Art. I, § 2. Adams don't ask the Court to ignore that requirement, much less to order Appellees to violate it. So Adams' demands reflect the constitutional mandate. (1)
Second, to be included in apportionments of representation in Congress under the plain terms of Article I, § 2, a person must be a citizen of a State. Unless the plain terms of the Constitution are ignored or it's amended, residents of the District of Columbia can be included in apportionments of congressional districts only through either of two avenues: the place where they reside might be admitted as a state or might be unified with an existing state. Inclusion of language reflecting these facts, therefore, merely adds realistic "sunset clauses" to the injunctions requested.
Finally, plaintiffs are entitled to ask a court to issue injunctions framed in a form most desirable to them, though the Court has the discretion to grant them something less desirable. See Dann v. Studebaker-Packard Corp., 288 F.2d 201, 216 (6th Cir. 1961) ("a plaintiff is entitled to any relief appropriate to the facts alleged in the bill and supported by the evidence, even where [the plaintiff] has not prayed for such relief."); Adams v. Bell, 711 F.2d 161, 203 (D.C. Cir. 1983), cert. denied, 465 U.S. 1021 (1984); JS App. F at 28, ¶ E (requesting "other relief"). Thus, the Court could agree with Adams on every legal principal, and then order Appellees simply not to report any apportionment which includes all persons similarly situated to District residents, but which doesn't include District residents. Appellees could then avoid violating Appellants' rights to equal protection by reporting apportionments which don't include anyone now or ever under Congress' plenary powers. Appellants wouldn't prefer this course of action, but the equal protection claims presented in their case would be at an end.
THIS CASE WAS PROPERLY BEFORE
A THREE-JUDGE DISTRICT COURT
UNDER 28 U.S.C. § 2284(a)
Appellee argues that this case was not properly before a Three-judge District Court because it doesn't fall within "the meaning of" 28 U.S.C. § 2284(a) (CMDA 9-12), but Appellee provides no clear-much less cogent-explanation of "the meaning" of the Section. Therefore, we're left with the plain language: Section 2284(a) provides a Three-judge District Court to hear "challeng[es to] the constitutionality of apportionment of congressional districts[.]" Adams has shown that the present apportionment of congressional districts includes all persons who are or ever were under the same powers of Congress as residents of the District, while the latter remain excluded from that apportionment. This violates Appellants' rights to the equal protection of the laws under the Constitution (JS 21-27). Therefore, Adams was properly before a Three-judge District Court.
Appellee Clinton states, however, that Adams "do[es] not contend that the current apportionment of any congressional district is unconstitutional" (CMDA 10), but Section 2284(a) doesn't require a challenge to a particular district or boundary, and the contention is simply incorrect on the facts (see JS App. F at ¶¶ 68-69). And since the allocation of seats among all congressional districts reflects the fact that Congress allows all residents of all federal enclaves and the former portion of the District south west of the Potomac River and of all continental territories to be citizens of the States and thus to be included in calculating those apportionments, then the current apportionment of all congressional districts (note that Section 2284(a) uses the plural) is at issue here.
Neither of the cases cited by Appellee as authority for the proposition that this case was not a Section 2284(a) case, City of Philadelphia v. Klutznick, 503 F. Supp. 657(E.D. Pa. 1980), and Federation for American Immigration Reform [FAIR] v. Klutznick, 486 F. Supp. 564 (D.D.C.), app. dismissed, 447 U.S. 916 (1980) (CMDA 10), augurs against Adams' presentation of their case to a Three-judge District Court. Both City of Philadelphia and FAIR concerned challenges to the census alone as a predicate to a future apportionment, while Adams concerns a challenge to the present (final) apportionment itself. Thus Adams falls under Section 2284(a) according to City of Philadelphia and FAIR, for Adams presents a legal challenge "to the final product-the apportionment-and not merely to the composition of an ingredient-the census-used in the product's manufacture." 503 F.Supp. at 658. And as Appellee implicitly admits by citing Franklin v. Massachusetts, 505 U.S. 788 (1992), and United States Dep't of Commerce v. Montana, 503 U.S. 442 (1992) (CMDA 10-11), challenges to decisions which alter the composition, size, or configuration of populations correlated with geographical districts are properly heard under Section 2284(a), for these decisions can be binding upon actual apportionments. (2)
Appellee also makes a quasi-standing argument that Adams wasn't properly before a Three-judge District Court because it presents no more than a plea which could "lead to" a change in apportionment (CMDA 10). This argument overlooks two points. First, Section 2284(a) doesn't require a plaintiff to demand a particular reapportionment. Second (related to the first point), apportionment is primarily for the legislature, so an injunction barring an apportionment which violates constitutional rights is properly followed by handing the matter back to the legislature. Thus, Adams doesn't seek a particular, final form of reapportionment from the Court, since that particular, final form is a political matter for the residents of the District and for Congress.
Finally, Appellee says "appellants acknowledged" that they "do not come to court demanding 'representation' in Congress[,]" (CMDA 11, quoting Appellants, below), asserting this means the case did not present a demand for reapportionment under Section 2284(a). But Section 2284(a) does not say that a Three-judge District Court is only available to plaintiffs who demand a specific reapportionment ("representation" in congress), and Appellants' statement is taken out of context at any rate; it was to rebut Appellee Clinton's attempt below (like here) to treat the claims in Adams as if they were interchangeable with those in Alexander v. Daley, on appeal sub non Alexander v. Mineta, No. 99-2062 (see JS 13-19). (3)
APPELLANTS HAVE STANDING
Appellee argues that Appellants lack standing because the relief sought would not redress their injuries (CMDA 13-16), but this assertion is based on the mischaracterization of Adams' claims discussed above (see pp. 1-2). Adams doesn't ask the Court to order Congress to do anything at all. Adams asks the Court to restrain Appellees as the agents charged by Congress to calculate, execute, or enforce apportionments, insofar as those apportionments violate constitutional mandates of equal treatment. Appellee's arguments that such restraint would not redress Adams' "alleged injuries" (CMDA 14-15) reflects Appellee's confusion of political goals with legal goals. Both Adams and Appellee may have political goals, but their respective political goals do not dispose of the legal merits of this case. The fact that Adams' legal claims and the limited legal remedies sought in this suit might not convey Adams to the political goals imputed to them by Appellee doesn't mean Appellants lack standing.
Also, Appellee argues that "the requested injunctions would require the President and the House Officers to violate the Constitution" (CMDA 15). This is incorrect. As discussed above (pp. 1-2), Article I, § 2 of the Constitution requires that there be an apportionment, but it doesn't require 435 Representatives, Act. of Aug. 8, 1911, Pub. L. 62-5, ch. 5, 37 Stat. 13 (1911), nor that they be allocated according to "the method of equal proportions," 2 U.S.C. §§ 2a(a) & 2b, nor does it require that some people who reside in places where Congress has or has had the power of "exclusive legislation" be included in those apportionments while others under identical powers be excluded, see JS 4-11, 21-27. Like the decisions that 435 Representatives should be allocated under a particular mathematical formula, the decision to treat some people one way and to treat identically situated people another way reflects legislative policy-not constitutional mandate, so it's subject to judicial review. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 166, 170, 177 (1803).
And finally, Appellee Clinton argues that the relief sought by Adams is beyond the power of the courts, because "the courts cannot enjoin the President to perform a non-ministerial task" (CMDA 16 n.11). As with the rest of Appellee's standing arguments, this argument is based on misstatement of Adams' demands. Adams doesn't ask the Court to order the President to perform an action; Adams asks for an order that the President not perform an action. Since 2 U.S.C. §2a(a) confers on the President a non-discretionary duty to make a simple mathematical calculation according to a specified formula, the President's constitutional roles and Separation of Powers are not jeopardized. (5) A prohibitive injunction, in this situation, is within the Court's power.
THE IDENTICAL STATUS OF AREAS AT ISSUE IS CLEAR
Appellee argues that Adams' equal protection claim "is fundamentally inconsistent with the text and structure of the Constitution, two hundred years of historical experience, and the purpose of the District Clause" (CMDA 18ff). Appellee argues that the District/Enclaves Clause "distinguishes between the District and the enclaves in terms of their relationship to the States[,]" suggesting that the Clause defines enclaves as always parts of States, while "contemplating a complete severance of the District from those States" (CMDA 19). Though Appellee correctly quotes the Constitution, he ignores the consistent doctrine expressed in the federal and state courts for three-quarters of the nation's history construing those words (6) and he ignores the reports of the blue-ribbon Interdepartmental Committee for the Study of Jurisdiction over Federal Areas Within the States, chaired by an Assistant [U.S.] Attorney General (JS 6, 24), and he ignores reports generated within the Department of Justice itself, e.g., U.S.D.O.J., Land and Natural Resources Division, Federal Legislative Jurisdiction (1969) (JS 6, 17, 24), all of which recite and prove the history recited by Adams (JS 4-9).
Appellee quotes James Madison in The Federalist No. 43 to show that the Framers intended to sever the District from the States (CMDA 20), but in the very next paragraph following the language Appellee quotes, Madison declares, "[t]he necessity of a like authority over forts, magazines &c. established by the general government is not less evident[;]" like the District, "they should be exempt from the authority of the particular State" from which they were to be taken. The Federalist No. 43 (James Madison) (reprinted in 2 Bernard Bailyn, ed., The Debate on the Constitution, 72 (1993)). (7)
Appellee also argues that federal enclaves are necessarily "temporary in nature" (CMDA 23), citing S.R.A., Inc. v. Minnesota, 327 U.S. 558 (1946), and Fort Leavenworth R.R. v. Lowe, 114 U.S. 525 (1885). This is not generally true. (8) The enclave at issue in S.R.A. (land for a post office building) was "temporary," but other enclaves are quite permanent, including portions of Fort Leavenworth. See, e.g., Stokes v. Adair, 265 F.2d 662 (4th Cir.), cert. denied, 361 U.S. 816 (1959).
Appellee also argues Congress' actions are subject only to "rational basis" testing, not "strict scrutiny" (CMDA 21-23), but Appellee gives no reason for this, other than to assert that Congress "has" a "rational basis" for disparate treatment of the District. Appellee's argument isn't supported by the facts, however. The public record reveals that Congress has no reason for continuing disparate treatment of all portions of the District outside the National Capital Service Area, (9) and the Record in this case shows that there is no federal function in Appellants' residences or places of work. (10) Thus, there are no reasons for the disparate treatment, even assuming that strict scrutiny doesn't apply. But strict scrutiny does apply, for among the rights burdened by the disparate treatment are fundamental rights, such as those to vote, which could be exercised if the Adams were included in existing apportionments of congressional districts, so this case falls firmly in the "strict scrutiny" category of equal protection cases. See Laurence H. Tribe, American Constitutional Law, 1454, 1463-65 (2d ed., 1988).
In sum, all Appellee's arguments here boil down to the unsettling suggestion that the Constitution does not apply to the District of Columbia, (11) that Article I, § 8, cl. 17 makes the District "extraterritorial" to the Constitution. But it's clear that the Constitution does apply here and Congress may not violate it, howsoever extensive its powers under the District/Enclaves Clause. Palmore v. United States, 411 U.S. 389, 397-98 (1973); National Mutual Ins. Co. of Dist of Col. v. Tidewater Transfer Co., 337 U.S. 582, 602 (1949); O'Donoghue v. United States, 289 U.S. 516, 539 (1933).
THE TWENTY-THIRD AMENDMENT IS NO BAR
In closing, Appellee Clinton argues that the Twenty-third Amendment locks the District into a status permanently "distinct from that of a State" (CMDA 24-25). But the history of the Amendment indicates it doesn't reflect reasoned policy-making so much as almost accidental tinkering, see David E. Kyvig, Explicit and Authentic Acts, Amending the Constitution, 1776-1995, 349-55 (1996), and (more to the point) there's no authority for Appellee's assumption that the Amendment shields Congress from its obligations to maximal respect for Appellants' rights to equal protection, guaranteed elsewhere in the Constitution; those rights endure. (12)
CONCLUSION
For these reasons, Appellee Clinton's Motion to Dismiss or Affirm should be denied and jurisdiction over this case noted.
Respectfully submitted,
George S. LaRoche,
Adams' Counsel of Record
1. Also, Section 2 of Amendment Fourteen provides that "the basis
of representation" shall be reduced for a jurisdiction which denies
the right to vote to a segment of its population. While not clearly
dispositive, this is suggestive of the scope of a court's power.
2. For comparison, it's probable that a decision to wholly exclude
an all-black population from apportionment, 3. Appellee also suggests Appellants have "substantial doubt"
whether their claim was properly before a three-judge court (CMDA
11 n.6), but the text Appellee cites in support of this attribution (JS
21-27, 30) is also taken out of context. It illuminated the same fact
Appellee himself admits, that "it is not entirely clear whether the
three-judge court rejected the claim that [ 5. For the purposes of this case, 7. The court below also discussed "original intent" behind the
District/Enclaves Clause, saying it arose in response to (what many
call) the "Philadelphia mutiny" (JS App. A-24; C-7-9). As authority
for this story, the Court cited the definitive history of the event, 8. West Point, for instance, is one of our oldest enclaves. Though
occupied since before the Revolution and expanded starting in 1790
to facilitate the future military academy, 1 Stat. 129 (1790), formal,
exclusive jurisdiction wasn't ceded to Congress until 1826. Edward
C. Boynton,
We all know that the District of Columbia was ceded by the state of Maryland to the United States, and no resident of the District votes anywhere; and of course a resident on the West Point property occupies the same relation to the government and the state of New York as a resident of the District of Columbia does to the state of Maryland.
In re Town of Highlands, 48 N.Y.St.Rpt. 795, 22 N.Y.Supp. 137, 140
(Sup. Ct. 1892) (emphasis added). This situation has changed as a
result of the same pattern outlined by Adams (JS 6-7), so all
permanent residents of West Point are now included in
apportionments of congressional districts for the State of New York.
9. The NCSA "separate[s] out and protect[s] the Federal interest
. . . [and] mean[s] constitutionally that the Congress would have no
legitimate responsibility whatsoever outside of" the NCSA. 119
Cong. Rec. 33,647, 33,648 (1973) (Rep. Ron Dellums (D-Calif.)).
10. Appellants might coin the same language Congress used in the
Act retroceding "Alexandria County" to the State of Virginia in 1846,
9 Stat. 35, which Appellee Clinton quotes (CMDA at 23-24):
no more territory ought to be held under the exclusive legislation given to Congress over the District which is the seat of the General Government than may be necessary and proper for the purposes of such a seat; and * * * experience hath shown that the portion of the District of Columbia ceded to the United States by the State of [Maryland and lying outside the National Capital Service Area] has not been, nor is ever likely to be, necessary for that purpose[.]
Appellee didn't submit a shred of evidence to the court below in
support of his arguments otherwise, nor has Congress made any
specific and compelling finding otherwise to be submitted.
11. The Department of Justice has taken this position since the
District's earliest days.