P R O C E E D I N G S
JUDGE OBERDORFER: GOOD MORNING, LADIES AND GENTLEMEN.
THE DEPUTY CLERK: CONSOLIDATED CIVIL CASES 98-1665, ADAMS VS
CLINTON, AND CIVIL ACTION 98-2187, ALEXANDER VS ZIGLER. SPEAKING FOR THE
PLAINTIFFS: MR. MILLER, MR. LAROCHE AND MR. FERREN; FOR THE DEFENDANTS:
MR. TYLER, MR. KIRCHER, MR. HUEFNER AND MR. REZNECK.
JUDGE OBERDORFER: MR. MILLER. GOOD MORNING, SIR.
MR. MILLER: GOOD MORNING, YOUR HONOR. BEFORE I BEGIN --
THE COURT: HOW MUCH TIME ARE YOU EXPECTING TO USE?
MR. MILLER: YOUR HONOR, THE PLAINTIFF'S SIDE WILL BE SPLITTING THE
TIME IN THE ADAMS' SIDE AND THE ALEXANDER SIDE.
I'M SPEAKING FOR THE ALEXANDER PLAINTIFFS AND OUR TIME WILL BE
DIVIDED EVENLY BETWEEN MYSELF AND JUDGE FERREN.
I'LL PRESENT THE OPENING ARGUMENT AND JUDGE FERREN WILL PRESENT
THE REBUTTAL ARGUMENT FOR THE ALEXANDER PLAINTIFFS.
JUDGE OBERDORFER: VERY WELL.
MR. MILLER: AND WE HOPE TO BE GIVEN AN EQUAL AMOUNT OF TIME BY THE
COURT.
JUDGE OBERDORFER: YOU MAY PROCEED.
MR. MILLER: THANK YOU, YOUR HONOR, AND MAY IT PLEASE THE COURT.
THIS IS A LANDMARK OCCASION OF THE HALF MILLION UNITED STATES
CITIZENS LIVING IN THE NATION'S CAPITAL. FOR ALMOST 200 YEARS THE FACT
OF THAT RESIDENCY HAS KEPT THOSE RESIDENTS FROM PARTICIPATING IN THE
SELECTION OF REPRESENTATIVES TO THE UNITED STATES CONGRESS, THE NATIONAL
LEGISLATURE, AND BY REASON OF THE DISTRICT CLAUSE IN OUR CONSTITUTION,
ALSO THE SUPREME LEGISLATURE FOR THE RESIDENTS OF THE DISTRICT OF
COLUMBIA.
DURING THIS TIME, AND ESPECIALLY IN THE LAST CENTURY, THE RIGHT TO
VOTE, THE RIGHT TO SELECT REPRESENTATIVES, IN A REPRESENTATIVE DEMOCRACY
HAS COME TO BE RECOGNIZED AS THE MOST FUNDAMENTAL OF ALL RIGHTS, THE
RIGHT FROM WHICH ALL OTHERS SPRING.
AND AS THE MILLENNIUM APPROACHES VIRTUALLY ALL BARRIERS TO
UNIVERSAL SUFFRAGE FOR FEDERAL OFFICE TO FULL PARTICIPATION FOR UNITED
STATES CITIZENS, AGED 18 AND OVER, IN THE SELECTION OF NATIONAL
GOVERNMENT REPRESENTATIVES HAS BEEN ELIMINATED.
ONE REMAINING GAP EXISTS IN WHAT OTHERWISE WOULD CONSTITUTE FULL
REALIZATION OF THE IDEAL EXPRESSED IN THE DECLARATION OF INDEPENDENCE OF
GOVERNMENT BY THE CONSENT OF THE GOVERNED. THAT REMAINING EXCEPTION IS
THE DISTRICT OF COLUMBIA, THE NATION'S CAPITAL.
THE CASE WE BRING SEEKS TO COMPLETE THE TASK BEGUN BY THE FRAMERS
OF OUR CONSTITUTION, TO FORM A MORE PERFECT UNION BY FULFILLING THE
IDEAL OF A NATIONAL GOVERNMENT SELECTED BY ALL OF THE PEOPLE THAT IT
SERVES.
THE RIGHT WE SEEK TO VINDICATE TODAY IS A RIGHT OF NATIONAL
CITIZENSHIP; IN FACT, A FUNDAMENTAL ATTRIBUTE OF THAT CITIZENSHIP.
IT HAS EMERGED THROUGH DEVELOPMENT OF THE LAW IN THE PAST CENTURY
PRIMARILY THROUGH CONCEPTS EMBODIED AND EXPRESSED IN THE FOURTEENTH
AMENDMENT TO THE CONSTITUTION, BUT BY NO MEANS LIMITED TO THEM.
ITS ROOTS GO BACK TO THE ESTABLISHMENT OF OUR REPUBLIC AND IN THE
PRINCIPLES THAT GAVE BIRTH TO ITS INDEPENDENCE. IT IS NOT DEPENDENT ON
STATE CITIZENSHIP IN THE FULLEST SENSE, THOUGH ITS CONSTITUTIONAL
LEGITIMACY DERIVES FROM THE FACT THAT THE DISTRICT WAS CREATED FROM AND
WAS A PART OF THE ORIGINAL THIRTEEN STATES THAT ESTABLISHED OUR UNION.
THAT IS THE RIGHT WE ASK THE COURT TO VINDICATE TODAY.
WE BASE OUR CLAIM ON THE CONSTITUTIONAL PROPOSITION THAT EVERY
CITIZEN AGED 18 AND OVER WHO HAS NOT FORFEITED HIS RIGHT OR HER RIGHT BY
FELONIOUS CONDUCT HAS THE RIGHT TO VOTE FOR FEDERAL OFFICERS. THAT COMES
WITH BEING A CITIZEN OF THE UNITED STATES, AND THERE ARE A SERIES OF
PRECEDENTS IN THE SUPREME COURT FROM WHICH THIS CONCLUSION IS DRAWN AND
WE BELIEVE STRONGLY SUPPORTED.
IT BEGINS, I THINK, WITH EX PARTE YARBOROUGH BACK OVER A HUNDRED
YEARS AGO. IT ESTABLISHED THE PROPOSITION THEN THAT ANYONE WHO QUALIFIED
FOR A VOTE UNDER STATE LAW HAD A CONSTITUTIONAL RIGHT, A PRECIOUS
CONSTITUTIONAL RIGHT, TO VINDICATE THAT RIGHT WITHOUT INTERFERENCE
EITHER FROM GOVERNMENTS OR FROM INDIVIDUALS.
AND IT CARRIES THROUGH IN SUCH DECISIONS AS EX PARTE QUARELS IN
UNITED STATES VS CLASSIC CASE WHICH APPLIED THAT PRINCIPLE TO PRIMARY
ELECTIONS FOR THE UNITED STATES CONGRESS TO WESBERRY VS SANDERS, WHICH
IS FOUND IN ARTICLE 1, SECTION 2 OF OUR CONSTITUTION; AND A RIGHT TO
VOTE FOR A NATIONAL OFFICE, POWELL VS MCCORMACK, WHICH REAFFIRMED THE
FUNDAMENTAL NATURE OF THAT RIGHT; AND MOST RECENTLY IN THE TERM LIMITS'
CASE WHICH STRESSED THAT THE MEMBERS OF CONGRESS OWE THEIR ALLEGIANCE
PRIMARILY TO THE PEOPLE OF THE NATION AS A WHOLE, NOT TO STATES, FOR THE
FRAMERS CREATED A LINK, A DIRECT LINK BETWEEN THE NATIONAL GOVERNMENT
AND THE PEOPLE OF THE UNITED STATES, AND THAT IS WHY THE COURT HELD IN
THAT CASE IT WAS NOT OPEN TO THE STATES TO ADD ANY QUALIFICATIONS FOR
OFFICE OTHER THAN THOSE SET FORTH IN THE CONSTITUTION ITSELF.
IN OTHER WORDS, THE CONSTITUTIONAL PHRASE "THE PEOPLE OF THE
SEVERAL STATES," WHICH DEFINES THOSE WHO SELECT THE MEMBERS OF THE
HOUSE OF REPRESENTATIVES, REALLY MEANS ALL OF THE PEOPLE OF THE UNITED
STATES.
I'D LIKE TO TURN NOW TO THAT ARTICLE, ARTICLE 1, SECTION 2,
BECAUSE SO MUCH ATTENTION IN THE BRIEFS HAS BEEN GIVEN TO IT AND TO THE
QUESTION WHETHER THE CONSTITUTION FORECLOSES THE CLAIM WE MAKE TODAY BY
ITS OWN TEXT OR BY THE COMPOSITION OF THE CONGRESS THAT IT CREATED. WE
THINK THE ANSWER TO THAT QUESTION TODAY IN 1999 IS A RESOUNDING NO.
THE DEFENDANTS IN THEIR PAPERS FOCUS ON THE WORD
"STATES" AND SAY THAT BECAUSE THE DISTRICT OF COLUMBIA IS NOT
A STATE WITHIN THE ORIGINAL MEANING OF THAT TERM THE CASE IS OVER. ITS
CITIZENS HAVE NO RIGHTS BECAUSE THEY DO NOT RESIDE IN A STATE.
BUT THE CONSTITUTIONAL TERM IS "THE PEOPLE OF THE SEVERAL
STATES." THERE IS NO EVIDENCE THAT THE FRAMERS OF THE CONSTITUTION
MEANT THAT TERM "THE PEOPLE OF THE SEVERAL STATES" TO INCLUDE
FEWER THAN ALL THE PEOPLE WHO MADE UP THE ORIGINAL THIRTEEN STATES.
JUDGE OBERDORFER: COULDN'T THAT TERM HAVE ALSO MEANT, "PEOPLE
OF THE SEVERAL STATES," INCLUDING AT THE TIME THAT THE CONSTITUTION
WAS ADOPTED THE PEOPLE OF THE DISTRICT OF COLUMBIA WHO HAD BEEN
RESIDENTS OF MARYLAND?
MR. MILLER: AT THE TIME THE CONSTITUTION WAS ADOPTED, YOUR HONOR,
THE DISTRICT OF COLUMBIA -- THE DISTRICT, TO BECOME THE NATIONAL
CAPITAL, THOUGH REFERRED TO IN THE CONSTITUTION -- DID NOT EXIST. AND SO
AT THAT TIME AND FOR SEVERAL YEARS THEREAFTER IT COULD NOT HAVE BEEN
KNOWN WHICH CITIZENS OF THE ORIGINAL THIRTEEN COLONIES AND THEN THIRTEEN
STATES WOULD MAKE UP THE CITIZENRY OF THE DISTRICT TO BE ESTABLISHED.
IN FACT, THERE WAS CONSIDERABLE DEBATE OVER WHERE THE CAPITAL
SHOULD BE. IF ODDS MAKERS HAD BEEN THEN LAYING ODDS, NO DOUBT THE CITY
OF PHILADELPHIA WOULD HAVE BEEN THE FAVORITE. IT WAS THE LARGEST CITY.
IT WAS THE SITE OF OUR GOVERNMENT FOR MANY YEARS BEFORE THAT AND IT WAS
REASONABLY CENTRALLY LOCATED. MANY PEOPLE THOUGHT THE CAPITAL WOULD BE
LOCATED IN PHILADELPHIA.
I MENTION PHILADELPHIA BECAUSE IN THE FEDERALIST PAPERS DESCRIBING
THE CONSTITUTION THAT THE FRAMERS ADOPTED -- I THINK IT WAS NUMBER 73, I
CAN'T REALLY REMEMBER -- MADISON WROTE, IN DESCRIBING THE COMPOSITION OF
THE CONGRESS, THAT THE CITY OF PHILADELPHIA ALONE WOULD MERIT ALMOST TWO
MEMBERS OF THE PENNSYLVANIA DELEGATION WHICH WAS ESTABLISHED AT EIGHT IN
THE ORIGINAL CONSTITUTION.
I FIND IT HARD TO BELIEVE THAT IF PHILADELPHIA HAD BEEN SELECTED
AS THE NATIONAL CAPITAL THAT PENNSYLVANIA WOULD WILLINGLY HAVE ACCEDED
TO THE NOTION THAT ITS CONGRESSIONAL DELEGATION WOULD THEN BE REDUCED BY
TWO MEMBERS BY REASON OF THAT FACT ALONE; OR THAT CITIZENS OF
PHILADELPHIA, OUR LARGEST CITY, WOULD THEN HAVE WILLINGLY ACCEPTED THE
NOTION THAT BY BECOMING THE CAPITAL OF THE NATION THE RIGHT TO SELECT
MEMBERS OF CONGRESS WOULD BE TAKEN AWAY OR LOST.
I'M SORRY FOR THE LONG-WINDED ANSWER TO THAT QUESTION, JUDGE
OBERDORFER.
JUDGE OBERDORFER: BUT THERE WERE PEOPLE RESIDING WITHIN THESE
SQUARE -- TEN-MILE SQUARE, WERE THERE NOT?
MR. MILLER: YES, THERE WERE. THERE WERE PEOPLE WHO LIVED HERE IN
GEORGETOWN, SOME IN ALEXANDRIA, WHICH MADE PART OF THE ORIGINAL TEN-MILE
SQUARE, AND SOME OTHERS IN THE AREA THAT BECAME THEN CALLED THE CITY OF
WASHINGTON.
THEY WERE CITIZENS OF MARYLAND AND VIRGINIA AND THEY CONTINUED TO
VOTE AFTER THE CONSTITUTION WAS ADOPTED BEFORE AND AFTER THE CESSION OF
THE TEN-MILE SQUARE. IN FACT, ONE OF THEIR MEMBERS BECAME A MEMBER OF
CONGRESS FROM MARYLAND RESIDING IN THE AREA THAT WAS THE DISTRICT OF
COLUMBIA.
THEY HAD THAT FRANCHISE AND THEY EXERCISED THAT FRANCHISE UNTIL
1801 WHEN THE STATES' GOVERNMENT ASSUMED FULL JURISDICTION OVER THE
DISTRICT OF COLUMBIA AND THE MARYLAND AND VIRGINIA JURISDICTION CEASED.
NOT ONLY IS THERE NOTHING IN THE TEXT OF THE CONSTITUTION THAT
SAYS THAT CITIZENS OF THE NATIONAL CAPITAL WILL NOT BE ENTITLED TO
PARTICIPATE IN THE SELECTION OF THE CONGRESS OF THE UNITED STATES,
THERE'S NOTHING AT ALL IN THE SUPPORTING HISTORY THAT SUGGESTS THAT
RESULT.
IT DOES SEEM CLEAR THAT NO PROVISION WAS MADE IN THE ORIGINAL
DOCUMENTS FOR THE MANNER IN WHICH THAT WOULD BE EXERCISED, AND IT MAY
HAVE PRESENTED DIFFICULTIES TO THE FRAMERS AT THAT TIME.
BUT PART OF THE GENIUS OF OUR SYSTEM AND OF OUR CONSTITUTION IS
THAT THE FRAMERS KNEW WHEN TO BE SPECIFIC AND WHEN NOT TO BE, AND THEY
CREATED A DOCUMENT THAT WAS TO BE FLEXIBLE ENOUGH TO PERMIT
INTERPRETATION TO SUIT THE NEEDS OF OUR NATION AS IT DEVELOPED, AND WE
THINK THAT THAT CERTAINLY APPLIES IN THIS SITUATION.
JUDGE OBERDORFER: MR. MILLER, WE'RE NOT GOING TO CUT YOU OFF, IF
YOU FINISH YOUR STATEMENT IN A PROMPT WAY.
MR. MILLER: THANK YOU, YOUR HONOR. I APPRECIATE THAT.
I WANTED MOSTLY AT THIS POINT IN THE ARGUMENT TO RESPOND TO THE
COURT'S CONCERNS. WE HAVE BRIEFED THIS CASE AT GREAT LENGTH. I APOLOGIZE
IN A SENSE FOR THE LENGTH OF THE BRIEFS, BUT THE IMPORTANCE OF THE CASE
AND THE SIGNIFICANCE OF THE HISTORICAL PRECEDENT AND THE DEVELOPMENT IN
THE LAW SEEMED TO US TO WARRANT IT.
WE HAVE SET FORTH IN OUR PAPERS A DEVELOPMENT OF PRECEDENT UNDER
THE FOURTEENTH AMENDMENT, UNDER THE FIFTEENTH AMENDMENT.
WE HAVE LAID OUT, PROBABLY AT GREATER LENGTH THAN THE COURT WISHED
TO SEE, HOW THE RIGHT TO VOTE HAS EVOLVED FROM THE EARLIEST DAYS OF OUR
REPUBLIC WHEN IT WAS CONFINED TO A RELATIVELY SMALL PROPORTION OF THE
POPULATION, ESSENTIALLY TO WHITE MALES OF PROPERTY, TO TODAY WHERE IT IS
UNTHINKABLE THAT ANY CITIZEN AGED 18 OR ABOVE, SAVE FOR FELONS WHO HAVE,
BY THEIR OWN CONDUCT, FORFEITED THEIR RIGHT TO VOTE, OTHERWISE
UNTHINKABLE THAT ANY SUCH CITIZEN WOULD BE DENIED THE RIGHT, NOT ONLY TO
VOTE, BUT TO HAVE AS MUCH AS POSSIBLE AN EQUAL VOTE, AN EQUAL SAY IN THE
SELECTION OF MEMBERS OF THE GOVERNMENT THAT GOVERNS THEM.
JUDGE GARLAND: CAN I ASK YOU A QUESTION ABOUT THAT?
IT WOULD CLEARLY VIOLATE EQUAL PROTECTION IF IT WERE PERMITTED
THAT THE RESIDENTS OF CALIFORNIA COULD VOTE IN THE STATE LEGISLATURE OF
MISSOURI; ISN'T THAT RIGHT? BECAUSE THEY ARE NOT RESIDENTS OF THIS
STATE, NOT AFFECTED BY THE LAWS OF THIS STATE.
IT WOULD NOT BE TRUE EQUAL PROTECTION FOR A MISSOURI RESIDENT TO
BE ABLE TO VOTE IF IT WERE ALSO THE CASE THAT THEY WERE VASTLY
OUTNUMBERED BY RESIDENTS OF CALIFORNIA; ISN'T THAT RIGHT?
MR. MILLER: IT SOUNDS RIGHT, YOUR HONOR.
JUDGE GARLAND: IT'S NOT A TRICK. THE ANSWER IS IT'S RIGHT.
AND SO MY QUESTION IS WITH RESPECT TO THE DISTRICT WE APPLY EQUAL
PROTECTION. HOW IS IT ENOUGH, UNDER YOUR THEORY -- NOW, THIS IS THE
DIFFERENCE BETWEEN YOUR THEORY AND THE ADAMS PLAINTIFFS -- HOW IS IT
ENOUGH FOR THE DISTRICT OF COLUMBIA'S RESIDENTS TO ONLY HAVE TWO
SENATORS AND, SAY, ONE, MAYBE TWO REPRESENTATIVES, WHEN THE PEOPLE OF
CALIFORNIA ARE VOTING AND THE PEOPLE OF MISSOURI ARE VOTING ESSENTIALLY
FOR LAWS THAT GOVERN THE DISTRICT OF COLUMBIA?
ISN'T THE IMPLICATION OF THE EQUAL PROTECTION ARGUMENT, IF IT WERE
ADOPTED, THAT, YOU KNOW, JUST TWO SENATORS AND ONE OR TWO
REPRESENTATIVES IS REALLY SYMBOLIC? IT'S NOT IN ANY WAY PROPORTIONATE.
IT'S NOT IN ANY WAY ONE PERSON, ONE VOTE. SO IS THAT THE IMPLICATION OF
THE ARGUMENT IN THE END?
MR. MILLER: I DON'T THINK SO, FOR THIS REASON.
I REALIZE THAT THE CONGRESS HAS TWO ASPECTS IN RELATION TO THE
DISTRICT OF COLUMBIA. IN RELATION TO THE DISTRICT AS PART OF THE NATION,
WHEN THE CONGRESS PASSES LAWS FOR THE NATION AT LARGE, THE
REPRESENTATION OF THE DISTRICT, IF IT WERE TO BE THROUGH TWO SENATORS
AND A MEMBER OF CONGRESS, OF THE HOUSE WOULD, I THINK, MEET THE EQUAL
PROTECTION TEST IN THE SAME WAY THAT THE STATE OF VERMONT, WHICH HAS
APPROXIMATELY THE SAME NUMBER OF CITIZENS, WOULD HAVE THE SAME VOTING
REPRESENTATION IN THE CONGRESS.
CONGRESS ALSO HAS ANOTHER ROLE VIS-A-VIS THE DISTRICT THAT'S
UNIQUE AND THAT IS IT IS THE SUPREME LEGISLATURE FOR THE DISTRICT. AND
THE POINT YOUR HONOR MAKES ABOUT THE IMPACT OF CITIZENS OF OTHER STATES
PARTICIPATING IN DETERMINATIONS BY THE CONGRESS THAT AFFECT THE DISTRICT
UNIQUELY AND FAR OUTWEIGHING THE DISTRICT'S VOTING POWER LOOKED AT BY
ITSELF DOES RAISE A QUESTION AS TO WHETHER THAT REALLY IS EQUAL
REPRESENTATION IN THE SENSE THAT CITIZENS OF MISSOURI CAN HAVE
REPRESENTATION IN THEIR STATE LEGISLATURES OR THE CITIZENS OF CALIFORNIA
IN THEIRS.
WE RECOGNIZE THAT ANOMALY. THAT ANOMALY I THINK IS INEVITABLE
GIVEN THE EXPRESS PROVISION OF THE CONSTITUTION THAT CONFERS EXCLUSIVE
JURISDICTION OVER THE DISTRICT OF COLUMBIA IN THE CONGRESS. THAT'S A
TEXTUALLY-COMMITTED PROPOSITION, AND WE DON'T QUARREL WITH WHAT THE
FOUNDERS DID THERE. THEY DID IT. THEY KNEW WHAT THEY WERE DOING. THEY
MEANT TO DO IT. AND IT HAS BEEN REMAINED UNCHANGED FOR ALL THESE YEARS.
THAT MAY OR MAY NOT DEVIATE FROM SOME IDEAL OF HOW A GOVERNMENT
SHOULD BE ESTABLISHED, BUT WE RECOGNIZE THAT OUR CASE ULTIMATELY IS
GROUNDED NOT ENTIRELY IN POLITICAL PRINCIPLES BUT IN THE CONSTITUTION OF
THE UNITED STATES.
BUT I ALSO WANT TO ADD -- I'M SORRY, YOUR HONOR -- THAT HAVING TWO
SENATORS OR THE RIGHT TO VOTE FOR TWO SENATORS AND A MEMBER OR AS MANY
MEMBERS OF THE HOUSE AS OUR POPULATION WILL DICTATE IS BY NO MEANS AN
ANOMALY.
THE WAY THE CONGRESS WORKS, WE THINK HAVING THAT REPRESENTATION IS
CRITICAL TO THE INTERESTS OF THE DISTRICT OF COLUMBIA CITIZENS BEING
REPRESENTED IN CONGRESS, FOR IT IS HAVING THE REPRESENTATIVES, HAVING
THE PEOPLE WHO DO HAVE VOTES, WHO CAN TRADE, WHO CAN BARTER AND ARGUE,
WHO CAN EXERCISE THE RULES OF EACH HOUSE ON BEHALF OF THE PEOPLE THEY
CHOOSE TO REPRESENT, THOSE ARE THE CRITICAL THINGS THAT WOULD GIVE
DISTRICT CITIZENS EFFECTIVE REPRESENTATION IN OUR CONGRESS AND WHICH
THEY DO NOT HAVE TODAY.
JUDGE GARLAND: I JUST WANT TO BE SURE I UNDERSTAND THE
DISTINCTION, THEN, BETWEEN THE ARGUMENT YOU'RE MAKING ON BEHALF OF YOUR
CLIENTS AND THE ARGUMENT THAT'S BEING MADE IN THE OTHER MATTER.
I TAKE IT, THEN, THAT YOU ARE PREPARED TO SAY THAT THE DISTRICT
CLAUSE, AT LEAST WITH RESPECT TO LOCAL LEGISLATION, IS A SPECIFIC
TEXTUAL COMMITMENT THAT AT LEAST REQUIRES US TO READ THE EQUAL
PROTECTION CLAUSE IN A MORE LIMITED WAY THAN WOULD OTHERWISE EXIST IF IT
WERE NO DISTRICT CLAUSE WHILE -- OF COURSE, I'LL ASK THE PLAINTIFFS FOR
THE OTHER AS WELL -- THEIR ARGUMENT IS MORE BROAD RANGING; THAT EQUAL
PROTECTION APPLIES ACROSS-THE-BOARD. IS THAT RIGHT?
MR. MILLER: YES. I'LL LET MR. LAROCHE ANSWER FOR HIS POSITION, BUT
THERE IS THAT IMPORTANT DIFFERENCE IN OUR TWO CASES.
JUDGE GARLAND: I HAVE ANOTHER QUESTION ABOUT THE TEXTUAL
COMMITMENT QUESTION.
THE TEXT FROM WHICH YOU'RE READING, WHICH IS THAT THE PEOPLE OF
THE SEVERAL STATES, WHICH IS WHAT YOU'RE RELYING ON, THAT APPLIES TO THE
REPRESENTATION OF THE HOUSE OF REPRESENTATIVES.
MR. MILLER: YES.
JUDGE GARLAND: NOW, THE CLAUSE WITH RESPECT TO THE SENATE, WHICH
IS ARTICLE 1, SECTION 3, DOESN'T INCLUDE THOSE WORDS.
MR. MILLER: WELL, AS ORIGINALLY DRAFTED IT HAD NOTHING EVEN CLOSE
TO IT. YOU HAVE TO LOOK, AS YOU ARE ABOUT TO, I'M SURE --
JUDGE GARLAND: SO WE WILL HAVE TO DO THIS IN TWO PARTS.
LET'S FIRST TALK ABOUT BEFORE THE SEVENTEENTH AMENDMENT WAS
ADOPTED AND THEN WE WILL TALK ABOUT AFTER. THE SEVENTEENTH AMENDMENT
WASN'T ADOPTED UNTIL 1913.
WITH RESPECT TO THE ORIGINAL INTENTION, THEN, BEFORE THE
SEVENTEENTH AMENDMENT, THE CLAUSE SAYS, "THE SENATE OF THE UNITED
STATES SHALL BE COMPOSED OF TWO SENATORS FROM EACH STATE CHOSEN BY THE
LEGISLATURE THEREOF."
UNTIL 1913, WHAT IS YOUR VIEW AS TO WHETHER THE DISTRICT OF
COLUMBIA, ON THE SAME THEORIES THAT YOU PRESENTED HERE, INCLUDING EQUAL
PROTECTION, IT EXIST, THE PROCESS, THE PUBLIC GUARANTEE CLAUSE, WHETHER
OR NOT THE DISTRICT OF COLUMBIA WOULD HAVE BEEN ENTITLED TO SENATORS?
MR. MILLER: WELL, WHAT WE THINK IS -- AND I'LL TAKE BACK TO THE
ORIGINAL TIME, WHICH IS PRE-FOURTEENTH AMENDMENT AND PRE-EQUAL
PROTECTION CLAUSE.
WE THINK THERE -- AND I REALIZE THIS IS SOMEWHAT HYPOTHETICAL --
BUT WE THINK THERE THAT THE DISTRICT COULD HAVE BEEN REPRESENTED IN THE
SENATE IN THE SAME WAY THAT PEOPLE IN THE THIRTEEN STATES OR ANY NUMBER
OF ADDITIONAL STATES WERE AT THAT TIME. NONE OF THOSE PEOPLE IN THE
DISTRICT OR ELSEWHERE HAD A RIGHT TO VOTE FOR MEMBERS OF THE SENATE.
THEY ONLY HAD THE RIGHT TO SELECT THEIR LEGISLATURES.
AND IT WOULD HAVE BEEN POSSIBLE AT THAT TIME FOR THOSE
LEGISLATURES TO HAVE GIVEN REPRESENTATIVES OF THE DISTRICT OF COLUMBIA,
MARYLAND PORTION OR THE VIRGINIA PORTION, AS THE CASE MAY BE, BUT THE
PEOPLE OF THOSE AREAS AN OPPORTUNITY TO PARTICIPATE IN THE SELECTION BY
THE LEGISLATURE, EITHER BY IN A FORMAL WAY THROUGH SOME REFERENDUM OR
INFORMAL WAY THROUGH CONSULTATION WITH COMMISSIONS, DELEGATIONS OR SO
FORTH.
WE HAVEN'T TRIED TO ELABORATE ALL THE DETAILS OF HOW SUCH A
CONSULTATIVE PROCESS MIGHT WORK BECAUSE IT'S OBVIOUSLY IRRELEVANT AND
HYPOTHETICAL TODAY. BUT THAT'S A PRE-SEVENTEENTH AMENDMENT.
JUDGE GARLAND: BUT YOU DON'T MAKE AN ARGUMENT, THEN, THAT THERE
WAS A LEGISLATURE IN THE DISTRICT OF COLUMBIA THAT WOULD HAVE APPOINTED
THE TWO SENATORS; INSTEAD, IT WOULD HAVE BEEN APPOINTED THROUGH MARYLAND
OR VIRGINIA?
MR. MILLER: YOU ASKED THE QUESTION HOW COULD THE DISTRICT'S
REPRESENTATION IN THE SENATE HAVE BEEN ACCOMPLISHED AT THAT TIME AND
THAT IS A WAY.
WE DON'T MAKE THE ARGUMENT TODAY TO YOU THAT TODAY THE DISTRICT OF
COLUMBIA NECESSARILY IS ENTITLED TO ELECT TWO SENATORS FROM THIS AREA.
JUDGE GARLAND: I UNDERSTAND, AND I'M GOING TO GET TO THAT
QUESTION, TOO, BUT I NEED TO BREAK THEM IN LITTLE PIECES.
WITH RESPECT, THEN, TO PRIOR TO THE FOURTEENTH AMENDMENT AND PRIOR
TO THE DIRECT ELECTION OF SENATORS, THE ONLY WAY WOULD HAVE BEEN THROUGH
THE MARYLAND AND VIRGINIA LEGISLATURE; IS THAT RIGHT?
MR. MILLER: WELL, THAT'S THE WAY WE HAVE CONCEIVED OF IT. PROBABLY
THAT IS THE WAY.
JUDGE GARLAND: WAS IT REQUIRED? THAT IS, IS THE ORIGINAL
CONSTITUTIONAL CONTEMPLATION THAT THE VIRGINIA AND MARYLAND LEGISLATURE
MUST HAVE ALLOWED THE VOTING FOR SENATORS IN THAT WAY?
MR. MILLER: IT'S A DIFFICULT QUESTION TO ANSWER FOR THIS REASON --
JUDGE GARLAND: IT'S HARD FOR ME, TOO.
MR. MILLER: PARDON?
JUDGE GARLAND: IT'S HARD FOR ME, TOO. THAT'S WHY I'M ASKING.
MR. MILLER: WE RELY VERY HEAVILY ON THE DEVELOPMENT OF LAW
BEGINNING ROUGHLY AFTER THE CIVIL WAR, BUT PARTICULARLY IN THE 20TH
CENTURY, TO DEMONSTRATE THE IMPORTANCE OF THE PEOPLE'S VOICE IN THE
SELECTION OF THE MEMBERS OF CONGRESS.
THE QUESTION YOU'VE ASKED APPLIES PRIMARILY TO A PERIOD OF HISTORY
BEFORE THOSE CASES WERE DECIDED AND BEFORE THAT CONCEPT OF THE PEOPLE'S
ROLE IN THE SELECTION OF THE CONGRESS WAS FULLY DEVELOPED. SO THAT'S WHY
IT'S HARD FOR ME TO ANSWER.
I'M ANSWERING WITH A POST-1913 MIND-SET ON WHAT THE RIGHTS OF THE
CITIZENS ARE TO A PRE-1913 CIRCUMSTANCE.
JUDGE GARLAND: YOU'RE NOT ARGUING THAT THERE WAS ANY ORIGINAL
CONTEMPLATION THAT IT WAS REQUIRED THAT MARYLAND AND VIRGINIA PERMIT
VOTING BY MEMBERS OF THE PEOPLE OF DISTRICT OF COLUMBIA FOR SENATOR?
MR. MILLER: OR, FOR THAT MATTER, PEOPLE IN MARYLAND AND VIRGINIA.
NOBODY HAD A RIGHT TO VOTE FOR THE SENATE, AND THEN PEOPLE IN MARYLAND
WHO VOTED TO SELECT MARYLAND SENATORS IN 1792 AND FOUR AND SIX AND SO ON
WERE SELECTED WITHOUT ANY VOTING BY ANYBODY IN MARYLAND.
JUDGE OBERDORFER: GO AHEAD.
JUDGE GARLAND: ONE LAST QUESTION WHICH GOES TO THE MARYLAND
RESIDUAL -- WELL, LET ME JUST FOLLOW UP ON THIS ONE.
MR. MILLER: I WAS HOPING YOU WERE GOING TO ASK ME ABOUT POST --
JUDGE GARLAND: I AM. THANK YOU FOR REMINDING ME.
IS THERE SOMETHING SPECIAL ABOUT THE SEVENTEENTH AMENDMENT THAT
CHANGES THE RULE OR IS IT THE FOURTEENTH AMENDMENT AND THE DEVELOPMENT
OF THE ONE MAN, ONE VOTE, ET CETERA, THEORIES THAT CHANGED THE RULE?
MR. MILLER: WELL, THE SEVENTEENTH AMENDMENT IS A CRITICAL PIECE OF
THE MOSAIC THAT WE NOW LOOK TO AS THE SOURCE OF WHAT WE CALL THE VIRTUAL
UNIVERSAL FRANCHISE, THE SELECTION OF THE MEMBERS OF THE UNITED STATES
CONGRESS.
BEFORE THAT, IT WAS A SEMINAL ACTION TO MAKE THOSE SENATORS
ELECTABLE BY THE PEOPLE RATHER THAN BY STATE LEGISLATURES. IT WAS A
MAJOR STEP FORWARD.
AND WHAT WE SAY THERE IS THAT THE PHRASES ARE THAT THE SENATORS
SHALL BE ELECTED BY -- I THINK THE WORD FROM THE STATES, "BY THE
PEOPLE THEREOF" OR "BY THE PEOPLE OF THE STATES."
JUDGE GARLAND: THAT'S RIGHT, ELECTED BY THE PEOPLE THEREOF.
MR. MILLER: BY THE PEOPLE THEREOF.
JUDGE GARLAND: SO THAT DOESN'T HAVE THE LANGUAGE, "THE PEOPLE
OF THE SEVERAL STATES."
MR. MILLER: IT'S NOT PRECISELY THE SAME LANGUAGE, BUT WE BELIEVE
IT TENDED TO EMBODY THE SAME CONCEPT BECAUSE THAT WAS THE MODEL, THE
SENATE. THE 1913 AMENDMENT WAS INTENDED TO MAKE THE SENATE, LIKE THE
HOUSE, SELECTABLE BY THE PEOPLE RATHER THAN BY SOME OTHER METHOD.
JUDGE GARLAND: JUST TO FOLLOW THE LANGUAGE.
WHAT IT SAYS IS, "THE SENATE OF THE UNITED STATES SHALL BE
COMPOSED OF TWO SENATORS FROM EACH STATE ELECTED BY THE PEOPLE
THEREOF."
MR. MILLER: CORRECT.
JUDGE GARLAND: I UNDERSTAND ONE OF YOUR ARGUMENTS IS THAT THEY ARE
STILL THE PEOPLE THEREOF OF MARYLAND, AND SO LET'S HOLD THAT ARGUMENT
FOR A MOMENT.
BUT THE OTHER ARGUMENT THAT YOU MAKE IS THAT THEY ARE NOT JUST
PEOPLE OF MARYLAND. HOW DOES THE SECOND ARGUMENT FIT WITHIN THIS
LANGUAGE? EVEN IN A FLEXIBLE VIEW OF THE LANGUAGE, HOW DOES IT FIT? I
UNDERSTAND HOW THE FIRST DOES.
MR. MILLER: FOR THE SECOND VIEW, WHICH IS THE VIEW THAT THE
DISTRICT OF COLUMBIA IS ENTITLED TO SENATORS ELECTED BY THE PEOPLE OF
THIS JURISDICTION ALONE, WE THINK THERE IS A COMBINATION REALLY OF THREE
THINGS.
WE START WITH THE LANGUAGE OF THE SEVENTEENTH AMENDMENT THAT THE
SENATORS ARE TO BE ELECTED BY THE PEOPLE.
WE ADD TO IT THE RIGHT OF NATIONAL CITIZENSHIP THAT I DISCUSSED
EARLIER THAT ALL CITIZENS HAVE, INCLUDING CITIZENS IN THE DISTRICT, TO
PARTICIPATE IN THE SELECTION OF SENATORS.
AND WE PUT THE THIRD PIECE OF IT, BROAD POWER OF CONGRESS UNDER
THE DISTRICT CLAUSE TO EXERCISE EXCLUSIVE JURISDICTION OVER THE DISTRICT
OF COLUMBIA.
AND THE COMBINATION OF THOSE THREE SETS OF POWERS WE SUBMIT IS
SUFFICIENT AUTHORITY TO PERMIT THE CONGRESS, SHOULD IT CONCLUDE TO DO
SO, OR PERHAPS THIS COURT, SHOULD IT BE CALLED UPON TO ORDER, TO
DETERMINE THAT THE MEANS FOR VINDICATION OF THE RIGHTS OF THE CITIZENS
OF THE DISTRICT TO PARTICIPATE IN THE SELECTION OF SENATORS IS THROUGH
THE ESTABLISHMENT OF SEATS IN THE SENATE FOR THOSE PEOPLE.
I ALSO HASTEN TO ADD THAT WE ARE NOT AT THIS STAGE IN OUR CASE
ASKING THE COURT TO DECIDE THE MANNER IN WHICH THIS RIGHT CAN BE
VINDICATED. THAT IS TO SAY, WHETHER IT SHOULD BE MARYLAND, THROUGH
SENATORS OF OUR OWN OR THROUGH SOME COMBINATION.
JUDGE GARLAND: BUT YOU WOULD AGREE THAT FOR YOU TO HAVE STANDING
WE AT LEAST IN THE END HAVE TO HAVE THE POWER TO VINDICATE YOUR RIGHT;
OTHERWISE, YOUR RIGHT IS NOT REDRESSABLE IN THE COURT. YOU AGREE WITH
THAT?
MR. MILLER: ABSOLUTELY.
JUDGE GARLAND: NOW, LET ME ASK YOU ABOUT THE MARYLAND ISSUE, THEN,
HAVING TALKED ABOUT THE DISTRICT ISSUE.
ONE OF THE WAYS BY WHICH YOU COULD VINDICATE YOUR RIGHTS, I TAKE
IT, IS TO VOTE IN MARYLAND. ISN'T THAT RIGHT?
MR. MILLER: CORRECT.
JUDGE GARLAND: MARYLAND IS NOT BEFORE THIS COURT; IS THAT RIGHT?
MR. MILLER: (NODDING.)
JUDGE GARLAND: ONE, IS IT FAIR?
AND SECOND, EVEN IF IT WERE FAIR, HOW WOULD WE HAVE THE AUTHORITY
TO REQUIRE MARYLAND TO GO ALONG WITH THE DECISION OF THIS COURT IF THEY
ARE NOT BEFORE US?
AND, THEREFORE, HOW WOULD WE GET OVER THE QUESTION OF WHETHER THE
RESIDUAL CITIZENSHIP IN THE MARYLAND CORNER OF YOUR THEORY IS
REDRESSABLE AND THEREFORE YOU HAVE STANDING FOR IT?
MR. MILLER: WELL, THERE IS A TWO-PART ANSWER TO THAT.
PART ONE. OUR CASE IS BROUGHT TO DETERMINE RIGHTS OF DISTRICT OF
COLUMBIA CITIZENS, AND THOSE RIGHTS UNDER THE CONSTITUTION ARE PROPERLY
VINDICATED AGAINST THE FEDERAL OFFICIALS THAT WE HAVE SUED FOR THE
REASONS THAT WE HAVE ELABORATED IN OUR BRIEFS.
THE SECOND POINT, AND PERHAPS MORE TO THE POINT OF YOUR HONOR'S
QUESTION. WHEN THE SUPREME COURT DECIDED IN EVANS VS CORNMAN THAT THE
RESIDENTS OF ENCLAVES HAD THE RIGHT TO VOTE IN MARYLAND THE COURT DIDN'T
STOP TO ASK MARYLAND, "DO YOU AGREE WITH THIS?" OF COURSE, IN
THAT CASE MARYLAND WAS A PARTY TO THE CASE.
JUDGE GARLAND: THE PROBLEM IS MARYLAND WAS THE PARTY --
MR. MILLER: IN THAT CASE.
JUDGE GARLAND: RIGHT, AND THEY ARE NOT A PARTY HERE.
MR. MILLER: THE CONGRESS ENACTED THE OVERSEAS VOTING ACT. THEY
DIDN'T SAY THE PEOPLE WHO USED TO LIVE IN THE STATES CAN VOTE IN THE
STATE ONLY IF THE STATE OF MARYLAND AGREES WITH US WHEN THEY ENACTED
THAT STATUTE.
JUDGE GARLAND: NO, THERE'S A SUPREMACY CLAUSE. IN OTHER WORDS,
LET'S SAY WE AGREE WITH YOU -- LET'S SAY WE DISAGREE WITH YOU THAT THE
RIGHT ARISES OUT OF THE RIGHTS OF NATIONAL CITIZENSHIP, BUT AGREE WITH
YOU THAT THE RIGHTS ARISE OUT OF RESIDUAL CITIZENSHIP IN MARYLAND, AND
WE SO DECLARE.
MR. MILLER: I THINK YOU CAN.
JUDGE GARLAND: HOLD ON. JUST BEAR WITH ME.
WE DECLARE THAT. MARYLAND SAYS, "WELL, THAT'S VERY NICE, BUT
WE'RE NOT LETTING ANYBODY FROM THE DISTRICT OF COLUMBIA VOTE IN OUR
--".
YOU KNOW, YOU SHOW UP. YOU WANT TO VOTE IN MONTGOMERY COUNTY, AND
THEY SAY, "WELL, WHERE IS YOUR MONTGOMERY COUNTY RESIDENT'S
CERTIFICATE?" YOU DON'T HAVE ONE, AND THEY SAY "NO." WHAT
DO WE DO THEN?
MR. MILLER: WELL, IT SEEMS TO ME THAT SITUATION IS NOT ALTOGETHER
DIFFERENT FROM WHAT WAS BEFORE THE SUPREME COURT IN THE FRANKLIN CASE,
FOR EXAMPLE, THE CENSUS CASE, WHERE THE ARGUMENT WAS MADE THAT HOW CAN
WE ENJOIN -- OR HOW CAN WE ORDER THE SECRETARY OF COMMERCE TO DO
SOMETHING WHEN THE PRESIDENT MIGHT NOT GO ALONG WITH IT OR THE CONGRESS
MIGHT NOT GO ALONG WITH IT?
THERE, THE COURT SAID, WE'RE NOT GOING TO PRESUME THAT OTHER
PARTIES -- IN THAT CASE THE PRESIDENT OR THE CONGRESS -- WOULD IGNORE
THIS COURT'S DETERMINATION OF WHAT THE CONSTITUTION MEANS AND INDIVIDUAL
CONSTITUTIONAL RIGHTS. BUT WE THINK THE SAME THING IS --
JUDGE GARLAND: BUT THE PRESIDENT WAS THE PARTY IN THAT CASE. THE
UNITED STATES WAS A PARTY.
MR. MILLER: CORRECT.
JUDGE GARLAND: AND I'LL ASK SOME QUESTIONS, OBVIOUSLY, OF THE
GOVERNMENT'S SIDE WITH RESPECT TO FRANKLIN, BUT I UNDERSTAND YOUR POINT
WITH RESPECT TO -- THAT'S WHY I'M NOT ASKING ANY STANDING QUESTIONS WITH
RESPECT TO THE D.C. HALF OF YOUR THEORY. I'M ONLY ASKING ABOUT THE
MARYLAND HALF OF YOUR THEORY.
MR. MILLER: RIGHT. I UNDERSTOOD THAT.
JUDGE GARLAND: AND WITH RESPECT TO THAT, MARYLAND WOULD NOT HAVE
TO OBEY US. I TAKE IT YOU DON'T THINK THIS THREE-JUDGE COURT HAS SOME
RESIDUAL AUTHORITY ON MARYLAND.
MR. MILLER: NO, NO, NOT WITHOUT MARYLAND COMING BEFORE YOU. BUT I
DO THINK THIS.
IN SEEKING TO VINDICATE RIGHTS, I DON'T THINK IT'S NECESSARY FOR
US, AS PLAINTIFFS, TO HAVE TO IMAGINE ALL OF THE POSSIBLE OTHER PARTIES
THAT MIGHT ACT.
JUDGE GARLAND: I'M ONLY ASKING TO IMAGINE ONE. LET'S TAKE
MARYLAND. YOU CAN IMAGINE -- YOU KNOW, SAY YOU WANT TO RUN FOR
REPRESENTATIVE FROM MONTGOMERY COUNTY AND CONNIE MORRELLO MIGHT HAVE A
DIFFERENT IDEA ABOUT THAT AND SHE MAY OPPOSE YOUR ABILITY TO DO THAT,
BUT SHE HASN'T HAD A CHANCE TO BE IN THIS -- I'M NOT PICKING ON HER FOR
ANY PARTICULAR -- MAYBE SHE WOULD BE HAPPY TO HAVE YOU RUN AGAINST HER.
MR. MILLER: SHE'S NOT IN ANY DANGER FROM ME ANYWAY.
JUDGE GARLAND: SHE HASN'T HAD A CHANCE TO ARGUE HER ARGUMENT
BEFORE US. SHE HASN'T HAD A CHANCE TO ARGUE THAT YOU'RE NOT A CITIZEN OF
MARYLAND.
IS IT FAIR FOR US TO, IF WE CAN'T BIND THEM -- IT'S NOT FAIR FOR
US TO BIND THEM WITHOUT THEM HAVING A CHANCE TO ARGUE, AND IF WE CAN'T
BIND THEM, DON'T WE RUN UP AGAINST CASES LIKE ASARCO WHERE THE SUPREME
COURT SAID THAT IF THE REDRESSABILITY OR VINDICATION OF YOUR RIGHT
DEPENDS ON A PARTY NOT BEFORE THE COURT, YOU DON'T HAVE STANDING --
AGAIN, ONLY WITH RESPECT TO THIS THEORY. THAT'S ALL I'M ASKING. HELP ME
THROUGH THAT.
MR. MILLER: I DON'T THINK IT STANDS FOR THAT BROAD A PROPOSITION.
IF WE HAVE A VALID CLAIM AGAINST THE DEFENDANTS, THE DEFENDANTS
ARE DOING SOMETHING THAT'S INTERFERING WITH OUR RIGHTS, WE CAN, AS WE
HAVE, ASK THE COURT TO TAKE STEPS TO STOP THAT. THAT IS A VALID EXERCISE
OF THE COURT'S AUTHORITY.
EVEN THOUGH IT MAY BE POSSIBLE THAT SOME OTHER THIRD PARTY NOT
BEFORE THE COURT, IN THIS CASE MARYLAND OR SOME OFFICIAL OF MARYLAND,
MIGHT NOT AGREE AND MIGHT AT SOME LATER TIME TAKE STEPS TO TRY TO STOP
THE EXERCISE OF THAT RIGHT, IN THE END OUR RECOURSE IN THAT CASE IS TO
SUE OFFICIALS IN MARYLAND IF THEY ARE ACTING IN A MANNER THAT WE BELIEVE
IS CONTRARY TO OUR CONSTITUTIONAL RIGHTS, PARTICULARLY AS THEY HAVE BEEN
DETERMINED BY THE COURT.
JUDGE GARLAND: THE DISTRICT COURT IN MARYLAND, THEN, WOULDN'T BE
BOUND BY ANYTHING WE SAID, WOULD IT?
MR. MILLER: WELL, IT WOULD BE BOUND BY THE SUPREME COURT OF THE
UNITED STATES. IT WOULDN'T NECESSARILY BE BOUND BY A COURT OF EQUAL
JURISDICTION, BUT A COURT OF THIS DISTINCTION AND OPINION ON THE LAW
WOULD BE IMMENSELY PERSUASIVE.
JUDGE GARLAND: THAT'S VERY KIND OF YOU TO SAY.
JUDGE OBERDORFER: COUNSEL, ARE YOU FAMILIAR WITH THE STATUTE THAT
PERMITS INTERVENTION OF A STATE ON CERTIFICATION FROM THIS COURT WHERE
THE STATE'S STATUTE IS IN QUESTION ON A CONSTITUTIONAL LEVEL?
MR. MILLER: WHERE A STATE STATUTE IS CHALLENGED, YES.
JUDGE OBERDORFER: THERE IS SUCH A STATUTE THAT AUTHORIZES US TO
CERTIFY IT TO THE ATTORNEY GENERAL OF THE STATE THAT HIS STATE'S LAW IS
IN JEOPARDY AND INVITES HIM TO RESPOND.
MR. MILLER: AND I MIGHT ADD, I DON'T WANT TO SAY ANYTHING TO GOAD
ANYBODY HERE, BUT THIS LAWSUIT IS NOT UNKNOWN TO THE PRESS AND PUBLIC.
IT'S INTERESTING THAT NO ONE FROM MARYLAND HAS YET EXPRESSED ANY DESIRE
TO PARTICIPATE.
JUDGE GARLAND: MAYBE THEIR VIEW IS THEY KNOW THEY WON'T BE BOUND
BY ANYTHING WE SAY.
MR. MILLER: THAT'S POSSIBLE.
JUDGE GARLAND: BETTER TO LAY LOW.
MR. MILLER: WELL, THEY MAY KNOW THAT. BUT THEY WOULD LOOK AT THIS
COURT AND THEY WOULD BE IMPRUDENT TO BELIEVE THAT A DECISION OF THIS
COURT WOULDN'T HAVE SIGNIFICANT BEARING ON THE OUTCOME OF THAT CASE.
JUDGE OBERDORFER: DO YOU HAVE ANYTHING FURTHER AT THIS POINT?
MR. MILLER: I'LL STOP AT THIS POINT, YOUR HONOR. THANK YOU VERY
MUCH.
JUDGE OBERDORFER: MR. LAROCHE.
MR. LAROCHE: I WOULD LIKE TO SET ASIDE TWELVE MINUTES FOR REBUTTAL
AND JUST USE TEN MINUTES NOW.
MAY IT PLEASE THE COURT, I'M GEORGE LAROCHE AND I HAVE THE
PLEASURE OF BEING HERE TODAY TO REPRESENT 20 CITIZENS OF THE DISTRICT OF
COLUMBIA, WHO ARE HERE, AND I HOPE THAT I ALSO SPEAK FOR THE INTERESTS
OF ALL OF THE CITIZENS OF THE DISTRICT OF COLUMBIA AND FOR THE CITIZENS
OF THE UNITED STATES BECAUSE ADAMS VS CLINTON IS ABOUT THE UNITED STATES
AND THE DISTRICT OF COLUMBIA'S PLACE WITHIN IT.
THE CLAIMS IN ADAMS VS CLINTON COME DOWN TO A PLEA THAT CONGRESS
CAN NO LONGER SEGREGATE THE DISTRICT OF COLUMBIA FROM THE REST OF THE
UNITED STATES.
FOR 200 YEARS THIS HAS BEEN DEFENDED AND EXPLAINED ON THE
PROPOSITION THAT THE DISTRICT OF COLUMBIA IS UNIQUE; THAT THE DISTRICT
CLAUSE GIVES CONGRESS SOME POWER HERE TO SEGREGATE WHICH IT DOESN'T HAVE
TO -- OR IS NOT ALLOWED TO EXERCISE ELSEWHERE. WE HAVE SHOWN THE COURT
THAT'S NOT THE CASE.
CERTAINLY WE ARE ALL FAMILIAR WITH THE FORMER PORTION OF THE
DISTRICT OF COLUMBIA ON THE OTHER SIDE OF THE POTOMAC RIVER. THAT ONCE
WAS UNDER THE SAME POWER. IT NOW IS A FULLY INCORPORATED PART OF A
STATE.
WE'VE ALSO REFERRED TO FEDERAL ENCLAVES. NOW, THIS IS A CONCEPT
THAT A LOT OF PEOPLE ARE NOT VERY FAMILIAR WITH. WE KNOW WHERE NIH IS,
AND IT'S A RELATIVELY SMALL PLACE, AND WE CAN THINK: WELL, WHAT'S THE
COMPARISON BETWEEN NIH AND THE DISTRICT OF COLUMBIA?
BUT TODAY I'VE PRESENTED THE COURT WITH TWO MAPS PUBLISHED BY THE
UNITED STATES GEOLOGICAL SURVEY, WHICH ILLUSTRATE -- I BELIEVE I
PRESENTED THEM TO THE CLERK OF THE COURT EARLIER.
THE DEPUTY CLERK: YOU ALL HAVE SETS OF THEM.
JUDGE OBERDORFER: WHAT DO YOU WANT?
THE DEPUTY CLERK: HE'S REFERRING TO THIS EXHIBIT.
JUDGE OBERDORFER: YOU GO RIGHT AHEAD, MR. LAROCHE.
MR. LAROCHE: THESE MAPS HAVE JUST BEEN MADE AVAILABLE TO THE
PUBLIC. THESE MAPS SHOW ALL LAND OWNED AND ADMINISTERED BY THE UNITED
STATES GOVERNMENT. WE'RE TALKING ABOUT APPROXIMATELY ONE-THIRD OF THE
UNITED STATES.
FIFTY YEARS AGO THE UNITED STATES OWNED A LITTLE BIT LESS LAND
THAN THEY OWN NOW BECAUSE THEY PURCHASED SOME LAND THAT THEY SIMPLY OWN
AS A PROPRIETOR NOW. THEY HAVE SOLD OTHER LAND, BUT I UNDERSTAND THAT
THEY OWNED A LITTLE BIT LESS IN THE PAST.
BUT 50 YEARS AGO PEOPLE WHO LIVED WITHIN THOSE ENCLAVES WERE AS
SEGREGATED FROM THE STATES IN WHICH THOSE ENCLAVES WERE LOCATED AS THE
DISTRICT OF COLUMBIA IS SEPARATED FROM THE REST OF THE UNITED STATES.
YET OVER THE YEARS CONGRESS HAS TAKEN STEPS TO GIVE THE STATES
POWERS OVER THE ENCLAVES WHICH HAVE RESULTED IN THE FACT THAT NOW THE
CITIZENS WHO LIVE THERE ARE TREATED AS FULL CITIZENS OF THE STATES. THEY
ARE DEPRIVED OF NO POLITICAL RIGHTS WHATSOEVER.
AND EVEN MORE EXPANSIVELY. CONSIDER THE FACT THAT THE UNITED
STATES BEGAN AS THIRTEEN SOVEREIGN STATES ON THE ATLANTIC SEABOARD.
THREE MORE STATES WERE CUT OUT OF THOSE STATES BY THE CONSENT OF THOSE
STATES, AND TEXAS JOINED THE COUNTRY AS A REPUBLIC, BUT THE REST OF THE
UNITED STATES ONCE WAS WHAT WE CALL TERRITORY, WHICH IS SIMPLY AN
EQUIVALENT FOR THE LEGAL CONCEPT OF A COLONY.
CONGRESS HAS THE SAME POWER OVER TERRITORIES AS IT HAS OVER THE
DISTRICT OF COLUMBIA, AND YET FROM THOSE THIRTEEN COLONIES CONGRESS HAS
SYSTEMATICALLY AND PERVASIVELY EXTENDED THE POWERS OF REPUBLICAN
GOVERNMENT TO THE PEOPLE OF THOSE TERRITORIES GRANTING THEM THE RIGHTS
AND RESPONSIBILITIES, PRIVILEGES AND IMMUNITIES OF STATEHOOD AND STATE
CITIZENSHIP TO THE PEOPLE WHO LIVE THERE SO THAT THEY ARE PART OF THIS
COUNTRY.
NOW THIS COUNTRY EXTENDS FROM THE ATLANTIC TO BEYOND THE PACIFIC,
INTO THE MIDDLE OF THE PACIFIC, AND ONE PLACE IS LEFT OUT: THE DISTRICT
OF COLUMBIA.
WHEN YOU LOOK AT THE MAP YOU WILL SEE IN FLORIDA, IN THE PANHANDLE
OF FLORIDA, A PLACE CALLED EGLIN AIR FORCE BASE. EGLIN AIR FORCE BASE IS
A FEDERAL ENCLAVE. YOU CAN FIT TEN DISTRICTS OF COLUMBIA INSIDE EGLIN
AIR FORCE BASE.
AT THE HEIGHT OF THE VIETNAM WAR CLOSE TO 150,000 PEOPLE LIVED IN
EGLIN AIR FORCE BASE, AND BECAUSE THAT WAS BEFORE EVANS VS CORNMAN THEY
WERE NOT CITIZENS OF THE STATE OF FLORIDA. THEY HAD NO RIGHT TO VOTE FOR
ANYONE.
NOW THE PEOPLE WHO LIVE THERE, IF THEY CHOOSE, CAN BE CITIZENS OF
FLORIDA. UNDER A FEDERAL STATUTE THEY CAN KEEP THEIR HOME STATE
CITIZENSHIP, BUT THEY ARE CITIZENS OF STATES ONE WAY OR THE OTHER.
NOW, THE FEDERAL GOVERNMENT CLEARLY HAS AN INTEREST IN EGLIN AIR
FORCE BASE. THEY DO VERY, VERY CRITICAL TESTING OF WEAPONRY THERE. THE
FEDERAL GOVERNMENT HAS AN INTEREST IN NIH. THEY TEST FOR DISEASES THERE
THAT THREATEN THE ENTIRE COUNTRY. BUT WHAT INTERESTS DOES THE FEDERAL
GOVERNMENT HAVE IN THE CHURCH OF ANITA O'BRYAN, WHICH IS LOCATED SIX
BLOCKS FROM THE CAPITOL? WHAT INTERESTS DOES THE FEDERAL GOVERNMENT HAVE
IN THE LIVING ROOM OF LAURIE MURRAY?
ONE OF THE PLAINTIFFS, REHANE JENKINS, LIVES ON SOUTHERN AVENUE.
HE CAN THROW A HAT ACROSS THE STREET INTO MARYLAND WHERE PEOPLE HAVE
FULL RIGHTS OF CITIZENSHIP. IF YOU WERE NOT FAMILIAR WITH THE
NEIGHBORHOOD AND YOU WERE STANDING ON THIS STREET AND DIDN'T KNOW WHERE
YOU WERE AND SOMEBODY SAID, "THE DISTRICT OF COLUMBIA IS ON ONE
SIDE OF YOU AND MARYLAND IS ON THE OTHER," YOU COULDN'T TELL WHICH
SIDE WOULD BE WHICH.
THE FEDERAL GOVERNMENT HAS NO INTERESTS IN SAYING REHANE JENKINS
HAS NO RIGHTS OF CITIZENSHIP, BUT THE PEOPLE WHO LIVE 30 YARDS AWAY CAN
VOTE FOR MEMBERS OF CONGRESS, CAN VOTE FOR GOVERNOR OF MARYLAND, CAN RUN
FOR CONGRESS, AND CAN RUN FOR STATE GOVERNMENT. REHANE JENKINS CAN RUN
ACROSS THE STREET TO MARYLAND BUT HE CANNOT RUN FOR CONGRESS.
OUR CASE PRESENTS THE CHALLENGE THAT CONGRESS CAN NO LONGER
MAINTAIN THIS STATUS QUO. THE CONGRESS MUST WITHDRAW ITS HANDS FROM THE
DISTRICT OF COLUMBIA, TO FREE THE DISTRICT OF COLUMBIA TO GO WITHER IT
MAY.
NOW, BY MY READING OF THE CONSTITUTION THERE ARE TWO ALTERNATIVES.
THE DISTRICT OF COLUMBIA COULD BECOME A STATE OR IT COULD BECOME PART OF
A STATE. EITHER OF THOSE WOULD REMOVE THE PROBLEMS THAT ARE PRESENTED IN
ADAMS VS CLINTON.
THOSE ARE BOTH DRAMATICALLY, PERVASIVELY, THOROUGHLY FUNDAMENTALLY
POLITICAL QUESTIONS. IT IS FOR THE CITIZENS OF THE DISTRICT OF COLUMBIA
TO DECIDE WHICH OF THOSE ALTERNATIVES THEY CHOOSE.
BUT THIS COURT CAN DECIDE ONE MUCH MORE CRITICAL AND INITIAL
THING. CAN THE STATUS QUO BE MAINTAINED? WE HAVE SHOWN THE COURT IN
UNCONTROVERTED EVIDENCE THAT THERE IS ABSOLUTELY NO REASON WHATSOEVER,
MUCH LESS A COMPELLING GOVERNMENTAL REASON, FOR CONGRESS TO MAINTAIN THE
STATUS QUO. IT MUST BE RESTRAINED AND ITS INSTRUMENTS WHICH RESTRAIN IT
MUST BE REMOVED FROM THE DISTRICT.
IF THE COURT HAS ANY QUESTIONS I WOULD LOVE TO ANSWER THEM.
JUDGE OBERDORFER: YOU GO RIGHT AHEAD. IF YOU'VE FINISHED, THAT
WOULD BE FINE, TOO.
JUDGE GARLAND: I HAVE ONE QUESTION.
UNDER THE REMEDY THAT YOU SEEK, DURING THE TIME IN WHICH THE
CITIZENS OF THE DISTRICT OF COLUMBIA ARE DECIDING WHETHER THEY WANT
STATEHOOD ON THEIR OWN OR STATEHOOD AS PART OF MARYLAND, WHAT LAW
GOVERNS IN THE DISTRICT?
MR. LAROCHE: THE EXISTING LAW, YOUR HONOR. IT'S PRETTY MUCH
STANDARD PRACTICE IN INTERNATIONAL LAW WHERE STATES TRANSITION FROM ONE
SOVEREIGN TO ANOTHER OR FROM ONE STATUS TO ANOTHER, THAT WHATEVER
TECHNICAL CODE IS IN PLACE AT THE TIME OF THE WITHDRAWAL OF SOVEREIGNTY
FROM ONE ENTITY TO BEFORE IT'S ASSUMED BY ANOTHER, THAT THAT CODE OF LAW
IS DEEMED TO REMAIN IN PLACE.
THIS PRINCIPLE IS REFLECTED IN THE HISTORY OF THE DISTRICT OF
COLUMBIA. IN THE ACTS OF CESSION FROM THE STATES IT WAS ASSUMED THAT THE
LAWS OF THOSE STATES WOULD CONTINUE. THE SAME WAS ASSUMED --
JUDGE OBERDORFER: IT WAS STATED IN THE ACT?
MR. LAROCHE: IT WAS STATED IN THE ACT, YES, YOUR HONOR.
CONGRESS AFFIRMATIVELY ACCEPTED UNDER THOSE TERMS, AND WHEN
CONGRESS MOVED TO THE DISTRICT CONGRESS SPECIFIED THE CODE WOULD
CONTINUE. THAT WAY THEY DIDN'T HAVE TO SIT DOWN AND REINVENT EVERY
LITTLE WHEEL IN THE LAW. SUCH WHEELS AS THERE WERE STAYED IN PLACE SO
THAT THINGS COULD MOVE FORWARD ON THEM.
JUDGE GARLAND: WHICH LEGISLATURE WOULD REMAIN IN AUTHORITY DURING
THE INTERIM PERIOD?
MR. LAROCHE: I WOULD ASSUME THAT THE CURRENT HOME RULE GOVERNMENT
COULD REMAIN IN PLACE TO CARRY ON THE BUSINESS OF THE DISTRICT UNTIL
SUCH TIME AS THE CITIZENS OF THE DISTRICT DECIDED WHETHER THEY WANTED
THAT TO BE THE TECHNICAL FORM OF THEIR LOCAL GOVERNMENT AND WHAT THEY
WANTED TO DO IN TERMS OF INCORPORATING THEMSELVES INTO THE UNITED
STATES.
JUDGE GARLAND: WOULD CONGRESS RETAIN ITS AUTHORITY OVER THE HOME
RULE GOVERNMENT OR NOT?
MR. LAROCHE: NO, YOUR HONOR. WE'RE ASKING THIS COURT TO RESTRAIN
CONGRESS FROM EXERCISING THAT AUTHORITY.
THE ONLY AUTHORITY THAT CONGRESS WOULD MAINTAIN THAT IS NOT AT
ISSUE IN OUR SUIT IS THE SAME AUTHORITY CONGRESS HAS OVER THE ENTIRE
REST OF THE UNITED STATES. THE SUPREMACY CLAUSE WOULD STILL REIGN.
GENERAL POWERS OF THE FEDERAL GOVERNMENT THAT APPLY IN WISCONSIN,
IOWA, AND CALIFORNIA WOULD APPLY HERE BECAUSE THIS IS PART OF THE UNITED
STATES. WE ARE NOT SEEKING INDEPENDENCE FROM THE UNITED STATES.
JUDGE GARLAND: THAT MIGHT BE BEYOND OUR AUTHORITY.
MR. LAROCHE: YES, I HOPE IT IS. WE LIKE IT HERE.
JUDGE OBERDORFER: THANK YOU, MR. LAROCHE. THANK YOU, SIR.
MR. LAROCHE: THANK YOU.
MR. TYLER: GOOD MORNING, YOUR HONORS.
MAY IT PLEASE THE COURT, MY NAME IS JOHN TYLER. I'M AN ATTORNEY
WITH THE DEPARTMENT OF JUSTICE AND APPEAR HERE ON BEHALF OF THE
EXECUTIVE BRANCH DEFENDANTS, THE PRESIDENT OF THE UNITED STATES, AND
SECRETARY OF COMMERCE.
CO-COUNSEL ON DEFENDANTS' SIDE HAVE GRACIOUSLY ALLOWED ME UP TO 20
MINUTES WITHIN WHICH TO ADDRESS THE COURT, AND IN THAT TIME I INTEND
PRINCIPALLY TO SPEAK TO THE MERITS OF PLAINTIFFS' ARGUMENTS AND I CAN AS
WELL RESPOND TO ANY QUESTIONS THIS COURT MIGHT HAVE REGARDING THE
EXECUTIVE BRANCH'S STANDING ARGUMENTS.
FOLLOWING ME WILL BE COUNSEL ON BEHALF OF THE HOUSE AND THE SENATE
RESPECTFULLY. THEY'VE RESERVED 10 MINUTES PER PERSON TO ADDRESS
PRINCIPALLY JURISDICTIONAL ISSUES. AND THEN COUNSEL ON BEHALF OF THE
D.C. CONTROL BOARD WILL CONCLUDE WITH FIVE MINUTES, AGAIN TO ADDRESS
PRINCIPALLY ISSUES OF JURISDICTIONAL ISSUES.
SPEAKING TO THE MERITS OF PLAINTIFFS' ARGUMENTS. THIS QUESTION
REGARDING HOW IT MIGHT BE POSSIBLE TO GRANT DISTRICT RESIDENTS THE RIGHT
AND THE OPPORTUNITY TO BE REPRESENTED IN CONGRESS IS, IN FACT, NOT NEW.
THE JUSTICE DEPARTMENT ITSELF HAS ADDRESSED THIS QUESTION WITHIN
THE CONTEXT OF LEGISLATIVE PROCEEDINGS ON SEVERAL OCCASIONS OVER THE
LAST SEVERAL DECADES IN THE KENNEDY AND JOHNSON ADMINISTRATIONS AND
SUBSEQUENTLY IN THE CARTER AND REAGAN ADMINISTRATIONS AS WELL, AND EACH
TIME THE JUSTICE DEPARTMENT HAS COME TO THE CONCLUSION THAT BECAUSE --
JUDGE GARLAND: I TAKE IT THAT YOU'RE NOT ARGUING THAT THE JUSTICE
DEPARTMENT IS A PRECEDENT THAT HAS AUTHORITY OVER US.
MR. TYLER: NO, I'M NOT, YOUR HONOR, BUT I DO WANT TO MAKE THIS
POINT, THAT WE HAVE ADDRESSED THIS ISSUE BEFORE. CONSISTENTLY WE HAVE
COME TO THE CONCLUSION THAT THE CONSTITUTION LEAVES US NO CHOICE; THAT
THE CONSTITUTION ITSELF RESERVES REPRESENTATION IN CONGRESS TO THE
PEOPLE OF THE SEVERAL STATES.
JUDGE GARLAND: WHAT'S THE SIGNIFICANCE OF THE FACT THAT THE
JUSTICE DEPARTMENT KEEPS COMING TO THAT CONCLUSION? I MEAN, I ASSUME
THAT THE RESIDENTS OF THE DISTRICT OF COLUMBIA KEEP COMING TO THE
OPPOSITE CONCLUSION.
MR. TYLER: WELL --
JUDGE GARLAND: IT'S GOT TO BE THE WEIGHT OF YOUR ARGUMENT, NOT THE
FACT THAT YOU'VE MADE IT BEFORE.
MR. TYLER: WE HAVE COME TO THIS CONCLUSION, YOUR HONOR, BASED UPON
THE PROVISIONS OF THE CONSTITUTION THAT GOVERN THE COMPOSITION OF
CONGRESS, SPECIFICALLY ARTICLE 1, SECTION 2 AND 3, AS AMENDED BY THE
FOURTEENTH AND SEVENTEENTH AMENDMENT. AND WE BEGIN --
JUDGE OBERDORFER: YOU'RE OFFERING THIS AS AN EXPERT OPINION?
MR. TYLER: I'M SORRY, YOUR HONOR?
JUDGE OBERDORFER: YOU'RE OFFERING THIS AS AN EXPERT OPINION?
MR. TYLER: WE ARE OFFERING THIS AS WHAT WE BELIEVE TO BE AN
UNAVOIDABLE CONCLUSION, YOUR HONOR, PURSUANT TO THE PLAIN TERMS OF THOSE
PROVISIONS.
WE BEGIN OUR ANALYSIS, ALTHOUGH WE DO NOT REST OUR ANALYSIS, ON
THE FACT THAT ARTICLE 1, SECTION 2, FOR EXAMPLE, PROVIDES THAT HOUSE
MEMBERS SHALL BE CHOSEN EVERY SECOND YEAR BY THE PEOPLE OF THE SEVERAL
STATES.
ARTICLE 1 GOES ON TO PROVIDE THAT REPRESENTATIVES SHALL BE
APPORTIONED AMONG THE SEVERAL STATES TO ANY STATE THAT MAY BE ADMITTED
WITHIN THIS UNION.
THE DISTRICT OF COLUMBIA HAS NEVER BEEN ADMITTED WITHIN THIS UNION
AS A SOVEREIGN STATE, BUT IS INSTEAD DEFINED UNDER OUR CONSTITUTION, THE
SO-CALLED DISTRICT CLAUSE, AS JUST THAT, A DISTRICT THAT IS SEPARATE AND
APART FROM THE SEVERAL STATES.
ALSO, TOO, WE POINT TO THOSE PROVISIONS IN ARTICLE 1 THAT PROVIDE
FOR THE STATES THEMSELVES TO PARTICIPATE IN AND HAVE ACTUAL AUTHORITY
OVER CONGRESSIONAL ELECTIONS.
JUDGE OBERDORFER: HAVEN'T THERE BEEN SOME OCCASIONS WHERE THE
COURTS HAVE RECOGNIZED -- HAVE TREATED THE DISTRICT AS A STATE?
MR. TYLER: THEY HAVE, YOUR HONOR.
JUDGE OBERDORFER: AS, FOR EXAMPLE, IN CONNECTION WITH THE FULL
FAITH AND CREDIT CLAUSE.
MR. TYLER: THAT IS TRUE, YOUR HONOR. AND THOSE PROVISIONS, AS THE
SUPREME COURT IN THE DISTRICT OF COLUMBIA VS CARTER SAYS, MUST BE JUDGED
BY THEIR OWN AIM AND CHARACTER SUCH AS THE PROVISIONS THAT WE BELIEVE
CONTROL THIS CASE UNDER ARTICLE 1, THOSE PROVISIONS THAT GOVERN THE
COMPOSITION OF CONGRESS MUST BE JUDGED BY THEIR OWN AIM AND CHARACTER
PURSUANT TO THEIR OWN HISTORICAL SETTING IN ORDER FOR THIS COURT TO
DETERMINE THE INTENT OF THE FRAMERS.
JUDGE OBERDORFER: IN YOUR JUSTICE DEPARTMENT ANALYSIS HAVE YOU
INQUIRED INTO THE ULTIMATE ORIGINAL RATIONALE GROWING OUT OF INCIDENTS
IN PHILADELPHIA FOR THE CREATION OF AN ENCLAVE HERE?
MR. TYLER: I THINK THAT THE SCHOLARS ARE UNIFORM IN BELIEVING THAT
THE INTENT OF THE FRAMERS UNDER THE DISTRICT CLAUSE TO CREATE THIS AS A
SEPARATE DISTRICT APART FROM THE STATE WAS PRINCIPALLY THEIR CONCERN;
THAT IF THEY WERE SUBJECT TO THE AUTHORITY OF THE STATE --
"THEY" BEING THE FEDERAL GOVERNMENT -- THEY WOULD HAVE NO
POWER TO DEFEND THE FEDERAL GOVERNMENT, AS SUCH.
JUDGE OBERDORFER: AND THERE WAS A QUESTION OF WHETHER THE STATE
MIGHT IN THAT PARTICULAR ASPECT INTERFERE WITH A FUNCTION OF THE FEDERAL
GOVERNMENT.
MR. TYLER: THAT IS CORRECT, YOUR HONOR.
JUDGE OBERDORFER: AND IT WAS DECIDED THAT THE FULL FAITH AND
CREDIT CLAUSE, THE APPLICATION OF THAT DIDN'T INTERFERE WITH THE
FUNCTION OF THE FEDERAL GOVERNMENT IN THE DISTRICT OF COLUMBIA.
MR. TYLER: THAT IS CORRECT.
JUDGE OBERDORFER: CAN YOU SPEAK TO THE QUESTION OF WHETHER THIS
PROPOSAL WOULD INTERFERE WITH THE FUNCTION OF THE FEDERAL GOVERNMENT IN
THE DISTRICT OF COLUMBIA?
MR. TYLER: NOT IN A PRACTICAL EFFECT, YOUR HONOR. AGAIN, WE GO
BACK TO ARTICLE 1, AS AMENDED, TO DETERMINE THE INTENT OF THE FRAMERS.
IS IT POSSIBLE TO INTERPRET THESE PROVISIONS TO COME TO THE
CONCLUSION THAT THE FRAMERS INTENDED THAT THE DISTRICT OF COLUMBIA--
JUDGE OBERDORFER: SO YOU REST ON THE LANGUAGE, NOT THE
CIRCUMSTANCES? YOU MENTIONED EARLIER THE HISTORICAL BACKGROUND.
MR. TYLER: WELL, YOU CAN LOOK, OF COURSE, TO THE CIRCUMSTANCE AS
WELL. AS THE SUPREME COURT PERHAPS MOST RECENTLY REMINDED US IN U.S.
TERM LIMITS VS THORNTON, THE MEN WHO CAME TO THE PHILADELPHIA
CONSTITUTIONAL CONVENTION IN 1787 REPRESENTED WHAT WERE THEN INDEPENDENT
SOVEREIGN STATES, STATES WHERE THEY WERE VERY JEALOUS OF THAT
SOVEREIGNTY, AND YET AT THE SAME TIME ALSO, TOO, AMBITIOUS POSSIBLY TO
PERFORM A MORE PERFECT UNION, AND FOR THAT PURPOSE THEY WERE ABLE TO
COME TO VARIOUS COMPROMISES, SOME GREAT, SOME NOT SO GREAT, TO FORM THE
FEDERAL GOVERNMENT.
THE SUPREME COURT HAS REFERRED TO THIS AS A PARTICULARLY SENSITIVE
BALANCE THAT WAS MADE, AND PURSUANT TO THAT BALANCE WHAT THE FRAMERS DID
WAS PERMIT THE STATES THEMSELVES, BY THEIR LEGISLATURES, TO PARTICIPATE
IN FEDERAL ELECTIONS AND HAVE AUTHORITY OVER SUCH ELECTIONS.
FOR EXAMPLE, IT IS INCUMBENT UPON THE STATES TO SET FORTH THE
ELECTORAL QUALIFICATIONS OF ITS CITIZENS TO PARTICIPATE IN CONGRESSIONAL
ELECTIONS. SO, TOO, THE STATES ARE OBLIGATED BY THEIR LEGISLATURES AND
THEIR GOVERNORS TO FILL ANY VACANCIES THAT MIGHT ARISE EITHER IN THE
HOUSE OR IN THE SENATE.
IT IS THE STATES WHO ARE OBLIGATED UNDER OUR CONSTITUTION TO
REGULATE THE TIME, PLACE AND MANNER OF FEDERAL ELECTIONS, AND PERHAPS
MOST DRAMATICALLY, PRIOR TO THE ADOPTION OF THE SEVENTEENTH AMENDMENT IN
1913, IT WAS THE STATES BY THEIR LEGISLATURE WHICH HAD THE OBLIGATION
AND DUTY TO APPOINT TWO SENATORS.
THIS IS NOT POSSIBLE FOR PURPOSES OF THE DISTRICT OF COLUMBIA. IT
DOES NOT HAVE A STATE GOVERNMENT. THE FRAMERS DID NOT THINK OF THE
DISTRICT AS A SOVEREIGN STATE AS SUCH.
AND, FOR THAT REASON, WE COME TO THE CONCLUSION THAT IT IS
PURSUANT TO THESE PROVISIONS UNAVOIDABLE TO COME TO THE CONCLUSION THAT
THE ONLY CONCLUSION APPROPRIATE IS TO DETERMINE THAT THE FRAMERS DID NOT
INTEND TO INCLUDE THE DISTRICT WITHIN THOSE PROVISIONS.
WE POINT, TOO, TO THE TWENTY-THIRD AMENDMENT, WHICH WAS ADOPTED IN
1963, FOR PURPOSES OF ALLOWING DISTRICT RESIDENTS TO HAVE A VOTE IN THE
PRESIDENTIAL ELECTIONS AS IF IT WERE A STATE, AND THAT TELLS US THAT IT
WAS BOTH THE UNDERSTANDING AND INTENT OF CONGRESS AND THE RATIFYING
STATES THAT FOR OTHER PURPOSES, FOR OTHER -- FOR THE CONGRESSIONAL
ELECTIONS, THAT THE DISTRICT IS NOT A STATE. AND WE BELIEVE THAT THIS
COURT OWES DEFERENCE TO THAT UNDERSTANDING, INTENT.
AND, FINALLY, WE POINT TO THE SUPREME COURT'S DECISION, PER CHIEF
JUSTICE MARSHALL IN THE CASE HEPBURN AND DUNDAS DECIDED IN 1805 IN WHICH
THE CHIEF JUSTICE CAME TO THE CONCLUSION QUITE QUICKLY THAT THE DISTRICT
OF COLUMBIA IS NOT A STATE UNDER THE PROVISIONS OF THE CONSTITUTION THAT
GOVERN THE COMPOSITION OF CONGRESS.
AND IT IS ALL THOSE AUTHORITIES, MOST ESPECIALLY THE LANGUAGE OF
THE CONSTITUTION ITSELF, THAT WE BELIEVE DETERMINE THIS CASE AND REQUIRE
THAT PLAINTIFFS' CLAIMS BE DISMISSED.
NOW, AS A RESULT OF THAT, WE BELIEVE THAT THEIR FIFTH AMENDMENT
CLAIMS FAIL IMMEDIATELY. THERE IS NO CONFLICT BETWEEN THE PROVISIONS
THAT GOVERN THE COMPOSITION OF CONGRESS AND THE FIFTH AMENDMENT.
WHILE THE FIFTH AMENDMENT MOST CERTAINLY PROTECTS RIGHTS WHERE
THEY EXIST, MOST ESPECIALLY FUNDAMENTAL RIGHTS, THE FIFTH AMENDMENT
ITSELF DOES NOT GRANT ANYONE THE RIGHT TO VOTE IN CONGRESSIONAL
ELECTIONS.
AND, IN EFFECT, BECAUSE THE CONSTITUTION ITSELF DENIES THE
DISTRICT RESIDENTS THE RIGHT TO PARTICIPATE IN CONGRESS OR BE
REPRESENTED IN CONGRESS, PLAINTIFFS CANNOT COMPLAIN UNDER ANY THEORY
UNDER THE FIFTH AMENDMENT THAT THEIR CONSTITUTIONAL RIGHTS ARE BEING
VIOLATED.
YOUR HONOR, VERY BRIEFLY, I CAN ADDRESS AS WELL THE ALEXANDER
PLAINTIFFS' ARGUMENT THAT THEY HAVE A RIGHT TO VOTE IN MARYLAND'S
ELECTION --
JUDGE OBERDORFER: PLEASE DO.
MR. TYLER: -- RESIDUAL CITIZENSHIP THEORY.
WE POINT, OF COURSE, TO THE FACT THAT AS WE UNDERSTAND IT
MARYLAND'S OWN CONSTITUTION AND APPLICABLE LAWS PROHIBIT THIS.
JUDGE GARLAND: SO DID THEY IN EVANS FORBID VOTING BY THE RESIDENTS
OF NIH. SO EVANS IS REALLY THE KEY HERE WITH RESPECT TO THIS ARGUMENT.
AND COULD YOU EXPLAIN WHY, GIVEN THAT THE DISTRICT CLAUSE AND THE
ENCLAVE CLAUSE ARE THE SAME CLAUSE, CONGRESS HAS GIVEN LIKE AUTHORITY
WITH RESPECT TO BOTH -- "LIKE," I ASSUME, CLEARLY MEANT
"THE SAME" -- HOW IS IT THAT THE CITIZENS OF THE ENCLAVE OF
NIH WERE REGARDED IN EVANS AS CITIZENS OF MARYLAND WHILE THAT SAME COULD
NOT BE CONCLUDED WITH RESPECT TO THE DISTRICT OF COLUMBIA?
MR. TYLER: WELL, THE SUPREME COURT IN EVANS REJECTED WHAT IT HAD
PREVIOUSLY CALLED THIS FICTION OF A STATE EXISTING WITHIN A STATE AND
CONFIRMED THE FACT THAT THE RESIDENTS OF NIH WERE RESIDENTS OF THE STATE
OF MARYLAND. THE FOURTEENTH AMENDMENT SEEMS TO PROVIDE AS MUCH AS WELL.
YOU ARE A RESIDENT OF THE STATE IN WHICH YOU RESIDE OR A CITIZEN
OF THE STATE IN WHICH YOU RESIDE.
JUDGE GARLAND: WAIT A MINUTE. THAT'S JUST DEFINING WORDS ANY WAY
THAT YOU WANT TO DEFINE THE WORDS. THAT'S THE CONCLUSION. THE CONCLUSION
IS THEY ARE CITIZENS OF THE STATE OF MARYLAND. THAT'S NOT THE ARGUMENT.
WHAT IS IT THAT MADE THE CITIZENS OF NIH CITIZENS OF MARYLAND?
MR. TYLER: WELL, THEY EXISTED AND LIVED WITHIN THAT STATE AS
OPPOSED TO THE DISTRICT OF COLUMBIA.
JUDGE GARLAND: AGAIN, THAT'S THE CONCLUSION, NOT THE ARGUMENT.
THEY ONLY EXIST WITHIN THAT STATE IF THEY ARE WITHIN THAT STATE.
MR. TYLER: WHAT THE SUPREME COURT RECOGNIZED AS INHABITANTS OF
THAT STATE, EVEN THOUGH LIVING ON A FEDERAL ENCLAVE, THEY ARE STILL
RESIDENTS OF THAT STATE.
JUDGE GARLAND: BUT AGAIN, THAT SOUNDS LIKE THE CONCLUSION AND NOT
THE ARGUMENT.
MR. TYLER: IT'S THE CONCLUSION THE SUPREME COURT CAME TO.
JUDGE GARLAND: I REALIZE THAT, AND THAT'S WHY THE QUESTION IS: WHY
ISN'T THE SAME TRUE FOR THE DISTRICT OF COLUMBIA? THAT IS, WHAT THEY
SAID WAS: THEY ARE NOT RESIDENTS OF MARYLAND ONLY IF THE NIH GROUNDS
CEASE TO BE PART OF MARYLAND WHEN THE ENCLAVE WAS CREATED, AND THE COURT
REJECTS THAT.
IF YOU JUST SUBSTITUTE THE WORDS "DISTRICT OF COLUMBIA"
THERE, THE QUESTION IS WHY IS IT -- YOU MUST HAVE AN ARGUMENT AS TO WHY
IT'S DIFFERENT.
WHY IS IT THAT THE DISTRICT OF COLUMBIA CEASED TO BE A PART OF
MARYLAND WHEN THE ENCLAVE WAS CREATED WHILE NIH DID NOT?
MR. TYLER: UNDER THE DISTRICT CLAUSE, AS HAS BEEN HELD BY THE
SUPREME COURT --
JUDGE GARLAND: OKAY. BUT THE DISTRICT CLAUSE -- THAT'S FINE, BUT
THE WORDS ARE THE SAME. THAT IS, IT'S THE SAME CLAUSE.
THE DISTRICT CLAUSE SAYS: THE CONGRESS HAS THE POWER TO EXERCISE
EXCLUSIVE LEGISLATION IN ALL CASES WHATSOEVER OVER SUCH DISTRICT -- DOT,
DOT, DOT -- AND TO EXERCISE LIKE AUTHORITY OVER ALL PLACES PURCHASED BY
CONSENT OF THE LEGISLATURE. "LIKE AUTHORITY."
SO WHAT DO YOU DRAW FROM THE DISTRICT CLAUSE THAT DISTINGUISHES IT
FROM THE ENCLAVES?
MR. TYLER: THE SUPREME COURT HAS DRAWN FROM THE DISTRICT COURT,
ACCORDING TO THE REILLY DECISION, THE ALBAUGH DECISION, THAT AS OF THE
ORGANIC ACT OF 1801 RESIDENTS WITHIN THE TEN-SQUARE MILE AREA CEASED TO
BE RESIDENTS OF THE STATE OF MARYLAND.
JUDGE GARLAND: LEAVE ASIDE FOR THE MOMENT THE ARGUMENT ABOUT
PRECEDENT. I FIRST HAVE TO UNDERSTAND REASON.
WHAT IS THE REASON THAT THE DISTRICT CLAUSE APPLIES DIFFERENTLY
THAN THE ENCLAVE? BASED ON THE WORDS. YOU'VE ASKED US TO BASE YOUR
ARGUMENT ON THE WORDS OF THE CONSTITUTION, WHICH IS A VERY STRONG
POSITION. AND WITH RESPECT TO THE OTHER CLAUSES YOU'VE ASKED US TO RELY
ON THE FACT THAT THE CONSTITUTION SAYS "STATE."
IF I HONOR THAT VIEW, WHAT DO I DO WITH THE DISTRICT AND ENCLAVE
CLAUSE?
MR. TYLER: WELL, THE DISTRICT CLAUSE, OF COURSE, PERMITS THE
FEDERAL GOVERNMENT, THE CONGRESS, TO RETAIN EXCLUSIVE AUTHORITY OVER THE
DISTRICT OF COLUMBIA AS IT DOES WITH FEDERAL ENCLAVES.
AND IT IS THE ADAMS PLAINTIFFS' ARGUMENTS THAT JUST AS CONGRESS
HAS RELINQUISHED CERTAIN CONTROLS, CERTAIN AUTHORITY OVER FEDERAL
ENCLAVES, SO TOO IT MUST RELINQUISH THE SAME --
JUDGE GARLAND: YOUR ARGUMENT, I TAKE IT, IS THAT THE DIFFERENCE IS
THAT IN THE ENCLAVES CONGRESS HAS NOT USED ALL THE AUTHORITY IT HAD AND
ALLOWED THE STATE OF MARYLAND TO CONTINUE.
IN THE DISTRICT OF COLUMBIA IT DID EXERCISE ALL THE AUTHORITY THAT
IT HAD. THEY ARGUE THAT DIFFERENCE IS A VIOLATION OF EQUAL PROTECTION.
BUT LEAVE THAT ISSUE ASIDE, I'M ONLY FOCUSING ON THE ENCLAVES ARGUMENT,
YOUR ARGUMENT IS IT IS THE EXERCISE OF CONGRESS'S AUTHORITY TO NOT
EXERCISE THAT MAKES THE DIFFERENCE; IS THAT RIGHT?
MR. TYLER: CORRECT, YOUR HONOR.
I THINK THE SUPREME COURT IN EVANS AS WELL NOTED THE FACT THAT IF
CONGRESS WERE TO REASSERT EXCLUSIVE JURISDICTION OVER NIH, THAT WOULD
THEN --
JUDGE GARLAND: YOU THINK THE SAME THING IN THE DISTRICT OF
COLUMBIA THEN?
IF CONGRESS WERE TO MAKE THE LAWS OF MARYLAND APPLY TO THE
RESIDENTIAL AREAS OF THE DISTRICT OF COLUMBIA BY STATUTE, THAT THEY
WOULD THEN -- THOSE RESIDENTS WOULD THEN HAVE THE AUTHORITY, WITHOUT A
CONSTITUTIONAL AMENDMENT, TO VOTE IN THE MARYLAND?
I TOOK IT FROM YOUR BRIEF THAT THE ANSWER WAS NO, BUT I DIDN'T
HEAR THE REASON WHY.
MR. TYLER: IT'S DIFFICULT. WHETHER CONGRESS HAS --
JUDGE GARLAND: THE EASY QUESTIONS I CAN ANSWER MYSELF.
MR. TYLER: WHETHER CONGRESS HAS THAT AUTHORITY BY SIMPLE
LEGISLATION TO SAY HENCEFORTH THOSE PERSONS LIVING WITHIN THE TEN-SQUARE
AREA ARE ENTITLED TO VOTE IN MARYLAND'S RESIDENCE AS IF THEY WERE A
STATE -- OR CITIZENS OF THAT STATE, DOES CONGRESS HAVE THAT AUTHORITY?
I THINK, AT THE VERY LEAST, PROBLEMS ARISE UNDER THE TWENTY-THIRD
AMENDMENT, FOR EXAMPLE, YOUR HONOR, WHICH WOULD --
JUDGE GARLAND: LET'S LEAVE THE TWENTY-THIRD OUT. I UNDERSTAND THAT
ARGUMENT, AND THERE'S TWO SIDES TO IT, BUT I'M TRYING TO UNDERSTAND THE
ARGUMENT FROM THE DISTRICT AND ENCLAVE CLAUSE.
IT SEEMS, THEN, THAT THE -- IN A SENSE, THE MANDATORY CONCLUSION
OF YOUR ARGUMENT IS THAT CONGRESS COULD ALLOW THE RESIDENTS OF THE
DISTRICT OF COLUMBIA TO VOTE IN MARYLAND BY DOING THE SAME THING TO THE
-- FOR SAKE OF ARGUMENT -- TO THE RESIDENTIAL AREAS THAT IT DID IN
ENCLAVES. IF NOT, WHY NOT?
MR. TYLER: I DON'T BELIEVE SO, YOUR HONOR. EVEN IF CONGRESS, BY
ITS OWN VOLITION, GAVE UP ITS EXCLUSIVE JURISDICTION OVER THE DISTRICT
OF COLUMBIA, THE DISTRICT OF COLUMBIA WOULD REMAIN THAT, THE DISTRICT OF
COLUMBIA, WHICH, UNDER THE DISTRICT CLAUSE, THE FRAMERS INTENDED TO BE
SEPARATE AND APART FROM THE STATES.
JUDGE GARLAND: WHY NOT THE ENCLAVES?
MR. TYLER: WELL, THE SUPREME COURT CAME TO THE CONCLUSION --
JUDGE GARLAND: NO. I KNOW. BUT I'VE GOT TO UNDERSTAND THE REASON.
WHAT'S THE -- I'M GOING TO ASK YOU ABOUT --
MR. TYLER: THOSE FEDERAL ENCLAVES ARE PART OF THE STATE OF
MARYLAND. THAT IS WHAT THE SUPREME COURT DETERMINED.
JUDGE GARLAND: WHY ARE THEY PART?
MR. TYLER: THEY EXIST WITHIN ITS POLITICAL --
JUDGE GARLAND: YOU MEAN THEY ARE SURROUNDED?
MR. TYLER: BASICALLY, YES, YOUR HONOR.
JUDGE GARLAND: WHAT IF AN ENCLAVE OVERLAPS TWO STATES? I'M SURE A
LOT OF THESE MILITARY RESERVATIONS ARE ON THE BORDERS OF STATES AND NOT
SURROUNDED.
MR. TYLER: THEY ARE STILL -- THAT PART THAT IS WITHIN THE STATE OF
TEXAS, FOR EXAMPLE --
JUDGE GARLAND: WHY CAN'T THE SAME ARGUMENT BE MADE? AGAIN, WHY
ISN'T THE SAME THE CASE FOR MARYLAND? THAT IS, WE WOULD JUST SAY, JUST
AS YOU'RE SAYING, THAT THE BORDER OF THE DISTRICT OF COLUMBIA IS THE
BORDER OF MARYLAND.
MR. TYLER: EVEN ASSUMING ARGUENDO THAT CONGRESS HAD THIS
DISCRETION TO DO SO, THE FIFTH AMENDMENT DOES NOT COMMAND THAT CONGRESS
SO ACT.
JUDGE GARLAND: THAT'S A DIFFERENT QUESTION. I UNDERSTAND.
MR. TYLER: THAT'S ULTIMATELY WHAT WE COME TO. DOES THE FIFTH
AMENDMENT --
JUDGE GARLAND: YOU DON'T ACTUALLY HAVE A POSITION ON WHETHER THIS
COULD BE DONE BY LEGISLATION; IS THAT RIGHT?
MR. TYLER: ON ITS FACE, IT LOOKS PROBLEMATIC, YOUR HONOR. WE DON'T
TAKE ANY POSITION.
JUDGE GARLAND: BUT YOU CAN'T TELL ME WHY?
MR. TYLER: WELL, THE TWENTY-THIRD AMENDMENT IS JUST ONE OF THE
REASONS.
JUDGE GARLAND: YOU THINK THE TWENTY-THIRD AMENDMENT WAS INTENDED
NOT JUST TO GIVE THE RIGHT TO VOTE FOR PRESIDENT, BUT NEGATIVELY IT WAS
INTENDED TO PRECLUDE ANY OTHER RIGHTS THAT MIGHT HAVE EXISTED?
MR. TYLER: NO, YOUR HONOR. THE TWENTY-THIRD AMENDMENT I RAISE IS
THIS.
EACH STATE IS ENTITLED TO PRESIDENTIAL ELECTORS THAT ARE THE
EQUIVALENT TO THE NUMBER OF HOUSE REPRESENTATIVES AND SENATORS IT HAS.
IT OCCURS TO ME THAT IF, BY LEGISLATION, FOR EXAMPLE, DISTRICT
RESIDENTS WERE TO BE COUNTED AS PART OF MARYLAND'S POPULATION FOR
PURPOSES OF CONGRESSIONAL ELECTIONS, VERY PROBABLY THE STATE OF MARYLAND
WOULD GET ONE ADDITIONAL HOUSE REPRESENTATIVE, ONE ADDITIONAL
PRESIDENTIAL ELECTOR. IN OTHER WORDS --
JUDGE GARLAND: ASSUMING THE TWENTY-THIRD -- WE HAVE THE
TWENTY-THIRD AMENDMENT. IT TELLS US DEFINITELY WHAT TO DO ABOUT VOTING
FOR PRESIDENT.
SO, I DON'T THINK ANYBODY COULD POSSIBLY CONCOCT AN ARGUMENT THAT
YOU COULD VOTE -- I GUESS I'LL ASK WHETHER THEY WANT TO CONCOCT THAT
ARGUMENT, I ASSUME THEY ARE NOT -- THAT VOTING FOR PRESIDENT COULD BE
THROUGH MARYLAND.
THEIR ARGUMENT, I TAKE IT, IS THAT VOTING FOR SENATOR AND
REPRESENTATIVE, ISSUES WHICH WERE NOT ADDRESSED IN THE TWENTY-THIRD
AMENDMENT, REMAIN WHATEVER THE LAW WAS BEFORE THE TWENTY-THIRD
AMENDMENT.
MR. TYLER: I AGREE WITH THAT STATEMENT, YOUR HONOR. I'M MAKING A
SEPARATE STATEMENT UNDER THE TWENTY-THIRD AMENDMENT AS THE PROBLEMS THAT
WOULD ARISE.
THE RESIDENTS OF THE STATE OF MARYLAND WOULD GET, BY OPERATION OF
GRANTING DISTRICT RESIDENTS THE RIGHT TO VOTE IN THAT STATE --
JUDGE GARLAND: IT'S A PRACTICAL PROBLEM.
MR. TYLER: WELL, INDEED. AN ENORMOUS TENSION WOULD ARISE BETWEEN
THE TWENTIETH. THAT'S NOT WHAT CONGRESS OR THESE RATIFYING STATES
INTENDED TO HAPPEN.
JUDGE GARLAND: CAN YOU POINT ME TO ANY LEGISLATION HISTORY IN THE
CONGRESS THAT SAID THAT THEY INTENDED BY THE TWENTY-THIRD AMENDMENT TO
REMOVE ANY RIGHTS THAT EXISTED BEFORE OR REPRESENTATIVE?
MR. TYLER: THEY DID NOT. IT WAS THEIR UNDERSTANDING AND BELIEF
THAT THE DISTRICT WAS NOT A STATE FOR PURPOSES OF CONGRESSIONAL
ELECTIONS.
JUDGE GARLAND: THAT SEEMS TO HAVE BEEN A LOT OF PEOPLE'S
UNDERSTANDING UNTIL THEY BROUGHT THIS LAWSUIT. AND THE EFFECT -- PLEASE
-- THAT UNDERSTANDING ONLY WORKS IF IT'S ENACTED INTO LAW. NOW,
OBVIOUSLY, IT CAN HAVE AUTHORITY. IT CAN GIVE US AN IDEA THAT MAYBE IT'S
THE RIGHT UNDERSTANDING.
MR. TYLER: THAT'S HOW I ARGUE IT.
JUDGE GARLAND: LET ME ASK YOU ONE MORE QUESTION FROM EVANS.
YOUR ARGUMENT ABOUT ENCLAVES IS, AS WE HAVE JUST DISCUSSED, THAT
IT WAS ONLY THE FACT THAT CONGRESS LET MARYLAND IN THE ENCLAVES ASSERT
ITS JURISDICTION THAT ULTIMATELY LED TO THE CONCLUSION THAT THEY WERE
RESIDENTS OF THE STATE.
MR. TYLER: I DON'T READ EVANS TO SAY THAT. I READ EVANS IN TWO
PARTS, YOUR HONOR.
FIRST, THE SUPREME COURT CAME TO THE CONCLUSION IT REJECTED THIS
FICTION THAT THERE CAN EXIST A STATE WITHIN A STATE, AND IT CAME TO THIS
CONCLUSION --
JUDGE GARLAND: FIRST.
MR. TYLER: YES.
JUDGE GARLAND: AND THEN IT APPLIED EQUAL PROTECTION.
MR. TYLER: AND THEN IT WENT: DO YOU, THE STATE OF MARYLAND BY YOUR
LEGISLATURE, UNDER EQUAL PROTECTION PRINCIPLES HAVE THE RIGHT TO EXCLUDE
THESE MARYLAND RESIDENTS?
JUDGE GARLAND: ALL RIGHT. I READ IT THE SAME WAY. SO THEN WE ARE
STUCK WITH THIS QUESTION, THEN.
THAT IS, I THOUGHT IN THE BRIEFS YOU HAD DISTINGUISHED THE
ENCLAVES CASES BY THE FACT THAT MARYLAND WAS UNFAIRLY DEALING WITH ONE
SET OF ITS CITIZENS AS COMPARED TO ANOTHER. BUT, IN FACT, EVANS DOES
STAND FOR THE PROPOSITION, THEN, THAT AT LEAST WITH RESPECT TO THE
ENCLAVES, THE FIRST QUESTION IS ARE THEY CITIZENS OF MARYLAND? YES. AND
THEN THE SECOND QUESTION -- RIGHT.
SO THEN WE'RE JUST STUCK WITH THE ARGUMENT YOU AND I HAVE BEEN
DISCUSSING, WHICH IS: WHY IS IT THAT WHEN THE ENCLAVE WAS CEDED THE
RESIDENCY IN MARYLAND DIDN'T DIE, BUT WHEN THE DISTRICT OF COLUMBIA WAS
CEDED, IT DID?
IS THERE ANYTHING ABOUT THE STATUTES, THE CESSION THAT'S DIFFERENT
FOR -- THAT WAS DIFFERENT FOR ENCLAVES?
MR. TYLER: AGAIN, YOUR HONOR, I DON'T KNOW HOW I CAN ANSWER IT
BETTER THAN TO SAY THAT --
JUDGE GARLAND: IT JUST IS.
MR. TYLER: -- THE NIH EXISTS WITHIN THE STATE AND IS PART OF THE
STATE AS OPPOSED TO THE DISTRICT OF COLUMBIA, WHICH UNDER THE DISTRICT
CLAUSE, HAS ALWAYS BEEN RECOGNIZED AS SEPARATE AND APART FROM THE
STATES.
AND THE SUPREME COURT AND ALL COURTS HAVE FOUND THAT SINCE 1801
DISTRICT RESIDENTS ARE NOT MARYLAND RESIDENTS, WHICH I DON'T FIND TO BE
A PARTICULARLY REMARKABLE CONCLUSION TO MAKE. IT'S ONE OF COMMON SENSE.
AND, AS A RESULT, WE SEE NOTHING IN THE CONSTITUTION, NOTHING IN
ARTICLE 1, NOTHING IN THE FIFTH AMENDMENT THAT OTHERWISE ALLOWED THE
DISTRICT RESIDENTS OR REQUIRED THE DISTRICT RESIDENTS TO BE ENTITLED TO
VOTE IN MARYLAND'S ELECTIONS.
JUDGE OBERDORFER: WHAT DO YOU DO WITH THE ORGANIC ACT OF 1801?
MR. TYLER: WELL, YOUR HONOR, I THINK OF IT MORE AS A MATTER OF
OFFER AND ACCEPTANCE. OFFER BY THE STATES OF MARYLAND AND VIRGINIA OF
THEIR TERRITORY TO CEDE THAT TERRITORY TO THE FEDERAL GOVERNMENT AS
INTENDED BY THE FRAMERS IN ORDER TO FORM OUR NATIONAL SEAT OF
GOVERNMENT.
CONGRESS WAS NOT AT THE END OF THE EIGHTEENTH CENTURY PREPARED TO
ARRIVE WITHIN THE DISTRICT, WHICH INCLUDED BACK THEN ONLY OF THE TOWNS
OF -- IT WAS ALEXANDRIA AND GEORGETOWN.
THE AREA THAT THIS COURTHOUSE NOW SITS IN WAS MORE WILDERNESS THAN
ANYTHING ELSE. AND AS A MATTER OF PRACTICAL CONCERN CONGRESS JUST CAME
TO THE CONCLUSION UNTIL SUCH TIME AS WE, THE CONGRESS, ARE ABLE TO
ARRIVE AT THIS NEWLY-DESIGNATED SEAT OF GOVERNMENT AND THE LAWS IN
EFFECT AT THAT TIME, STATE LAWS CAN CONTINUE INTO EFFECT. AT THE TURN OF
THE CENTURY --
JUDGE OBERDORFER: I DON'T READ ANY SUCH LIMITATION.
IT SAYS HERE: THE LAWS OF THE STATE OF MARYLAND, AS THEY NOW
EXIST, SHALL BE AND CONTINUE IN FORCE IN THAT PART OF THE SAID DISTRICT,
WHICH WAS CEDED BY THAT STATE TO THE UNITED STATES, AND BY THEM ACCEPTED
AS AFORESAID.
WHERE IS THIS TIME LIMITATION?
MR. TYLER: AND THEY CONTINUED ON WHAT WERE KNOWN AS THE LEVY
COURTS ON THE MARYLAND SIDE OF THE POTOMAC RIVER. I THINK A DIFFERENT
FORM OF GOVERNMENT EXISTED OVER ON THE ALEXANDRIA, THE VIRGINIA SIDE OF
THE RIVER. CONGRESS, PURSUANT TO ITS AUTHORITY UNDER THE DISTRICT
CLAUSE, SIMPLY CONTINUED THESE LAWS OVER TO APPLY TO DISTRICT RESIDENTS.
JUDGE OBERDORFER: WE STILL APPLY MARYLAND LAW WHERE THERE'S NO
CLEAR DISTRICT PRECEDENT OR STATUTORY PROVISION.
MR. TYLER: INDEED. I THINK ONE OF THE AMICAE POINTED OUT THAT
THERE IS STILL BRITISH LAW ON THE BOOKS. THAT DOES NOT MAKE US BRITISH
CITIZENS, OF COURSE.
JUDGE OBERDORFER: THE BRITISH DIDN'T CEDE TO US. I THINK WE TOOK
IT.
MR. TYLER: BUT THE POINT -- INDEED. BUT THE POINT REMAINS, YOUR
HONOR, THAT UNDER OUR CONSTITUTION CONGRESS HAS EXCLUSIVE AUTHORITY OVER
THE DISTRICT OF COLUMBIA, AND AS INTENDED BY THE FRAMERS THE DISTRICT
HAS ALWAYS EXISTED AS A SEPARATE AND DISTINCT ENTITY APART FROM THE
STATES.
JUDGE OBERDORFER: AND AS PART OF THE EXERCISE OF THAT AUTHORITY
CONGRESS ENACTED THE ORGANIC ACT OF 1801.
MR. TYLER: CORRECT, YOUR HONOR, AND TOOK ITS SEAT OF GOVERNMENT IN
THE DISTRICT AS INTENDED BY THE FRAMERS.
THAT CONCLUDES MY REMARKS, YOUR HONOR, UNLESS YOU HAVE QUESTIONS
REGARDING OUR STANDING ISSUES.
JUDGE OBERDORFER: I DO. WE HAVE SEVERAL QUESTIONS.
JUDGE GARLAND: ON THE STANDING ARGUMENT. IS THE BOTTOM LINE OF
YOUR ARGUMENT, THEN, THAT THE CASE IS NOT SUBJECT TO JUDICIAL REVIEW BY
ANY -- LET ME JUST GIVE YOU THE HYPOTHETICAL.
LET'S SAY THE PRESIDENT OF THE UNITED STATES WERE TO DECIDE THAT
BECAUSE THE CITIZENS OF ALABAMA VOTED AGAINST HIM IN THE LAST ELECTION,
THAT HE WAS NOT GOING TO INCLUDE IN THE CENSUS TABULATION THAT'S SENT
FORWARD ANY REPRESENTATIVES FOR THE STATE OF ALABAMA? WOULD IT BE
SUBJECT TO SUIT?
WOULD THERE BE STANDING FOR THE CITIZENS OF ALABAMA JUST AS THE
CITIZENS OF THE DISTRICT OF COLUMBIA SUE NOW? I TOLD YOU I CAN ONLY ASK
YOU THE HARD QUESTIONS.
MR. TYLER: I KNOW, YOUR HONOR. IT'S ALWAYS THE IMPOSSIBLE
QUESTIONS.
I LOOK AT FRANKLIN VS MASSACHUSETTS WHICH CONTINUED THE HOLDING BY
THE SUPREME COURT OF THE NINETEENTH CENTURY, THE MISSISSIPPI CASE, WHICH
IS THAT PURSUANT TO SEPARATION OF POWERS PRINCIPALS IT IS INAPPROPRIATE
FOR THE FEDERAL COURTS TO ISSUE DECLARATORY OR INJUNCTIVE RELIEF AGAINST
THE PRESIDENT.
JUDGE GARLAND: I'LL TALK ABOUT FRANKLIN IN A MINUTE. BUT IS YOUR
CONCLUSION FROM FRANKLIN THAT THE PRESIDENT COULD DO THIS?
MR. TYLER: I'D HAVE TO SAY YES, YOUR HONOR, UNDER THE
CIRCUMSTANCES.
JUDGE GARLAND: SO THEN IF PRESIDENT CLINTON REALLY WANTED TO GIVE
THE CITIZENS OF THE DISTRICT OF COLUMBIA REPRESENTATIVES IN THE HOUSE OF
REPRESENTATIVES HE WOULD ANNOUNCE TOMORROW THAT HE WAS GOING TO SEND
FORWARD A CENSUS TABULATION WHICH INCLUDES REPRESENTATIVES FOR THE HOUSE
FROM THE DISTRICT OF COLUMBIA AND NO ONE WOULD BE ABLE TO COMPLAIN.
MR. TYLER: NO ONE WOULD BE ABLE TO OBTAIN INJUNCTIVE AND
DECLARATORY RELIEF AGAINST THE PRESIDENT.
JUDGE GARLAND: OR ANY OTHER KIND OF RELIEF. YOU'VE GOT DECLARATORY
JUDGMENT AND INJUNCTION. DO EITHER OF THESE SOUND SENSIBLE?
MR. TYLER: NO, QUITE FRANKLY.
JUDGE GARLAND: BUT THAT'S YOUR POSITION.
MR. TYLER: WELL, IT'S THE POSITION OF THE SUPREME COURT.
JUDGE GARLAND: WELL, IT'S THE POSITION OF THE SUPREME COURT.
NOW, IN FRANKLIN, FOUR JUSTICES -- WELL, LET ME ASK YOU THIS. HOW
MANY JUSTICES IN FRANKLIN SAID THERE WAS NO STANDING? THIS IS AN EASY
QUESTION.
MR. TYLER: ONE.
JUDGE GARLAND: AND HIS NAME?
MR. HUEFNER: JUSTICE SCALIA.
JUDGE GARLAND: AND HE ALSO SAID -- HOW MANY DID HE SAY HAD VOTED
FOR STANDING, IMPLICITLY OR EXPLICITLY?
MR. TYLER: IMPLICITLY HE NOTED THAT THERE WERE EIGHT WHO FOUND
STANDING.
JUDGE GARLAND: SO FOUR OF THE JUSTICES REJECT YOUR ARGUMENT
ALTOGETHER; RIGHT? THEIR ARGUMENT WAS THERE WAS STANDING ANYWAY.
MR. TYLER: UNDER THE CIRCUMSTANCES OF THAT CASE, WHICH WE DON'T
THINK APPLY TO THIS, THAT IS CORRECT.
JUDGE GARLAND: AND HOW ARE THEY DIFFERENT?
MR. TYLER: I'M SORRY, YOUR HONOR. I'M LOOKING AT THE PLURALITY
DECISION.
JUDGE GARLAND: YES, I'M LOOKING AT THE PLURALITY. WHY IS IT
DIFFERENT?
MR. TYLER: IN THAT CASE THEY RECOGNIZED THAT IT WAS INAPPROPRIATE
TO ISSUE -- NO MATTER IF IT MAKES SENSE OR NOT, IT'S INAPPROPRIATE TO
ISSUE INJUNCTIVE AND DECLARATORY RELIEF AGAINST THE PRESIDENT HIMSELF
CONCERNING THE EXERCISE OF HIS DUTIES.
JUDGE GARLAND: BUT THEY SAID THAT THE ISSUANCE OF DECLARATORY
RELIEF WITH RESPECT TO THE SECRETARY OF COMMERCE OR THE CENSUS BUREAU
WOULD BE SUFFICIENT TO GRANT STANDING.
MR. TYLER: AND THEY SEEMED TO PUT GREAT EMPHASIS ON THE FACT THAT
IN THAT CASE AS OPPOSED TO THIS CASE THERE WAS DIRECTLY AT ISSUE A
POLICY DECISION THAT THE SECRETARY HAD MADE AND THAT WOULD BE INTERESTED
IN DEFENDING. THEY PUT EMPHASIS ON THAT.
JUDGE GARLAND: OBVIOUSLY. YOU'RE HERE, RIGHT?
MR. TYLER: WELL, INDEED.
JUDGE GARLAND: YOU REPRESENT THE SECRETARY OF COMMERCE AND YOU'RE
INTERESTED IN DEFENDING IT.
MR. TYLER: INDEED. BUT THAT IS NOT WHAT WAS INTENDED BY THE
SUPREME COURT, YOUR HONOR. I DO HAVE AN INTEREST IN DEFENDING, BUT THE
INTEREST THE SUPREME COURT SPOKE --
JUDGE GARLAND: IT ALL RELIES ON WHAT THE WORD "POLICY"
MEANS. YOU THINK THAT THE STANDING DECISION THERE WITH RESPECT TO THOSE
FOUR RESTED ON THE FACT THAT THERE WAS SOME POLICY RATHER THAN HIS LEGAL
DECISION THAT THAT WAS THE RIGHT THING TO DO.
MR. TYLER: THERE WAS NO LEGAL DECISION MADE.
YOUR HONOR ASSUMES THE PREMISE THAT A PRESIDENT OF THE UNITED
STATES, EVER IN THE HISTORY OF THE UNITED STATES, HAS EXERCISED
DISCRETIONARY AUTHORITY TO DENY DISTRICT RESIDENTS THE RIGHT TO VOTE.
JUDGE GARLAND: IT DOESN'T DO ANYTHING LIKE -- QUITE THE OPPOSITE.
I THINK THE POINT ABOUT FRANKLIN IS THAT THEY SAID THE PRESIDENT WOULD
DO THE RIGHT THING IF A COURT ANNOUNCED WHAT THE RIGHT THING WAS. I
DON'T THINK THE PRESIDENT WILL DO THE WRONG THING.
MR. TYLER: THE PLURALITY ASSUMED AS MUCH, YOUR HONOR.
JUDGE GARLAND: WELL, THE OTHER FOUR SAID HE HAD NO DISCRETION.
MR. TYLER: INDEED.
JUDGE GARLAND: SO HE HAD TO DO IT.
MR. TYLER: RIGHT. BUT THAT WAS THE DISSENTING OPINION, AND THE
MAJORITY --
JUDGE GARLAND: FOUR JUSTICES VOTED STANDING BECAUSE THE PRESIDENT
WOULD DO THE RIGHT THING, AND FOUR DON'T REACH EVEN THE STANDING ISSUE.
THEY SAY THE PRESIDENT MUST DO THE RIGHT THING.
MR. TYLER: CORRECT. UNDER THAT STATUTE, THAT THE PRESIDENT HAD NO
DISCRETION --
JUDGE GARLAND: IT'S THE SAME STATUTE, ISN'T IT?
MR. TYLER: WELL, INDEED. BUT THE DISSENT FOUND, UNDER THE
ADMINISTRATIVE PROCEDURES ACT AND PURSUANT TO THE TERMS OF THE STATUTE
AT ISSUE IN THAT CASE, THAT ONCE THE SECRETARY OF COMMERCE MAKES A
POLICY DECISION REGARDING HOW TO CONDUCT A DECENNIAL CENSUS, THAT THE
PRESIDENT HAS NO CHOICE UNDER THAT STATUTE BUT TO ACCEPT --
JUDGE GARLAND: THAT'S THE STATUTE WE'RE TALKING ABOUT.
MR. TYLER: INDEED.
JUDGE GARLAND: IT'S THE SAME STATUTE.
MR. TYLER: INDEED. BUT THE MAJORITY DISAGREED WITH THAT, THAT THE
PRESIDENT OF THE UNITED STATES HAS THE DISCRETION.
JUDGE GARLAND: YES, BUT THOSE FOUR SAID THERE WERE STANDING.
MR. TYLER: THEY DID.
JUDGE GARLAND: AND THE ONLY STANDING DISPUTE WAS WHETHER THE
PRESIDENT HAD DISCRETION. THAT WAS THE ISSUE. IF THE PRESIDENT DIDN'T
HAVE DISCRETION, THEN THERE WOULD BE NO REDRESSABILITY QUESTION.
THOSE FOUR SAID THE PRESIDENT DOES HAVE DISCRETION, BUT
NONETHELESS THERE'S NO REDRESSABILITY QUESTION. RIGHT?
MR. TYLER: THE DISSENTS.
JUDGE GARLAND: NO, THE MAJORITY. IT'S A LITTLE HARD TO TALK ABOUT
THE DISSENTS AND MAJORITIES HERE.
LET'S TALK ABOUT FOUR WHO SAY THERE WAS STANDING, FOUR WHO SAY
THERE WAS AN APA ACTION BECAUSE THERE WAS NO DISCRETION ON THE PART OF
THE PRESIDENT, AND ONE WHO SAID NO STANDING.
MR. TYLER: CORRECT.
JUDGE GARLAND: OKAY. NOW, OF THE FIRST FOUR, THE ONES WHO SAID
THERE WAS STANDING, THEY SAY THAT -- LET ME FIND THE NAMES OF THE FOUR,
THAT WILL MAKE IT EASIER. LET'S JUST TALK ABOUT THE NAMES OF THE FOUR.
SO WE HAVE GOT O'CONNOR, REHNQUIST, WHITE, AND THOMAS SAY
STANDING; RIGHT?
MR. TYLER: CORRECT.
JUDGE GARLAND: AND THE ONLY ISSUE THAT THEY REALLY DISCUSS ABOUT
STANDING IS REDRESSABILITY, AND THE ONLY REDRESSABILITY ISSUE WAS: DOES
THE PRESIDENT BASICALLY HAVE TO DO WHAT THE COMMERCE DEPARTMENT TELLS
HIM? RIGHT?
MR. TYLER: WELL, THE PLURALITY ASSUMED -- THEY UNDERSTOOD THAT THE
PRESIDENT --
JUDGE GARLAND: THE ARGUMENT RAISED ON THE OTHER SIDE -- AND I
DON'T REMEMBER WHICH SIDE THE GOVERNMENT WAS ON, I GUESS THE GOVERNMENT
WAS ON THE SAME SIDE AS IT IS NOW -- WAS THAT PRESIDENT DIDN'T HAVE TO
DO WHAT -- DIDN'T HAVE TO TAKE THE FIGURES AS THEY WERE GIVEN.
MR. TYLER: CORRECT.
JUDGE GARLAND: AND THEY SAID THAT WAS RIGHT, BUT NONETHELESS THERE
WAS STANDING; RIGHT? THAT'S WHAT O'CONNOR, REHNQUIST, WHITE, AND THOMAS
SAID.
MR. TYLER: THAT'S CORRECT.
JUDGE GARLAND: NOW, STEVENS, BLACKMAN, KENNEDY, AND SOUTER SAY THE
PRESIDENT HAS TO TAKE THE NUMBERS GIVEN BY THE CENSUS.
MR. TYLER: THAT IS CORRECT. IT DIDN'T PREVAIL AND, THEREFORE,
THAT'S A MINORITY OPINION, OF COURSE.
JUDGE GARLAND: BUT IT PREVAILED WITH RESPECT TO THE RESULT. WE
HAVE FOUR JUSTICES WHO SAY YOU'RE WRONG HERE BECAUSE THERE IS NO
DISCRETION ON THE PART OF THE PRESIDENT, AND FOUR WHO SAY YOU'RE WRONG
HERE BECAUSE, ALTHOUGH THERE IS DISCRETION, THERE'S STANDING. ONLY ONE
JUSTICE SAID NO STANDING.
MR. TYLER: IF I CAN ADDRESS IT IN TERMS OF -- THE DISSENT IS NOT
CONTROLLING LAW BECAUSE IT'S THE DISSENT. THE PLURALITY OPINION IS NOT
CONTROLLING LAW BECAUSE IT'S THE PLURALITY OPINION.
JUDGE GARLAND: SO THERE'S NO CONTROLLING LAW HERE. SO WE SHOULD DO
WHAT WE THINK IS RIGHT. IS THAT WHAT YOU'RE TELLING US?
NO, I'M SERIOUS. IT'S ONE THING TO ARGUE THAT FRANKLIN CONTROLS
THIS, WHICH IS WHAT YOU WERE ABOUT TO SAY BEFORE, BUT NOW YOU'RE TELLING
ME THERE'S NO AUTHORITY AND WE HAVE TO DRAW OUR OWN CONCLUSIONS ABOUT
STANDING.
MR. TYLER: AGAIN, TO THE EXTENT -- LET'S ASSUME ARGUENDO THAT THE
PLURALITY DECISION WAS PREVAILING LAW OR CONTROLLING LAW OR THIS COURT
WISHED TO ADOPT IT. I THINK IT'S DISTINGUISHABLE FROM THIS CASE FOR THE
REASONS I'VE SET FORTH.
JUDGE GARLAND: WHAT ARE THEY?
MR. TYLER: BECAUSE THE PLURALITY DECISION LOOKED AT THE FACT THAT
AT ISSUE IN THAT CASE WAS A DECISION MADE BY THE SECRETARY HIMSELF, AND
IT CONCERNED THE COUNTING OF OVERSEAS AMERICANS, AMERICANS RESIDING
OVERSEAS. THAT WAS CHALLENGED DIRECTLY AT ISSUE IN THAT DECISION.
AND THE PLURALITY PLACED GREAT EMPHASIS ON THE FACT THAT AS A
RESULT OF HIS OWN DECISION BEING CHALLENGED IN THAT COURT THE SECRETARY
WOULD HAVE AN INTEREST IN DEFENDING THAT DECISION.
JUDGE KOTELLY: WHY ISN'T IT THE SAME CASE NOW? I MEAN, THE
SECRETARY HAS INTERPRETED THE CONSTITUTION JUST AS THEY MADE A POLICY
DECISION TO PRECLUDE USING THE CENSUS OF THE DISTRICT OF COLUMBIA IN
DETERMINING APPORTIONMENT DECISION.
MR. TYLER: NO, HE HAS NOT, YOUR HONOR. CONGRESS DID THAT. PURSUANT
TO 13 USC 141, IT SPECIFICALLY PROVIDES THAT THE SECRETARY OF COMMERCE
HAS A DUTY AND OBLIGATION TO UNDERTAKE THIS CENSUS FOR PURPOSES OF
CONGRESSIONAL ELECTIONS AND COUNT THE PEOPLE AMONG THE SEVERAL STATES.
JUDGE KOTELLY: BUT THE TABULATION OF POPULATION THAT IS FURNISHED
THE PRESIDENT FOR APPORTIONMENT PURPOSES, THE SECRETARY HAS INTERPRETED
THE CONSTITUTION TO PRECLUDE AND OMIT D.C. CITIZENS. ISN'T THAT CORRECT?
SO WHAT'S THE DIFFERENCE BETWEEN FRANKLIN AND THIS CASE?
MR. TYLER: THAT ISSUE WAS NOT THE CHALLENGE. THE PLAINTIFFS HAVE
NOT ARGUED THAT THE SECRETARY MISINTERPRETED THAT STATUTE. THEY HAVE NOT
ARGUED THAT UNDER THAT STATUTE CONGRESS INTENDED FOR D.C. RESIDENTS TO
BE INCLUDED WITHIN THE CENSUS COUNT FOR PURPOSES OF THE REAPPORTIONMENT
--
JUDGE GARLAND: -- THE SAME WORDS OF THE CONSTITUTION.
MR. TYLER: INDEED. IT ATTRACTS.
JUDGE GARLAND: RIGHT. SO THIS IS AN INTERPRETATION OF THE --
JUDGE KOTELLY: RIGHT.
JUDGE GARLAND: YOU ONLY INTERPRET IT THE WAY YOU'RE INTERPRETING
IT -- I ASSUME YOU DON'T THINK THAT THE STATUTE WAS MEANT DIFFERENTLY
THAN THE CONSTITUTION.
MR. TYLER: THEY CHALLENGED THE STATUTE TO THE EXTENT THAT CONGRESS
ENACTED THESE TERMS --
JUDGE GARLAND: CONGRESS ENACTED TERMS IDENTICAL TO THE
CONSTITUTION. I ASSUME, UNLESS YOU CAN GIVE ME LEGISLATIVE HISTORY
OTHERWISE, THAT CONGRESS'S INTENT WAS THAT, THE SAME MEANING AS THE
CONSTITUTION.
MR. TYLER: CORRECT.
JUDGE GARLAND: OKAY. SO IN ORDER TO FIGURE OUT WHAT CONGRESS'S
INTENT WAS WE REALLY DO HAVE TO LOOK TO THE MEANING OF THE CONSTITUTION.
MR. TYLER: OH, INDEED.
JUDGE GARLAND: SO SECRETARY DALEY HAS INTERPRETED THE CONSTITUTION
IN A CERTAIN WAY.
MR. TYLER: YES, SHE HAS -- OR HE HAS. ACTUALLY, HIS PREDECESSOR.
JUDGE GARLAND: FAIR ENOUGH. THAT'S A GOOD POINT. THE COMMERCE
DEPARTMENT. LET'S JUST MAKE IT AN ENTITY SO WE DON'T ATTRIBUTE ANY
PERSONAL RESPONSIBILITY.
THAT ENTITY HAS INTERPRETED THE CONSTITUTION A CERTAIN WAY, AND HE
--
MR. TYLER: INTERPRETED THE STATUTE. THE STATUTE, YOUR HONOR, WHICH
IS ONLY --
JUDGE GARLAND: -- THE CONSTITUTION.
MR. TYLER: INDEED, BUT THE SECRETARY IS NOT CHARGED WITH MAKING AN
INDEPENDENT REVIEW.
JUDGE GARLAND: HE HAS TO FIGURE OUT WHAT THE STATUTE MEANS,
DOESN'T HE?
MR. TYLER: YES. AND PLAINTIFFS HAVE NOT CHALLENGED THE FACT OR HAS
NOT SAID HE HAS MISINTERPRETED THE STATUTE.
JUDGE GARLAND: HOW DID HE DO THAT? HOW DID HE FIGURE OUT WHAT THE
STATUTE MEANT?
MR. TYLER: BY ITS PLAIN TERMS. NOW, AGAIN --
JUDGE GARLAND: WHICH ARE THE SAME AS THE CONSTITUTION.
MR. TYLER: I BELIEVE THERE IS A DIFFERENCE, YOUR HONOR, AND I CAN
ONLY STATE IT AS MUCH AS I HAVE BEFORE.
IN FRANKLIN, THE SECRETARY MADE A POLICY DETERMINATION THAT WAS
CHALLENGED. NOW, HERE, YOU ARE CORRECT. THE SECRETARY OF COMMERCE, OR AT
LEAST THE PREDECESSOR, HAS FOLLOWED THE VERY PLAIN LANGUAGE OF THIS
STATUTE AND HAS CERTIFIED ONLY THE PEOPLE OF THE SEVERAL STATES FOR
PURPOSES OF CONGRESSIONAL REAPPORTIONMENT.
PLAINTIFFS IN THESE LAWSUITS DID NOT COME IN AND SAY: YOU, THE
SECRETARY OF COMMERCE, HAVE MISREAD THE STATUTE.
JUDGE GARLAND: I GOT THE ARGUMENT. LET ME SEE IF I UNDERSTAND
THEN.
THIS POINT, THEN, HAS NOTHING TO DO WITH REDRESSABILITY, DOES IT?
IT HAS TO DO WITH CONCRETE INJURY.
MR. TYLER: IT HAS TO DO WITH WHETHER, IN FACT -- IF THE PLURALITY
DECISION IN FRANKLIN WERE TO BE ADOPTED BY THIS COURT, DOES IT APPLY BY
ITS REASONING TO THIS CASE? AND WE BELIEVE THAT IT DID.
JUDGE GARLAND: I UNDERSTAND. BUT THE ARGUMENT THAT YOU'RE MAKING
ABOUT THAT DECISION -- THAT IS, THAT IT RESTED ON THE FACT THAT THE
SECRETARY HAD A POLICY INTEREST THAT HE WAS INTERESTED IN DEFENDING --
MR. TYLER: WITHIN THE MEANING OF THAT DECISION.
JUDGE GARLAND: IT'S NOT REALLY AN ARGUMENT ABOUT THE
REDRESSABILITY PRONG OF STANDING, IS IT?
MR. TYLER: WELL, IT SEEMS TO HAVE MADE AN IMPRESSION -- YES, IT
IS, YOUR HONOR.
JUDGE GARLAND: ABOUT REDRESSABILITY --
MR. TYLER: ABOUT REDRESSABILITY.
JUDGE GARLAND: -- OR IS ABOUT WHETHER THERE'S REALLY A SET OF
ADVERSE PARTIES HERE WITH AN INTEREST IN ARGUING THE CASE?
MR. TYLER: WELL, I GO BACK TO THE PLURALITY IN FRANKLIN, YOUR
HONOR, WHICH ADDRESSED IT WITHIN THE CONTEXT OF REDRESSABILITY. AND
AGAIN IN DETERMINING THAT IT WAS APPROPRIATE THAT THE INJURIES
COMPLAINED OF IN THAT CASE COULD BE ADDRESSED BY A DECLARATORY ORDER
ISSUED AGAINST THE SECRETARY ALONE PLACED EMPHASIS ON THE FACT THAT A
POLICY DECISION MADE BY THE SECRETARY WAS AT ISSUE.
JUDGE GARLAND: WHAT I'M ASKING YOU IS: HOW DOES THE FACT THAT IT
WAS A POLICY DECISION AFFECT REDRESSABILITY?
MR. TYLER: WELL, AGAIN, THE REASONING OF THE PLURALITY SEEMS TO BE
THAT THE SECRETARY WOULD HAVE THIS INTEREST TO DEFEND AND THEN THEY MADE
A SECOND STEP.
JUDGE GARLAND: IT'S THE FIRST STEP THAT'S OF RELEVANCE HERE;
RIGHT?
NOW, THE FIRST STEP -- THE WORDS YOU'RE GIVING ME ARE NOT THE
WORDS OF REDRESSABILITY. REDRESSABILITY MEANS WHETHER OR NOT AN ORDER OF
THE COURT WILL VINDICATE THE RIGHTS SOUGHT. THAT'S NOT WHAT THE POLICY
ISSUE IS.
MR. TYLER: I UNDERSTAND THAT, YOUR HONOR, WHEN TAKEN ALONE. BUT
THIS WAS THE THEORY OF THE PLURALITY IN FRANKLIN, AND THAT WAS THE FIRST
STEP THEY MADE.
AND THEN THE SECOND STEP THEY MADE --
JUDGE GARLAND: ISN'T THE FIRST STEP A QUESTION OF WHETHER WE
REALLY HAVE ADVERSE PARTIES HERE?
MR. TYLER: IT SEEMS TO BE.
JUDGE GARLAND: YOU THINK WE DON'T HAVE ADVERSE PARTIES HERE?
MR. TYLER: WELL, YOUR HONOR, AGAIN, DOES THIS CASE -- DOES THE
FRANKLIN PLURALITY DECISION BY ITS LOGIC APPLY TO THIS CASE? AND WE
DON'T THINK THAT IT DOES FOR THAT REASON I HAVE SET FORTH.
THE PLURALITY THEN MADE THE SECOND STEP, WHICH TOOK THE SECOND
STEP, BECAUSE THERE ARE THESE ADVERSE PARTIES BECAUSE THE SECRETARY
CERTAINLY HAS AN INTEREST IN DEFENDING HIS POLICY DECISIONS.
WE DO HAVE AN ADVERSARIAL RELATIONSHIP AND THEN WE ASSUME -- WE,
THE PLURALITY, WILL ASSUME THAT WHATEVER ORDER THIS COURT ISSUES AGAINST
THE SECRETARY WILL BE FOLLOWED BY THE PRESIDENT, A PROPOSITION THAT
JUSTICE SCALIA CERTAINLY DID NOT ACCEPT AND THE DISSENTS DID NOT ADDRESS
AT ALL.
JUDGE GARLAND: BUT THEY REACHED THE MERITS.
MR. TYLER: THEY DID REACH THE MERITS.
BUT AGAIN, YOUR HONOR, UNDER THE FRANKLIN DECISION, IS THE
DISSENTS' THEORY IN SUPPORT OF STANDING GOVERNING LAW? IT IS NOT. IT WAS
A DISSENT.
IS THE PLURALITIES' OPINION GOVERNING LAW? WE SUBMIT THAT IT IS
NOT BECAUSE IT'S PLURALITY. EVEN IF THIS COURT MIGHT CHOOSE TO ADOPT
THAT, WE THINK THAT IT CAN BE DISTINGUISHED ON THE GROUNDS I'VE STATED
TO THIS COURT IN OUR PAPERS.
JUDGE GARLAND: YOU CHARACTERIZED THE FOUR -- THAT'S STEVENS,
BLACKMAN, KENNEDY, AND SOUTER -- AS A DISSENT; RIGHT? THAT'S WHO YOU'RE
TALKING ABOUT.
MR. TYLER: ACCORDING TO JUDGMENT. I THINK IT WAS A JUDGMENT. THEY
WERE A DISSENT.
JUDGE GARLAND: OF COURSE THEY DON'T CHARACTERIZE THEIR POSITION
THAT WAY AT ALL. THE INTRODUCTION OF THEIR OPINION SAYS: JUSTICE
STEVENS, WITH WHOM JUSTICE BLACKMAN, KENNEDY, AND SOUTER JOINED,
CONCURRING IN PART AND CONCURRING IN THE JUDGMENT.
MR. TYLER: THANK YOU, YOUR HONOR. I'LL BE MORE SPECIFIC ABOUT IT.
THEY WERE A DISSENT ON THE APA ISSUE. JUSTICE STEVENS AND COMPANY
FOUND THAT UNDER THE STATUTE IN QUESTION THE PRESIDENT HAD NO
DISCRETION. THAT WOULD THEN GIVE STANDING PURSUANT TO THAT THEORY,
BECAUSE IF YOU ISSUED A DECLARATORY JUDGMENT AGAINST THE SECRETARY AND
YOU ACCEPT JUSTICE STEVENS --
JUDGE GARLAND: THEY WERE NOT DISSENTING. THEY WERE NOT DISSENTING
ON THE STANDING ISSUE.
MR. TYLER: THEY DIDN'T ADDRESS THE STANDING ISSUE, BUT PURSUANT TO
THEIR APA CONCLUSIONS, NECESSARILY THERE WOULD BE STANDING BECAUSE,
ACCORDING TO JUSTICE STEVENS, THE PRESIDENT HAS NO DISCRETION, NO
CHOICE.
SO YOU COULD GET REDRESSED BY THAT MEANS, BUT THAT'S -- I CALL IT
A DISSENT BECAUSE THAT'S THE ISSUE I FOCUSED ON -- YOUR HONOR HAS
CORRECTED ME -- REGARDING JUDGMENT, BUT THAT IS A DISSENT REGARDING THAT
PARTICULAR ISSUE.
JUDGE GARLAND: WHICH IS NOT THE ISSUE BEFORE US AT ALL.
MR. TYLER: WELL, AGAIN, IT'S CAN THE INJURIES COMPLAINED OF --
JUDGE GARLAND: NO. THE ISSUE ON WHICH THEY DISSENTED, WHICH WAS
THE ADMINISTRATIVE PROCEDURE ACT, IT'S NOT -- I DIDN'T SEE ANY
ADMINISTRATIVE PROCEDURE ACT ARGUMENT HERE.
MR. TYLER: OH, INDEED. AND THE MAJORITY HELD THAT THE PRESIDENT
UNDER THIS STATUTE THAT IS CHALLENGED IN THIS CASE DOES HAVE THE
DISCRETION.
SO, OUR POINT BEING THAT ANY DECLARATORY INJUNCTIVE RELIEF ISSUED
AGAINST THE SECRETARY IS NOT BINDING UPON THE PRESIDENT.
YOUR HONOR HAS NO FURTHER QUESTIONS?
JUDGE OBERDORFER: THANK YOU, SIR.
MR. KIRCHER: GOOD MORNING, YOUR HONORS. KERRY KIRCHER ON BEHALF OF
THE THREE HOUSE OFFICERS: THE CLERK, THE SERGEANT-AT-ARMS, AND THE CHIEF
ADMINISTRATIVE OFFICER.
I PROPOSE TO USE MY TEN MINUTES TO ADDRESS THE ISSUE OF
PLAINTIFFS' LACK OF STANDING TO SUE THE CONGRESSIONAL OFFICERS, AND IT
MAY BE A LITTLE ANTICLIMACTIC AT THIS POINT, BUT IT'S AN IMPORTANT ISSUE
FROM THE STANDPOINT OF THE HOUSE OFFICERS.
THE ADAMS PLAINTIFFS HAVE SUED TWO CONGRESSIONAL OFFICERS: THE
CLERK OF THE HOUSE AND THE SERGEANT-AT-ARMS.
THE ALEXANDER PLAINTIFFS HAVE SUED ALL THREE OF THE HOUSE OFFICERS
AND THE TWO SENATE OFFICERS AS WELL. THAT WOULD BE THE SECRETARY OF THE
SENATE AND THE SERGEANT-AT-ARMS AND DOORKEEPER OF THE SENATE.
HOWEVER, THE STANDING ARGUMENTS AS TO ALL FIVE OF THESE OFFICERS
ARE BASICALLY THE SAME, SO I DON'T PROPOSE TO DISTINGUISH BETWEEN THE
TWO CASES.
AS THE COURT IS WELL AWARE, THE STANDING REQUIRES THREE THINGS. IT
REQUIRES INJURY. IT REQUIRES TRACEABILITY. IT REQUIRES REDRESSABILITY.
NONE OF THE DEFENDANTS HAVE SERIOUSLY DISPUTED THE INJURY, IN
FACT, ELEMENT OF STANDING IN THIS CASE. THE OFFICERS HAVE VIGOROUSLY
DISPUTED THE TRACEABILITY ASPECT OF THE STANDING INQUIRY.
TRACEABILITY SMACKS OF CAUSE AND EFFECT, YOUR HONORS. WORTH V
SELDON SAID THAT THE QUESTION IS WHETHER INJURY, QUOTE, CAN BE SAID TO
HAVE RESULTED IN ANY CONCRETELY DEMONSTRABLE WAY FROM THE DEFENDANTS'
ALLEGED ACTIONS.
IN OTHER WORDS, THE DEFENDANTS HAVE TO HAVE DONE SOMETHING OR
ADMITTED TO HAVE DONE SOMETHING AND AS A RESULT OF THAT THE PLAINTIFFS
HAVE TO HAVE BEEN INJURED.
JUDGE OBERDORFER: HOW ABOUT THREATENED TO DO SOMETHING?
MR. KIRCHER: OR THREATENED TO DO SOMETHING.
WHAT YOU HAVE HERE ARE THINGS, ACTIONS THAT ARE ALLEGED ON BEHALF
OF THE CONGRESSIONAL OFFICERS THAT FLOW FROM THE FACT OF DEFENDANTS'
INJURY. THEY ARE NOT THE CAUSE OF THAT INJURY.
LET ME START WITH THE CHIEF ADMINISTRATIVE OFFICER AND THE
SECRETARY OF THE SENATE. BOTH OF THOSE OFFICERS ARE RESPONSIBLE BY
STATUTE AND BY RULE FOR PAYING MEMBERS' SALARIES.
THOSE OFFICERS DON'T HAVE DISCRETION TO RECOGNIZE MEMBERS OF THE
HOUSE OR SENATE AND THEN PAY SALARIES TO THOSE PERSONS. THEY PAY
SALARIES TO THE MEMBERS OF THE HOUSE AND SENATE WHO ARE RECOGNIZED AND
GIVEN AN OATH BY THOSE TWO BODIES.
THE PLAINTIFFS SAY THAT THOSE OFFICERS WILL NOT PAY SALARIES TO
MEMBERS WHO ARE ELECTED FROM THE DISTRICT, AND THAT NONPAYMENT IN FACT
CAUSES THEM NOT TO BE ABLE TO ELECT REPRESENTATIVES IN THE FIRST PLACE.
THAT'S WRONG. THAT IS PRECISELY BACKWARDS. IT IS BECAUSE OF THE
FACT THAT THE DISTRICT OF COLUMBIA DOES NOT HAVE THE RIGHT TO ELECT
MEMBERS TO THE HOUSE AND TO THE SENATE, THAT THE HOUSE AND SENATE DO NOT
RECOGNIZE MEMBERS FROM THE DISTRICT OF COLUMBIA, AND THE CHIEF
ADMINISTRATIVE OFFICER AND THE SECRETARY OF THE SENATE DO NOT PAY
SALARIES TO THOSE PERSONS.
JUDGE GARLAND: WE'RE REQUIRED, FOR PURPOSES OF STANDING, TO ASSUME
THAT THE PLAINTIFFS WIN THE MERITS; RIGHT?
MR. KIRCHER: MM-HMM.
JUDGE GARLAND: SO IF WE ASSUME THE RESIDENTS OF THE DISTRICT OF
COLUMBIA ARE ENTITLED TO A REPRESENTATIVE -- THAT'S THE WAY WE HAVE TO
DO THIS ARGUMENT; RIGHT?
MR. KIRCHER: CORRECT.
JUDGE GARLAND: IN THAT CASE, I TAKE IT YOU WOULD PAY THE SALARIES?
MR. KIRCHER: YES. BUT THE FACT THAT WE AT THIS STAGE WOULD NOT PAY
THE SALARIES IF THEY DID NOT ELECT A MEMBER DOES NOT CAUSE THE INJURY IN
THE FIRST PLACE.
JUDGE OBERDORFER: BUT IF YOU DIDN'T PAY THEM, AND AS YOU NOW
THREATENED, THAT WOULD BE A CAUSE OF INJURY.
MR. KIRCHER: NO, IT WOULD NOT BE, YOUR HONOR.
THE FACT THAT AS THINGS NOW STAND -- LET ME TAKE THE DELEGATE FROM
THE DISTRICT OF COLUMBIA AS AN EXAMPLE.
THE DELEGATE OF THE DISTRICT OF COLUMBIA IS ELECTED BY THE
DISTRICT OF COLUMBIA. BY STATUTE SHE IS PAID A MEMBER'S SALARY. BY
STATUTE SHE'S ADMITTED ON TO THE HOUSE FLOOR. SHE VOTES IN COMMITTEE.
IT'S IMPOSSIBLE TO SAY THAT THEREFORE BECAUSE SHE IS PAID, THAT
THE ABSENCE OF PAYMENT THEREFORE CAUSES HER NOT TO BE A MEMBER IN THE
FIRST PLACE.
THE DISTRICT OF COLUMBIA IS ELECTING A DELEGATE. SHE IS BEING
PAID. SOMEONE IS BEING PAID FROM THE DISTRICT OF COLUMBIA THE EQUIVALENT
OF A MEMBER'S SALARY.
YOU CANNOT SAY, THEREFORE, THAT THE ABSENCE OF PAYMENT IS WHAT
CAUSES THE INJURY IN THE FIRST PLACE. THE FACT THAT THE DELEGATE IS NOT
ABLE TO VOTE ON THE FLOOR OF THE HOUSE RESULTS FROM A DIFFERENT CAUSE,
NOT FROM THE ABSENCE OF PAYMENT.
JUDGE OBERDORFER: HOW DO YOU SQUARE THAT WITH THE POWELL DECISION?
MR. KIRCHER: IN TERMS OF STANDING, YOUR HONOR?
JUDGE OBERDORFER: YES.
MR. KIRCHER: WELL, THE INJURY IN POWELL WAS THE ABSENCE OF
PAYMENT. IT WAS THE MEMBER HIMSELF SUING BECAUSE HE HAD NOT BEEN PAID BY
THE HOUSE OFFICER.
JUDGE OBERDORFER: AND HE HAD BEEN EXPELLED.
MR. KIRCHER: HE HAD BEEN EXPELLED BY THE HOUSE.
JUDGE OBERDORFER: SO HE WASN'T A MEMBER.
MR. KIRCHER: WELL, THAT WAS THE ISSUE ON THE MERITS.
BUT BY THE TIME THE CASE CAME TO THE SUPREME COURT AN INTERVENING
ELECTION HAD TAKEN PLACE. HIS INJURY WAS NO LONGER EXPULSION. THAT PART
OF THE CASE WAS MOOT.
THE ONLY THING THAT WAS NOT MOOT WAS -- THAT'S IDENTIFIED IN THE
SUPREME COURT'S OPINION IS THE FACT THAT HE HAD NOT BEEN PAID A SALARY.
HE HAD NOT BEEN PAID HIS SALARY FROM THE 90TH CONGRESS FROM WHICH HE HAD
BEEN EXCLUDED.
THE SUPREME COURT DECISION DOESN'T SPECIFICALLY FRAME THE ARGUMENT
IN TERMS OF STANDING, BUT WHAT YOU DERIVE FROM THAT IS THE FACT THAT THE
HOUSE OFFICER DIRECTLY CAUSED THE INJURY TO MR. POWELL, CONGRESSMAN
POWELL, BY THE FACT THAT HE DIDN'T PAY THE SALARY. THAT'S NOT THE CASE
HERE.
IF THE SERGEANT-AT-ARMS -- I'M SORRY -- THE CHIEF ADMINISTRATIVE
OFFICER AND THE SECRETARY OF THE SENATE WERE TO ANNOUNCE TODAY THAT THEY
WERE GOING TO PAY SALARIES TO THE MEMBERS ELECTED BY THE DISTRICT OF
COLUMBIA IT WOULD CHANGE NOTHING. THAT WOULD NOT REMEDY THE INJURY THAT
PLAINTIFFS HAVE ALLEGED, WHICH IS THEIR INABILITY TO ELECT CONGRESSIONAL
REPRESENTATIVES.
JUDGE OBERDORFER: BUT YOU ASSUME THAT THE PLAINTIFFS HAVE
PREVAILED ON THE MERITS.
MR. KIRCHER: I THINK I'D SAY IF THE PLAINTIFF PREVAILED ON THE
MERITS, THEN OF COURSE THE SERGEANT-AT-ARMS WOULD PAY THE SALARY. THE
ARGUMENT I'M MAKING IS THAT DOESN'T CAUSE HIM NOT TO BE ABLE TO ELECT
THAT PERSON IN THE FIRST PLACE.
THE SAME THING IS TRUE, YOUR HONOR, OF THE ARGUMENT THAT THE CLERK
AND THE SECRETARY OF THE SENATE COMPILE ROLLS OF THE HOUSE AND SENATE
AND DO NOT INCLUDE ON THE ROLL OF THE HOUSE AND SENATE A MEMBER ELECTED
FROM THE DISTRICT OF COLUMBIA.
THE SAME ARGUMENT IS TRUE OF THE ALLEGATION THAT THE CLERK CAUSES
THE INJURY BY VIRTUE OF THE FACT THAT SHE DOESN'T COUNT THE VOTES OF
MEMBERS ELECTED FROM THE DISTRICT OF COLUMBIA.
THE SAME ARGUMENT APPLIES TO THE TWO SERGEANTS-AT-ARMS WITH
RESPECT TO THE ALLEGATION THAT THEY CAUSED THE INJURY BY NOT ADMITTING
TO THE FLOOR OF THE HOUSE THE MEMBER ELECTED FROM THE DISTRICT OF
COLUMBIA.
IN EACH CASE THOSE THINGS RESULT FROM THE FACT THAT THE DISTRICT
DOES NOT ELECT MEMBERS. THEY DO NOT CAUSE THAT INJURY.
THERE'S ONE OTHER ALLEGATION AS TO INJURY THAT REQUIRES A SLIGHTLY
SEPARATE DISCUSSION, AND THAT'S THE ALLEGATION THAT THE CLERK EVERY TEN
YEARS AFTER THE DECENNIAL CENSUS MAILS OUT A CERTIFICATE TO EACH STATE
TELLING THEM HOW MANY MEMBERS THAT THEY HAVE FOR THE NEXT TEN YEARS TO
ELECT TO CONGRESS.
THE ARGUMENT WITH RESPECT TO THAT DUTY, WHICH IS A STATUTORY DUTY
IMPOSED ON THE CLERK, IS IN PART THE SAME. THAT IS, IT ALSO FLOWS FROM
THE FACT THAT THE DISTRICT DOES NOT ELECT MEMBERS.
HOWEVER, THERE'S A SEPARATE ARGUMENT, AND THAT IS EVEN IF THERE
WERE A CAUSAL RELATIONSHIP THERE -- THAT IS, THAT THE CLERK'S FAILURE TO
MAIL OUT A CERTIFICATE TO THE D.C. ELECTIONS BOARD, FOR EXAMPLE, WERE IN
SOME WAY TO CAUSE THE INJURY -- IT'S SO INSUBSTANTIAL, IT'S SO
INSIGNIFICANT, THE ACTUAL TRANSMITTAL OF THE CERTIFICATE, THAT THE COURT
MUST DISREGARD IT FOR STANDING PURPOSES.
JUDGE GARLAND: IT'S SORT OF LIKE, YOU KNOW, DON'T PASS GO IN
MONOPOLY. ALL YOU REALLY DO, YOU JUST SEND WHATEVER THE PRESIDENT SENDS
OVER WITH RESPECT TO THE NUMBER OF VOTES PER STATE; ISN'T THAT RIGHT?
MR. KIRCHER: THAT'S CORRECT.
JUDGE GARLAND: SO YOU'RE NOT DOING ANYTHING OTHER THAN -- YOU'RE
THE TRANSMITTAL AGENT HERE, THAT'S ALL.
MR. KIRCHER: ABSOLUTELY. THAT'S WHY I SAY THERE'S A SEPARATE
SUBSTANTIAL ARGUMENT AS TO WHAT THE CLERK DOES, EVEN IF IN THE
CAUSE-EFFECT ANALYSIS THE CLERK COULD BE SAID IN SOME WAY TO HAVE
PARTICIPATED IN CAUSING THAT INJURY.
JUDGE GARLAND: WOULD YOU SAY SOMETHING ABOUT THE SPEECH AND DEBATE
CLAUSE ARGUMENT?
MR. KIRCHER: YOUR HONORS, I HAVE NOT SPECIFICALLY PREPARED THAT.
STEVE HUEFNER FROM THE SENATE HAS PREPARED THAT, AND SINCE YOU ARE
ANXIOUS TO HEAR FROM IT, I WILL JUST WRAP UP AND THANK YOU.
JUDGE OBERDORFER: GOOD MORNING.
MR. HUEFNER: GOOD MORNING.
MAY IT PLEASE THE COURT, I AM STEVEN HUEFNER HERE TODAY
REPRESENTING THE SECRETARY OF THE SENATE AND THE SENATE SERGEANT-AT-ARMS
WHO HAVE BEEN NAMED AS DEFENDANTS ONLY IN THE ALEXANDER CASE AND NOT THE
ADAMS' CASE.
THESE SENATE DEFENDANTS HAVE MOVED FOR THEIR DISMISSAL FROM THE
ALEXANDER CASE FOR TWO JURISDICTIONAL REASONS.
THE FIRST, AS WE HAVE JUST HEARD FROM MR. KIRCHER, IS THAT THE
PLAINTIFFS LACK ARTICLE 3 STANDING AGAINST THE SENATE DEFENDANTS.
AS MR. KIRCHER HAS FULLY EXPLAINED, THE SENATE DEFENDANTS HAVE
TAKEN NO ACTION TO DEPRIVE DISTRICT RESIDENTS OF A RIGHT TO VOTE FOR
MEMBERS OF THE SENATE, AND THE SENATE AND HOUSE DEFENDANTS COULD NOT
REMEDY THE ALLEGED DEPRIVATION OF THIS RIGHT.
I WOULD LIKE TO FOCUS MY TIME ON THE SECOND REASON FOR DISMISSING
THE CONGRESSIONAL DEFENDANTS FROM BOTH OF THESE CASES, THE SPEECH OR
DEBATE CLAUSE.
THIS CLAUSE FOUND IN ARTICLE 1, SECTION 6, CLAUSE 1 OF THE
CONSTITUTION, PROVIDES THAT FOR ANY SPEECH OR DEBATE IN EITHER HOUSE,
REPRESENTATIVES AND SENATORS SHALL NOT BE QUESTIONED IN ANY OTHER PLACE.
IN NAMING THE HOUSE AND SENATE OFFICERS AS DEFENDANTS THE
PLAINTIFFS HERE SEEK TO QUESTION THEM ABOUT THEIR ROLES OF CONTROLLING
ACCESS TO THE SENATE FLOOR, RECORDING SENATE VOTES, AND PAYING SENATORS'
SALARIES.
WE DO NOT ASSERT THAT THE ACTION OF PAYING SALARIES IS PROTECTED
BY THE SPEECH OR DEBATE CLAUSE. BUT AS MR. KIRCHER HAS EXPLAINED AND OUR
BRIEFS POINT OUT, NO PLAINTIFF HERE CLAIMS OR COULD CLAIM THEMSELVES ANY
ENTITLEMENT TO SENATE PAY IN CONTRAST TO THE POWELL VS MCCORMACK CASE.
ALL THE REMAINING CLAIMS AGAINST THE CONGRESSIONAL DEFENDANTS ARE
PRECLUDED BY THE SPEECH OR DEBATE IMMUNITY. THE SPEECH OR DEBATE CLAUSE
PROTECTS NOT MERELY CONGRESSIONAL SPEECH AND DEBATE; RATHER, AS THE
SUPREME COURT EXPLAINED IN GRAVELLE VS THE UNITED STATES, IT MUST BE
READ BROADLY TO EFFECTUATE ITS PURPOSES.
AS THE COURT ALSO EXPLAINED IN GRAVELLE, THESE PURPOSES ARE TO
PROTECT, QUOTE, THE DELIBERATIVE AND COMMUNICATIVE PROCESSES WITH
RESPECT TO THE CONSIDERATION AND PASSAGE OR REJECTION OF PROPOSED
LEGISLATION OR WITH RESPECT TO OTHER MATTERS WHICH THE CONSTITUTION
PLACES WITHIN THE JURISDICTION OF EITHER HOUSE, CLOSE QUOTE. WITH
RESPECT TO SUCH MATTERS, THE CLAUSE PROTECTS CONGRESS FROM BOTH
EXECUTIVE AND JUDICIAL INTERFERENCE.
FURTHERMORE, THE CLAUSE EXTENDS THE SAME BROAD PROTECTION TO AIDES
AS TO LEGISLATORS. GRAVELLE, DOE VS MCMILLAN, AND CASES SINCE HAVE
REPEATEDLY MADE THIS --
JUDGE GARLAND: LET ME ASK YOU -- IN ORDER TO GIVE EQUAL HARD
QUESTION TREATMENT HERE. LET ME ASK YOU THE SAME HARD QUESTION I ASKED
THE EXECUTIVE BRANCH DEFENDANTS BUT WITH A SLIGHTLY DIFFERENT SPIN.
IF THE SPEAKER OF THE HOUSE AND ALL THE VARIOUS -- OR THE
PRESIDENT OF THE SENATE, THE MAJORITY LEADER OF THE SENATE AND ALL THE
NECESSARY PEOPLE IN THE SENATE WERE TO ANNOUNCE THE FOLLOWING: WE DON'T
LIKE DEMOCRATS AND SO WE'RE NOT GOING TO ADMIT TO THE SENATE -- AND SO
OUR VIEW IS THAT NO SENATOR ELECTED AS A DEMOCRAT IS A SENATOR AND WILL
NOT HAVE ADMISSION TO THE HOUSE -- TO THE SENATE. I'M SORRY. I'VE GOT TO
KEEP MY HYPOTHETICALS IN ORDER. NOT CHALLENGEABLE IN ANY WAY?
MR. HUEFNER: WELL, OBVIOUSLY, THAT'S NOT IN THIS CASE. WE'VE NEVER
HAD A CASE LIKE THAT.
JUDGE GARLAND: NO, NO. BUT WE HAVE TO UNDERSTAND THE IMPLICATIONS
OF THE RULING.
MR. HUEFNER: SURE.
THE VERY FIRST SPEECH OR DEBATE CASE ADDRESSED BY THE SUPREME
COURT INCLUDED A STATEMENT THAT THERE MIGHT BE CIRCUMSTANCES IN WHICH
THE PROTECTIONS OF THE CLAUSE WOULD NOT APPLY.
WE HAVE NOT FACED A HYPOTHETICAL, ANYTHING LIKE WHAT YOU'RE
SUGGESTING. AND, IN FACT, AS JUDGE WILLIAMS OF THE D.C. CIRCUIT SAID IN
THE NIXON VS UNITED STATES CASE, WHICH WAS AN IMPEACHMENT OF A JUDGE
CASE, IN RESPONSE TO A CONSIDERATION OF SOME SIMILAR HYPOTHETICALS,
"IF WE REACH THAT POINT, THE UNION IS IN MUCH GRAVER DANGER THAN
SIMPLY BY THE ISSUE PRESENTED IN THE CASE." THANKFULLY --
JUDGE GARLAND: THE ANSWER IS YOU DON'T KNOW WHAT WOULD HAPPEN
UNDER THOSE CIRCUMSTANCES?
MR. HUEFNER: I DON'T KNOW FOR SURE, BUT I'M ADMITTING THAT THERE
ARE CIRCUMSTANCES THAT WE CAN HYPOTHESIZE IN WHICH WE WOULD NOT WANT --
JUDGE GARLAND: LET'S SAY THAT THE SENATE WERE TO SAY: WELL,
ACTUALLY, WE LIKE D.C. STATEHOOD AND WE'RE GOING TO REPRESENT -- OR THE
HOUSE WOULD SAY: WE THINK THAT THE NONVOTING DELEGATE IS ACTUALLY THE
DELEGATE -- IS ACTUALLY A REPRESENTATIVE AND SHOULD HAVE THE FULL VOTE.
NOT DEBATABLE? NOT DISPUTABLE? NOT CHALLENGEABLE IN COURT? SORT OF THE
REVERSE OF THE COMMITTEE OF THE WHOLE CASE.
MR. HUEFNER: LET ME BE CLEAR ABOUT THE SPEECH OR DEBATE CLAUSE.
THE ANSWER TO THAT QUESTION IS THAT MIGHT BE REVIEWABLE IN SOME
PROCEEDING, BUT NOT IN A PROCEEDING AGAINST MEMBERS OF CONGRESS OR THEIR
STAFFS FOR THEIR PERFORMANCE OF LEGISLATIVE FUNCTIONS.
LET ME BE CLEAR ABOUT THAT POINT. THE SPEECH OR DEBATE CLAUSE IS
AN IMMUNITY FOR THE MEMBERS AND THEIR STAFF.
JUDGE GARLAND: THAT'S WHAT I'M ASKING. I'M MAKING IT EASIER FOR
YOU, BUT I'M ASKING ABOUT THE MEMBERS. LET'S FORGET ABOUT THE STAFFS FOR
A MINUTE. I UNDERSTAND YOUR ARGUMENT THAT YOU'RE JUST DOING WHAT THEY
TELL YOU. I UNDERSTAND THAT ARGUMENT.
THE QUESTION, THOUGH, IS: IF THE SENATE OR THE HOUSE WERE TO SAY:
WE'RE GOING TO ACCEPT THE DELEGATE AS A VOTING REPRESENTATIVE, NOBODY
COULD SUE TO PREVENT THAT FROM HAPPENING?
MR. HUEFNER: NO ONE COULD SUE MEMBERS OF THE SENATE. THEY MIGHT
CHALLENGE THE CONSTITUTIONALITY OF LEGISLATION PASSED BY SUCH A CONGRESS
IN ANOTHER PROCEEDING IN WHICH THEY FOUND PROPER DEFENDANTS, BUT THE
SPEECH OR DEBATE CLAUSE IMMUNIZES THE MEMBERS OF THE SENATE FOR THEIR
POOR PERFORMANCE OF THEIR CONSTITUTIONAL FUNCTIONS WHICH INCLUDE THE
JUDGMENT OF THE ELECTIONS AND QUALIFICATIONS OF THEIR MEMBERS. THAT'S A
CONSTITUTIONAL FUNCTION PROTECTED AS THE SUPREME COURT FOUND IN GRAVELLE.
SO AGAIN --
JUDGE OBERDORFER: LET ME ASK YOU SOMETHING, COUNSEL. HAVE YOU
FINISHED YOUR ANSWER?
MR. HUEFNER: YES.
JUDGE OBERDORFER: THE REPRESENTATIVES OF THE HOUSE INDICATED THAT
IN THE EVENT THAT THE PLAINTIFFS PREVAILED HERE AND THAT THE PRESIDENT
CERTIFIED ANOTHER REPRESENTATIVE, THE STAFF WOULD HONOR THEIR PRESENCE.
CAN YOU MAKE THE SAME REPRESENTATION WITH RESPECT TO THE SENATE?
MR. HUEFNER: YES, I BELIEVE I CAN.
THE HOUSE OFFICERS ARE ONLY GOING TO DO WHAT -- ARE ONLY GOING TO
PERFORM THEIR FUNCTIONS ON BEHALF OF THOSE INDIVIDUALS THAT THEY HAVE
BEEN TOLD ARE MEMBERS OF THE SENATE AND THE HOUSE RESPECTIVELY.
JUDGE OBERDORFER: WHEN THEY'VE BEEN TOLD BY THE PRESIDENT THAT --
MR. HUEFNER: WELL, I'M NOT SURE. I MEAN --
JUDGE OBERDORFER: MAYBE THE PROCESS DOESN'T WORK THAT WAY.
MR. HUEFNER: I CAN'T ANSWER WHAT WOULD HAPPEN IF THERE WERE A
DISPUTE BETWEEN THE PRESIDENT AND LEGISLATIVE BRANCH. THAT MIGHT INDEED
RAISE --
JUDGE OBERDORFER: THE PRESIDENT DOESN'T HAVE ANY ROLE IN THE
SELECTION OF SENATORS, DOES HE?
MR. HUEFNER: THAT'S CORRECT. HIS ROLE HERE IN THESE CASES ONLY
INVOLVE APPORTIONMENT APPLYING ONLY TO THE HOUSE.
JUDGE OBERDORFER: BUT WOULD THE PRESIDENT BE THE ONE TO
COMMUNICATE TO YOU THAT THERE'S AN ADDITIONAL SENATOR OR PAIR OF
SENATORS? HOW WOULD YOU FIND THAT OUT?
MR. HUEFNER: I CAN'T TELL YOU. I CAN'T IMAGINE THAT HAPPENING.
JUDGE OBERDORFER: YOU CAN'T IMAGINE THAT THE PLAINTIFFS COULD
PREVAIL IN THIS CASE?
MR. HUEFNER: NO, NO, NO. I WAS ONLY TAKING YOUR HYPOTHETICAL THAT
PRESIDENT WOULD TELL THE SENATE WHOM THE SENATE SHOULD RECOGNIZE --
JUDGE OBERDORFER: WHAT IS THE PROCESS IN THE EVENT THAT THERE IS A
NEW PAIR OF SENATORS?
WHAT HAPPENED WHEN ALASKA WAS ADMITTED TO THE UNION AND YOU HAD
TWO NEW SENATORS? WHAT WAS THE MECHANICAL PROCESS BY WHICH THEY GAINED
ENTRY TO THE CHAMBER?
MR. HUEFNER: WELL, AS WITH ANY SENATOR, THE STATE CERTIFIES THEIR
ELECTION.
JUDGE OBERDORFER: IT'S THE STATE CERTIFICATION.
MR. HUEFNER: THAT'S RIGHT. THE PRESIDENT HAS NO ROLE IN CERTIFYING
FOR THE PURPOSE OF THE SENATE'S DECISION ABOUT WHETHER TO RECOGNIZE THE
ELECTION. THANK YOU.
JUDGE OBERDORFER: BUT YOU ARE MAKING REPRESENTATIONS THAT IF YOU
HAD A CERTIFICATION FROM A STATE, THE STAFF WOULD HONOR THAT?
MR. HUEFNER: AGAIN, IF THERE WERE A CERTIFICATION FROM A STATE,
FROM ANY STATE, ANY OF THE 50 STATES --
JUDGE OBERDORFER: WHAT ABOUT IF YOU HAD CERTIFICATION FROM THE
DISTRICT?
MR. HUEFNER: OR FROM THE DISTRICT. IT'S UP TO THE SENATE TO DECIDE
WHETHER THEIR CERTIFICATION IS IN ORDER.
AT THE BEGINNING OF EACH CONGRESS THOSE CERTIFICATES ARE PRESENTED
TO THE SENATE -- AND I'M PRESUMING SOMETHING ROUGHLY THE SAME OCCURS IN
THE HOUSE. IN THE SENATE THEY ARE PRESENTED BY THE PRESIDENT OF THE
SENATE TO THE FULL BODY WITH THE PRESIDENT STATING THAT TO HIM THEY
APPEAR TO BE IN ORDER.
AT THAT POINT THE SENATE MAKES THE DECISION WHETHER TO RECOGNIZE
THOSE ELECTED SENATORS. AND IF THE SENATE BELIEVES THERE'S SOME
QUESTION, IT'S THEN THE SENATE'S RESPONSIBILITY, AS THE JUDGE OF THE
ELECTIONS AND QUALIFICATIONS OF ITS MEMBERS UNDER ARTICLE 1 OF THE
CONSTITUTION, TO DETERMINE FOR ITSELF. AND THOSE VERY CIRCUMSTANCES HAVE
GIVEN RISE TO A NUMBER OF CONTESTED ELECTION CASES IN WHICH THE SENATE
RULES COMMITTEE IS CHARGED WITH THE TASK AS AN INITIAL MATTER OF
DETERMINING ON BEHALF OF THE SENATE WHETHER TO RECOGNIZE THE
PUTATIVELY-ELECTED SENATOR.
JUDGE OBERDORFER: AND THAT WOULDN'T HAVE ANYTHING TO DO WITH
APPORTIONMENT, OBVIOUSLY.
MR. HUEFNER: THAT'S CORRECT. THAT'S RIGHT.
LET ME TAKE JUST A MINUTE TO DISCUSS IN A LITTLE MORE DETAIL THE
POWELL VS MCCORMACK DECISION IN RELIANCE ON WHICH THE PLAINTIFFS
ARGUMENT THAT THE SPEECH OR DEBATE CLAUSE SIMPLY DOES NOT PROTECT STAFF
ENFORCEMENT OF ALLEGEDLY UNCONSTITUTIONAL LEGISLATIVE ACTS.
IT'S SIMPLY NOT THE CASE THAT ANY STAFF ACTION PURSUANT TO A
CONGRESSIONAL DIRECTIVE AMOUNTS TO UNPROTECTED ENFORCEMENT ACTIONS.
INDEED, MOST OF WHAT CONGRESSIONAL STAFF DOES IS IN RESPONSE TO SOME
CONGRESSIONAL DIRECTIVE, OR ENFORCEMENT OF SOME CONGRESSIONAL DIRECTIVE.
BUT INSTEAD THE QUESTION IS: IS THE ACTION ITSELF A LEGISLATIVE
FUNCTION OR, AS THE PLAINTIFFS HAVE ACKNOWLEDGED IN THEIR REPLY, WHETHER
THE CHALLENGED ACTIONS, QUOTE, DIRECTLY CONTRIBUTED TO THE LEGISLATIVE
PROCESS? IF SO, IT'S ABSOLUTELY PROTECTED WHETHER PERFORMED BY AIDE OR
MEMBER. AND HERE IT'S CLEAR THAT THE CHALLENGED ACTIONS ARE ESSENTIAL TO
THE LEGISLATIVE PROCESS.
IF STAFF ACTION OF CONDUCTING A HEARING IS PROTECTED, AS THE
PLAINTIFFS HAVE ACKNOWLEDGED THAT IT IS, THEN A FORTIORI STAFF ACTION IN
CONDUCTING A FLOOR DEBATE MUST BE PROTECTED.
IF STAFF ACTION IN REPORTING ON WHAT OCCURS IN THE HOUSE OR SENATE
CHAMBERS OR COMMITTEES IS PROTECTED, AS CASES SUCH AS BROWNING AND DOE
VS MCMILLAN HAVE CONCLUDED THAT IT IS, THEN A FORTIORI ACTS OF RECORDING
THE VOTES IN THOSE CHAMBERS MUST BE PROTECTED.
FINALLY, IF HOUSE OR SENATE DECISIONS ABOUT WHOM TO EXCLUDE FROM
THEIR CHAMBERS OR EXPEL FROM THEIR CHAMBERS ARE PROTECTED, AS THIS COURT
DETERMINED IN WILLIAMS VS BUSH, DECISIONS ABOUT WHOM TO RECOGNIZE AS A
SENATOR MUST ALSO BE PROTECTED.
ACCORDINGLY, THE SPEECH OR DEBATE CLAUSE REQUIRES THE DISMISSAL OF
THE CONGRESSIONAL DEFENDANTS IN EACH OF THESE CASES. IF THESE ACTIONS
CAN BE MAINTAINED, IT MUST BE AGAINST SOME OTHER DEFENDANTS.
THANK YOU.
JUDGE OBERDORFER: LET'S HEAR FROM MR. REZNECK AND THEN AFTER YOUR
STATEMENT WE WILL TAKE A TEN-MINUTE RECESS.
MR. REZNECK: DANIEL REZNECK FOR THE FINANCIAL AUTHORITY.
MAY IT PLEASE THE COURT. THE AUTHORITY IS SUED ONLY IN THE ADAMS'
CASE. WE DON'T BELONG IN THAT CASE AND ALL WE WANT IS TO GET OUT. ALL I
WANT IS TO BE ABLE TO GO BACK AND SIT IN THE AUDIENCE IN THIS CASE.
JUDGE GARLAND: YOU DON'T THINK THESE GUYS FEEL THE SAME WAY?
(LAUGHTER)
MR. REZNECK: NOT AS STRONGLY AS I DO, I THINK.
WE MAINTAIN THAT ALL THREE OF THE ELEMENTS OF CONSTITUTIONAL
STANDING ARE MISSING IN THIS CASE, IN THE ADAMS' CASE, AS TO THE
AUTHORITY.
FIRST OF ALL, THE CASES REQUIRE A CONCRETE AND PARTICULARIZED
INJURY. THERE IS NOTHING THAT THE PLAINTIFFS HAVE POINTED TO OR COULD
POINT TO THAT THE AUTHORITY HAS EITHER DONE TO THEM OR THREATENED TO DO
TO THEM WHICH WOULD CARVE THEM OUT OF THE GENERAL POPULATION. AND THEY
HAVEN'T DONE THAT.
WE DON'T RAISE STANDING OBJECTIONS LIGHTLY. IN THE SHOOK CASE,
WHICH I'M SURE JUDGE GARLAND WILL RECALL, THE AUTHORITY HAD TRANSFERRED
MANY OF THE POWERS OF THE BOARD OF EDUCATION TO ITSELF. WE WERE SUED BY
MEMBERS OF THE BOARD OF EDUCATION. WE WENT DIRECTLY TO THE MERITS.
JUDGE GARLAND: EXCUSE ME. BUT THE FACT THAT -- I REMEMBER THE
SHOOK CASE, HAVING BEEN ON THE PANEL -- BUT THE FACT THAT EVERYBODY IN
THE DISTRICT OF COLUMBIA IS INJURED -- AGAIN, WE ASSUME THE MERITS --
THAT CAN'T MEAN THAT NOBODY IN THE DISTRICT OF COLUMBIA CAN SUE.
IF A STATE LEGISLATURE WERE MALAPPORTIONED IN SUCH A WAY THAT
EVERYBODY WAS HURT OR IF A STATE LEGISLATURE -- I'M TRYING TO THINK --
EXERCISED AUTHORITIES WHICH IT DID NOT HAVE, ANY CITIZEN COULD SUE,
COULDN'T THEY?
MR. REZNECK: I THINK YOU HAVE TO DIFFERENTIATE AMONG THE
DEFENDANTS IN SUCH A CASE. I THINK YOU'RE RIGHT. YOU CAN'T SAY --
JUDGE GARLAND: THEY COULD SUE THE LEGISLATURE.
MR. REZNECK: YES. I DON'T THINK YOU CAN SAY NOBODY CAN SUE
ANYBODY. BUT THE QUESTION HERE IS WHETHER THEY HAVE STANDING TO SUE THE
FINANCIAL AUTHORITY, AND I DON'T THINK THAT THEY DO. NOW, IT BLENDS OVER
INTO CAUSALITY, I AGREE, BUT I THINK IT CAN ALSO BE SEPARATED OUT.
SUPPOSE THESE PLAINTIFFS HAD SUED THE MAYOR, FOR EXAMPLE, ALONE.
THEY CLEARLY WOULDN'T HAVE STANDING TO DO THAT, IT SEEMS TO ME. HE HAS
NO AUTHORITY WITH RESPECT TO THE CONGRESSIONAL FRANCHISE. AND IT SEEMS
TO ME THAT THEY WOULD NOT HAVE CARVED THEMSELVES OUT OF THE GENERAL
POPULATION.
JUDGE GARLAND: I UNDERSTAND THAT. BUT I THOUGHT THAT THE ADAMS'
ARGUMENT IS A LITTLE BROADER THAN JUST -- I THINK THAT'S RIGHT WITH
RESPECT TO THE ALEXANDER CASE IN WHICH YOU'RE NOT A DEFENDANT -- BUT I
THOUGHT THE ADAMS' ARGUMENT WAS BROADER THAN THAT; THAT THERE CAN'T BE
ANY -- THAT WHATEVER LEGISLATIVE POWERS, WHICH YOU HAVE, WHICH CERTAINLY
IN SHOOK YOU TOLD US WERE QUITE BROAD --
MR. REZNECK: THEY DO NOT EXTEND TO THE VOTING.
JUDGE GARLAND: THEY DIDN'T EXTEND TO VOTING, BUT THEIR ARGUMENT IS
THAT YOU WERE NOT A COMPETENT BODY TO DO THAT, TO DO ANYTHING, BECAUSE
YOU'RE NOT REPRESENTATIVE AND YOU'RE NOT THE DELEGATEE OF SOMEBODY WHO
IS REPRESENTATIVE.
MR. REZNECK: THERE'S NOTHING SPECIFIED IN THE COMPLAINT OR IN THE
PLAINTIFFS' PAPERS THAT WOULD SAY THAT WE'VE DONE ANYTHING. THERE JUST
ISN'T ANYTHING HERE. IT'S TOTALLY DEVOID OF ANY SUCH ALLEGATION. AND
UNDER THOSE CIRCUMSTANCES --
JUDGE GARLAND: IT'S A PLEADING PROBLEM.
MR. REZNECK: WELL, IN PART IT SEEMS TO ME IT'S COMPARABLE TO THEIR
PICKING ANYBODY OFF THE STREET AND SUING THEM AS A DEFENDANT. IT SEEMS
TO ME THAT THERE JUST ISN'T A PARTICULARIZED INJURY.
LET ME GO ON TO THE SECOND POINT BECAUSE IT DOES BLEND IN, AND
THAT'S THE CAUSATION POINT, THE TRACEABILITY POINT, AND THAT ALSO, IT
SEEMS TO ME, IS CLEARLY LACKING HERE FOR SEVERAL REASONS.
THE COMPLAINT, AS I READ IT, IS THAT THE ADAMS' PLAINTIFFS HAVE
BEEN DENIED EQUAL PROTECTION OF THE LAW BY DISCRIMINATING BETWEEN THEM
AND EITHER RESIDENTS OF FEDERAL ENCLAVES, NOTABLY IN MARYLAND, OR
PERHAPS RESIDENTS OF THE RETROCEDED AREAS OF VIRGINIA. THAT'S ONE CLAIM.
AND THE SECOND IS THAT THEY'VE BEEN DENIED A REPUBLICAN FORM OF
GOVERNMENT.
ALL OF THOSE ALLEGED VIOLATIONS, IF THEY OCCURRED, TOOK PLACE LONG
BEFORE ANYBODY DREAMED THAT THERE WOULD BE A FINANCIAL AUTHORITY, AND
THERE CAN BE NOTHING TRACED TO THE FINANCIAL AUTHORITY.
THE EQUAL PROTECTION DISCRIMINATION THAT'S ASSERTED HERE GOES BACK
AT LEAST TO THE EVANS VS CORNMAN CASE WHICH WOULD BE IN 1970. THE
RETROCESSION TO VIRGINIA WAS 1846.
THE REPUBLICAN FORM OF GOVERNMENT CLAIM IT SEEMS TO ME HAS TO GO
BACK, I GUESS AT LEAST TO THE ORGANIC ACT IN 1801 THAT ORGANIZED A
DISTRICT GOVERNMENT WHICH IS ASSERTED NOT TO BE A REPUBLICAN FORM OF
GOVERNMENT. AT A MINIMUM, I THINK WOULD HAVE TO GO BACK TO 1874 WHEN
CONGRESS ABOLISHED THE TERRITORIAL GOVERNMENT THAT THEN EXISTED AND
CREATED THE COMMISSIONER SYSTEM THAT EXISTED FOR A HUNDRED YEARS.
EVERY ONE OF THESE EVENTS WAS LONG BEFORE THE FINANCIAL AUTHORITY
WAS CREATED, SO THERE'S NO CAUSATION THAT CAN EVEN BE CONCEIVED OF HERE.
SECONDLY, AS JUDGE KOLLAR-KOTELLY HAS OBSERVED IN A NUMBER OF THE
CASES THAT WE'VE HAD BEFORE HER INVOLVING PRISONER RIGHTS, THERE ISN'T
ANY CAUSATION WHERE THE AUTHORITY DOESN'T HAVE THE STATUTORY AUTHORITY
TO DO ANYTHING.
IN THOSE CASES YOU HAD D.C. PRISONERS COMPLAINING ABOUT THE
CONDITIONS OF CONFINEMENT, AND WE SHOWED THAT ON THE BASIS OF OUR
STATUTE, ON THE FACE OF OUR STATUTE, WE DIDN'T HAVE ANY AUTHORITY OVER
THE CONDITIONS OF CONFINEMENT, AND THAT WAS SUFFICIENT TO REMOVE THE
POSSIBLE ELEMENT OF CAUSATION OR TRACEABILITY. AND THOSE CASES WERE ALL
DISMISSED, AND PROPERLY SO, FOR LACK OF STANDING.
FINALLY, REDRESSABILITY. IT SEEMS TO ME CLEAR THAT THERE'S NO
ORDER HERE THAT I CAN CONCEIVE OF THAT COULD BE FASHIONED AGAINST THE
FINANCIAL AUTHORITY THAT WOULD REDRESS THE INJURIES OF WHICH THESE
PLAINTIFFS ARE COMPLAINING.
THERE'S NO AFFIRMATIVE ORDER THAT COULD REQUIRE THE FINANCIAL
AUTHORITY, OR IN SOME WAY MAKE IT POSSIBLE FOR THE FINANCIAL AUTHORITY
TO CONFER THE FRANCHISE ON THESE PLAINTIFFS TO VOTE FOR MEMBERS OF
CONGRESS BECAUSE WE SIMPLY DON'T HAVE THAT AUTHORITY.
AND I DON'T KNOW OF ANY OTHER REMEDY THAT COULD BE GIVEN HERE THAT
COULD POSSIBLY REDRESS THE INJURIES THAT ARE COMPLAINED OF.
THERE'S NO NEGATIVE OR PROHIBITORY ORDER I KNOW OF THAT WOULD
GRANT THEM EITHER A VOTE IN CONGRESS OR A REPUBLICAN FORM OF GOVERNMENT
AS THEY DEFINE IT.
SO I JUST THINK ON THIS ONE THEY ARE JUST OFF BASE. THEY SUED THE
WRONG PARTY. AND I OUGHT TO BE ABLE TO GO BACK AND SIT IN THE AUDIENCE.
JUDGE GARLAND: BEFORE YOU DO.
MR. REZNECK: I WASN'T EXPECTING TO LEAVE RIGHT AWAY.
JUDGE GARLAND: LET'S SAY CONGRESS HAD ANNOUNCED, INSTEAD OF A
CONTROL BOARD, A MILITARY GOVERNMENT FOR THE DISTRICT OF COLUMBIA, IS
YOUR POSITION THAT THE CITIZENS COULD NOT SUE THE MILITARY GOVERNMENT OF
THE DISTRICT OF COLUMBIA AND ASK US TO ENJOIN IT FROM TAKING ANY FURTHER
ACTIONS?
MR. REZNECK: WELL, IT MIGHT, DEPENDING ON WHETHER ANY ACTIONS HAD
BEEN TAKEN. IF ALL THEY DID WAS PASS A STATUTE SAYING, "WE'RE
CREATING A MILITARY AUTHORITY," THAT WOULDN'T CREATE STANDING IN
ANYBODY BECAUSE NOTHING WOULD HAVE HAPPENED.
JUDGE GARLAND: AND THE CONTROL BOARD HASN'T DONE ANYTHING IN THE
LAST FOUR YEARS?
MR. REZNECK: NOT TO THESE PLAINTIFFS. NOT TO THESE PLAINTIFFS.
JUDGE GARLAND: IT HASN'T DONE ANYTHING TO AFFECT CITIZENS IN THE
DISTRICT OF COLUMBIA?
MR. REZNECK: WE HAVE DONE A LOT, BUT NOTHING TO AFFECT THESE
PLAINTIFFS THAT WOULD CARVE THEM OUT FROM THE POPULATION AT LARGE, WHICH
I THINK IS A REQUIREMENT OF STANDING.
JUDGE GARLAND: SO IF THE MILITARY GOVERNMENT OF THE DISTRICT OF
COLUMBIA WERE TO SAY, "NO CITIZEN MAY BE ON THE STREETS AFTER SIX
O'CLOCK," NO CITIZEN COULD SUE BECAUSE THAT APPLIES TO ALL CITIZENS
OF THE DISTRICT OF COLUMBIA? IS THAT YOUR ARGUMENT?
MR. REZNECK: WELL, IT WOULD BE EASY ENOUGH, OBVIOUSLY, FOR
SOMEBODY TO BRING ON A CASE BY SIMPLY VIOLATING THAT PARTICULAR
PROVISION, AND THEN THERE WOULD BE NO ISSUE ABOUT STANDING AT ALL, SO
THE COURT WOULD NOT HAVE TO REACH OUT, IT SEEMS TO ME, IN THAT CASE.
JUDGE GARLAND: IF THE MILITARY GOVERNMENT WERE TO ANNOUNCE: WE'RE
GOING TO SPEND TAX DOLLARS IN THIS WAY RATHER THAN THAT WAY, WOULD IT
NOT BE CHALLENGE?
MR. REZNECK: WE'VE BEEN ACCUSED OF A LOT OF THINGS, BUT BEING A
MILITARY GOVERNMENT IS NOT ONE OF THEM.
JUDGE GARLAND: NO. AND I CERTAINLY DON'T MEAN TO SUGGEST THAT YOU
ARE, BUT YOU SEE WHERE I'M GETTING AT HERE.
THE QUESTION IS, I HAVE TO IMAGINE SOMETHING THAT CLEARLY WOULD
VIOLATE THE REPUBLICAN GUARANTEE CLAUSE, AND I ASSUME IF THERE IS
SOMETHING, THIS IS THE SORT OF THING THAT IS TALKED ABOUT IN THE CASES
IN MILITARY GOVERNMENT. THAT'S THE ONLY REASON I'M PICKING THAT AS AN
EXAMPLE.
BUT IF THERE WERE SUCH A THING AND IF WE WERE TO HOLD THAT IT IS
IN VIOLATION OF THAT CLAUSE, IT DOES SEEM -- I JUST WANT TO BE CLEAR.
YOUR ARGUMENT IS NOBODY COULD STOP IT?
MR. REZNECK: NO. I THINK, AS WAS HELD DURING THE CIVIL WAR, A
HABEAS CORPUS WOULD LIE AGAINST ANYBODY WHO IS HELD IN CUSTODY AS A
RESULT OF SUCH A --
JUDGE GARLAND: WELL, WE WOULDN'T BE ABLE TO ENJOIN THE GOVERNMENT,
THAT GOVERNMENT, FROM FURTHER ACTIVITY?
NORMALLY, THE POINT IS THAT WE CAN'T GET AT SOMEBODY LIKE THE
PRESIDENT OR A MEMBER OF CONGRESS. INSTEAD, THE WHOLE POINT OF THOSE
CASES, OF THE CASES CITED BY THE GOVERNMENT, ALSO IN DEFENSES, YOU HAVE
TO TALK TO AN AGENT.
THOSE PEOPLE HAVE A SPECIAL KIND OF RIGHTS, BUT THE PERSON TO
ENJOIN IS THE AGENT. HERE, THE MILITARY GOVERNMENT --
MR. REZNECK: I THINK WE'RE REALLY GETTING -- I THINK WE'RE GETTING
VERY FAR AFIELD, WITH ALL DUE RESPECT, BECAUSE THEN WE'RE INTRODUCING
THE CONGRESSIONAL POWER TO SUSPEND THE WRIT OF HABEAS CORPUS OR THE
PRESIDENTIAL POWER, WHOEVER IT IS.
JUDGE GARLAND: THE REASON WE ARE FAR AFIELD IS WE'RE SUPPOSED TO
ASSUME, IN A WAY WHICH OBVIOUSLY I UNDERSTAND YOU DON'T THINK IS
ENVISIONABLE, BUT WE'RE SUPPOSED TO ASSUME WE GO WITH THE OTHER SIDE ON
THE MERITS.
MR. REZNECK: YES. AND I SUGGEST THAT IF YOU ASSUME THAT -- PASSING
THE FIRST ELEMENT OF PARTICULARIZED INJURY, EVEN IF YOU ASSUME THAT, YOU
STILL CAN'T FIND CAUSATION AND YOU STILL CAN'T FIND REDRESSABILITY, IT
SEEMS TO ME. SO WITH AT LEAST TWO OF THE THREE ELEMENTS THE CASE HAS TO
FAIL.
I WOULD SUBMIT ON THAT BASIS UNLESS YOUR HONORS HAVE FURTHER
QUESTIONS.
JUDGE OBERDORFER: WE WILL HAVE A TEN-MINUTE RECESS AND RESUME AT
TEN AFTER TWELVE. (RECESS FROM 12:02 P.M. UNTIL 12:27 P.M.)
JUDGE OBERDORFER: MR. FERREN.
MR. FERREN: MAY IT PLEASE THE COURT. FOR THE RECORD, I'M JOHN
FERREN, THE CORPORATION COUNSEL FOR THE DISTRICT OF COLUMBIA.
AND IN THE TIME I HAVE I WOULD LIKE TO ADDRESS FIRST THE MERITS
AND THEN TURN TO PROCEDURAL ISSUES. IN DISCUSSING THE MERITS I'D LIKE TO
BEGIN WITH THE QUESTION JUDGE OBERDORFER ASKED ABOUT WHETHER WE ARE THE
PEOPLE OF MARYLAND AND VIRGINIA FOR PURPOSES OF ARTICLE 1, SECTION 2,
AND THEN MOVE ON TO JUDGE GARLAND'S QUESTION ABOUT THE SENATE AND INTO
SOME OF HIS QUESTIONS ABOUT OUR RELATIONSHIP TO MARYLAND IN THIS CASE,
TAKE UP A COUPLE OF THE POINTS THAT MR. TYLER MADE, AND THEN HOPEFULLY
GIVE A BRIEF ATTENTION TO THE PROCEDURAL ISSUES.
JUDGE OBERDORFER, ON JUNE 21, 1788, THE DATE THE CONSTITUTION WAS
RATIFIED, THE PEOPLE OF MARYLAND AND VIRGINIA WHO LIVED IN THE AREA
WHICH EVENTUALLY WOULD BECOME THE NATION'S CAPITAL HAD RECEIVED A
PRECIOUS RIGHT UNDER ARTICLE 1, SECTION 2, A RIGHT OF NATIONAL
CITIZENSHIP TO VOTE FOR VOTING REPRESENTATIVES IN THE UNITED STATES
CONGRESS.
THE SUPREME COURT SAID THAT THE CONSTITUTION CREATED A NEW RIGHT.
IT FORGED A CRITICAL DIRECT LINK BETWEEN THE PEOPLE -- NOT THE STATES --
THE PEOPLE AND THEIR NATIONAL GOVERNMENT. THIRTEEN YEARS LATER THAT
RIGHT TO VOTE WAS TAKEN AWAY. OUR BASIC ARGUMENT TODAY IS THAT THIS
REVOCATION WAS UNCONSTITUTIONAL AND THAT THAT RIGHT SHOULD BE RESTORED.
IN OTHER WORDS, LITERALLY, IT IS TRUE, IN ANSWER TO YOUR QUESTION,
BY VIRTUE OF BEING PEOPLE WHOSE RIGHTS WERE VESTED BEFORE THE CESSION OF
TERRITORY TO CREATE THE DISTRICT OF COLUMBIA, WE ARE THE PEOPLE OF
MARYLAND AND VIRGINIA. WE ARE THE PEOPLE OF THE SEVERAL STATES FOR
PURPOSES OF ARTICLE 1, SECTION 2. IT'S LITERALLY THE CASE, AND THE CASE
IS THAT SIMPLE.
NOW, MR. TYLER SAYS, "WELL, NO. WE LOOK AT THE WORD
'STATE'." A STATE IS A STATE IS A STATE, AND I AGREE WITH THAT
EXCEPT WHEN IT ISN'T.
AND AS WE KNOW UNDER CARTER, THE DISTRICT OF COLUMBIA V. CARTER,
THE SUPREME COURT HAS SAID THAT THE DISTRICT OF COLUMBIA CAN BE A STATE
DEPENDING ON CONTEXT. AND IT'S OUR POSITION THAT IN THIS CASE WE
DEFINITELY DO BELONG AS A STATE UNDER ARTICLE 1, SECTION 2.
NOW, THERE REALLY ISN'T MUCH MORE TO SAY ABOUT THAT FACT. THE
WHOLE PURPOSE OF ARTICLE 1, SECTION 2, WAS TO RECOGNIZE THOSE WHOSE
RIGHTS HAD VESTED. AND THERE IS NO PURPOSE THAT ANYONE HAS EVIDENCED AS
TO WHY WE SHOULD NOT BE CONSIDERED A STATE IN THIS CONTEXT.
IN THE FIRST PLACE, CONGRESS ITSELF HAS NO INTEREST IN KEEPING US
FROM VOTING. CONGRESS'S POWER UNDER THE DISTRICT CLAUSE WILL BE INTACT.
INDEED THE 1978 AMENDMENT THAT WAS PROPOSED TO GIVE US THE RIGHT TO VOTE
WAS ADOPTED BY CONGRESS. SO THE PLENARY AUTHORITY OF THE DISTRICT UNDER
THE DISTRICT CLAUSE WOULD NOT BE AFFECTED BY OUR VOTE. AND, SECONDLY,
THE STATES HAVE NO INTEREST IN KEEPING THE DISTRICT OF COLUMBIA FROM
HAVING A RIGHT TO VOTE.
AGAIN, AS THE U.S. TERMS LIMITS CASE IN THE SUPREME COURT SAID:
THERE IS A CRITICAL DIRECT LINK BETWEEN THE PEOPLE AND THEIR NATIONAL
GOVERNMENT. AND JUSTICE KENNEDY, IN PARTICULAR, IN THAT CASE SAID THAT
THE FRAMERS ESTABLISHED A FEDERAL RIGHT OF CITIZENSHIP, A RELATION
BETWEEN THE PEOPLE OF A NATION AND THE NATIONAL GOVERNMENT --
JUDGE GARLAND: MR. FERREN.
MR. FERREN: YES.
JUDGE GARLAND: IS THIS ARGUMENT YOU'RE MAKING NOW -- I JUST WANT
TO KEEP IN MY MIND THE TWO SIDES -- IS THIS AN ARGUMENT ABOUT THE
DISTRICT OF COLUMBIA AS A STATE OR IS THIS ABOUT VOTING IN MARYLAND?
MR. FERREN: AT THE PRESENT TIME I'M TALKING ABOUT VOTING UNDER
EITHER REMEDY THAT MIGHT BE SELECTED.
IN OTHER WORDS, WE'RE TALKING ABOUT THE NATIONAL RIGHT OF
CITIZENSHIP WITH WHICH THE STATES ARE NOT ALLOWED TO INTERFERE.
JUDGE GARLAND: BUT WHEN YOU SAY THAT THE STATES DON'T HAVE A
REASON --
MR. FERREN: YES. I'M TALKING ABOUT THE STATES OTHER THAN THE
DISTRICT OF COLUMBIA.
JUDGE GARLAND: RIGHT.
BUT THERE IS A CLAUSE IN THE CONSTITUTION, ARTICLE 4, SECTION 3 --
WHICH I GUESS YOU MIGHT DESCRIBE IT AS A SELFISH INTEREST OF THE STATES;
THAT IS, THEY DON'T WANT ANY MORE SENATORS TO DILUTE THEIR OWN -- WHICH
SAYS THAT NO NEW STATES SHALL BE FORMED OR ERECTED, NOR ANY STATE BE
FORMED BY PARTS OF STATES, WITHOUT THE CONSENT OF THE LEGISLATURE OF THE
STATES CONCERNED AS WELL AS CONGRESS.
WITH RESPECT TO THE ARGUMENT ABOUT THE CREATION OF -- A VIEW OF
D.C. AS A STATE, HOW CAN YOU ARGUE THAT THE CONSTITUTION DOESN'T SUGGEST
THAT MARYLAND, FROM WHICH IT WAS CREATED, MIGHT NOT HAVE A -- MAYBE NOT
HAVE A COMPELLING INTEREST, BUT MIGHT NOT HAVE AN INTEREST IN THEIR NOT
BEING A STATE IN THE DISTRICT OF COLUMBIA?
MR. FERREN: WELL, THE ONLY INTEREST A STATE COULD POSSIBLY HAVE IN
OUR NOT BECOMING A STATE, IF WE WERE CHARACTERIZED THAT WAY FOR PURPOSES
OF THE REMEDY, WOULD BE DILUTING THEIR IMPACT.
NOW, AS YOU KNOW, THE CONGRESS EVERY FEW YEARS --
JUDGE GARLAND: ISN'T THAT THE PURPOSE OF THIS CLAUSE?
MR. FERREN: I DON'T THINK SO.
JUDGE GARLAND: WHAT DO YOU THINK IT IS?
MR. FERREN: I THINK THE PURPOSE OF THAT CLAUSE IS SIMPLY TO MAKE
SURE THAT IN ANY INSTANCE WHERE A STATE IS TO BE CREATED IT REQUIRES THE
CONSENT.
FOR EXAMPLE, ARTICLE 5, THERE WAS A REFERENCE TO NO STATE CAN BE
DEPRIVED OF EQUAL SUFFRAGE IN THE SENATE. AND THE SENATE REPORT IN 1922,
WHEN THIS ISSUE CAME UP ONCE AGAIN ABOUT VOTING RIGHTS, SAID THE PLAIN
MEANING OF THIS PROVISION IS THAT NO STATE SHALL HAVE ANY GREATER
NUMERICAL REPRESENTATION IN THE SENATE THAN ANY OTHER STATE.
IT CANNOT MEAN THAT THE ALIQUOT SHARE OF THE LEGISLATIVE POWER
POSSESSED BY A STATE AT ANY GIVEN TIME CANNOT BE REDUCED IN THE
PROPORTION OF THAT POWER, WHICH WAS ORIGINALLY 2-TO-26 AND HAS BEEN
STEADILY DIMINISHED BY THE ADMISSION OF NEW STATES UNTIL IT IS NOW
2-TO-96. SO THE DILUTION FACTOR HAS NO RELEVANCE.
JUDGE GARLAND: BUT WHAT DO YOU DO ABOUT THE WORDS THAT THE STATE
HAS TO CONSENT IN HAVING A PART OF IT BECOME ANOTHER STATE?
MR. FERREN: I DON'T CONSIDER THE REMEDY IN THIS CASE MAKING THE
DISTRICT PART OF ANOTHER STATE.
JUDGE GARLAND: I SEE.
MR. FERREN: IT IS FOR THE LIMITED PURPOSE --
JUDGE GARLAND: THAT'S THE ADAMS' POSITION.
MR. FERREN: THAT'S RIGHT.
NOW, OUR REMEDY IS TO SAY THAT FOR THE LIMITED PURPOSE OF
EFFECTUATING THE REMEDY, NAMELY THE RIGHT TO VOTE IN THE HOUSE AND THE
SENATE, THE NATIONAL RIGHT OF CITIZENSHIP, THAT THE PEOPLE OF THE
DISTRICT OF COLUMBIA SHALL BE DEEMED CITIZENS OF THE STATE OF MARYLAND,
IF INDEED THAT IS THE SOLUTION, OR DEEMED CITIZENS FOR THIS LIMITED
PURPOSE OF THE STATE OF THE DISTRICT OF COLUMBIA.
JUDGE GARLAND: DEEMED CITIZENS OF THE STATE OF THE DISTRICT OF
COLUMBIA. YOU DON'T THINK ARTICLE 4 APPLIES TO THEM? THAT IS, IN THE
SENSE THAT MARYLAND WOULD HAVE TO CONSENT?
MR. FERREN: NOT AT ALL. LET ME GO BACK TO THE POINT I WAS MAKING
TO JUDGE OBERDORFER'S QUESTION.
AT THE TIME OF THE CESSION, IN THAT 10-YEAR PERIOD THAT WE'VE
TALKED ABOUT, THE ASSUMPTION WAS THAT THE RIGHTS OF THE PEOPLE WOULD BE
PRESERVED WHEN THE CESSION TOOK PLACE. YOU KNOW, THERE WAS NO INTENTION
TO DISENFRANCHISE THE DISTRICT.
JUDGE GARLAND: I UNDERSTAND, BUT THAT ARGUMENT IS THE MARYLAND
ARGUMENT; RIGHT?
MR. FERREN: NO. LET ME JUST STRESS IT THIS WAY.
THE CESSION ITSELF WAS INCOMPLETE IN THE SENSE THAT THOSE RIGHTS
WERE NOT PROTECTED SO THAT TO THAT EXTENT MARYLAND, WHICH DID NOT
PROTECT THE RIGHT BY INCLUDING THE RIGHT TO VOTE IN THE CESSION, AND THE
CONGRESS, BY NOT PROTECTING THE RIGHT UNDER THE DISTRICT CLAUSE,
ESSENTIALLY CAUSED A RIGHT TO EVAPORATE.
NOW, IN ORDER TO REMEDY THAT, IT IS SIMPLY A QUESTION OF GETTING
THE RIGHT OFFICERS TO ENROLL THE SENATORS OR REPRESENTATIVES THAT WE
MIGHT ELECT.
JUDGE GARLAND: THE HISTORY PART -- I'M SORRY TO INTERRUPT YOU. BUT
THE HISTORY PART SEEMS TO ME TO GO -- I UNDERSTAND THERE'S TWO PARTS TO
YOUR ARGUMENT AGAIN. ALTHOUGH I'M FOCUSING ON ONE, I'M NOT REJECTING THE
OTHER. I'M JUST TRYING TO FOCUS ON ONE.
UNDER THE HISTORY, PEOPLE WERE VOTING IN MARYLAND. THERE WAS NO
ARGUMENT THEY COULD VOTE IN NEW YORK BECAUSE THEY WERE CITIZENS OF THE
SEVERAL STATES. THE ONLY PLACE THEY COULD VOTE, IF THEY COULD VOTE
ANYWHERE, WAS MARYLAND.
HOW CAN WE DRAW FROM THAT A CONCLUSION THAT THEY CAN VOTE ANYWHERE
OTHER THAN MARYLAND? FROM THE HISTORY. I UNDERSTAND YOU HAVE ANOTHER SET
OF ARGUMENTS.
MR. FERREN: CERTAINLY FROM THE HISTORY. LET'S TAKE THE SITUATION
IN 1800.
AT THAT TIME THE PEOPLE OF THE AREA CALLED COLUMBIA WOULD VOTE IN
MARYLAND OR IN THE STATE OF VIRGINIA FOR PURPOSES -- THE LIMITED
PURPOSES OF THEIR VOTE FOR THE REPRESENTATIVE --
JUDGE GARLAND: NOT OF THEIR CHOICE. IT DEPENDS ON WHETHER THEY
LIVED IN THE VIRGINIA AREA OR THE MARYLAND AREA.
MR. FERREN: THAT'S CORRECT. THAT'S EXACTLY WHAT WOULD HAPPEN.
SO AT THAT POINT IN TIME THE ONLY SOLUTION WAS A STATE-TYPE
SOLUTION. INDEED, THEY HAD BEEN VOTING IN THOSE PLACES FOR TEN YEARS, OR
INDEED THIRTEEN YEARS. SO, AT THAT LIMITED PERIOD OF TIME THEY WERE
CITIZENS OF THOSE STATES, WHICH THEY HAD BEEN BEFORE THE CESSION, AND
THAT THOSE VOTING RIGHTS WOULD STAY INTACT.
NOW, IF YOU MOVED 200 YEARS AHEAD AND SAY: WELL, WHAT IS THE
PROPER SOLUTION -- WHICH WE DON'T ASK THIS COURT TO CREATE AT THIS TIME
-- ONE OF THEM MIGHT BE FOR ALL KINDS OF REASONS DEEMING THE DISTRICT OF
COLUMBIA, FOR PURPOSES OF THIS VOTING RIGHT ONLY, TO BE A STATE FOR
PURPOSES OF TWO SENATORS AND A REPRESENTATIVE.
ALTERNATIVELY, WE COULD HAVE THE REPRESENTATIVE ELECTED FROM THE
DISTRICT AND THE SENATORS PART OF THE TOTAL MARYLAND VOTE. THAT MAY BE A
POSSIBILITY.
NOW, THE INTERESTING THING HERE IS --
JUDGE GARLAND: RUN THAT ONE BY AGAIN.
MR. FERREN: PARDON ME?
JUDGE GARLAND: WOULD YOU RUN THAT ONE BY AGAIN? THAT ONE I MISSED
ALTOGETHER.
MR. FERREN: THE POPULATION OF THE DISTRICT OF COLUMBIA WOULD BE
INCLUDED WITH THE POPULATION OF MARYLAND FOR PURPOSES OF ELECTING
SENATORS FOR A COMBINED POPULATION. THAT'S ONE POSSIBLE REMEDY.
JUDGE GARLAND: AS PART OF THE SAME REMEDY, BUT THAT THE
REPRESENTATIVES BE FROM THE DISTRICT OF COLUMBIA AND NOT FROM MARYLAND?
MR. FERREN: THAT IS POSSIBLE.
I THINK THAT WE'VE SUGGESTED THAT THE REMEDY BE ONE THAT THIS
COURT DEFER IN THE FIRST INSTANCE WITH CONGRESS TO CREATE.
JUDGE GARLAND: BUT TO GET TO THE MARYLAND REMEDY WE WOULD HAVE TO
CONCLUDE THAT THE RESIDENTS ARE RESIDENTS OF MARYLAND, AT LEAST FOR
PURPOSES OF VOTING.
IN OTHER WORDS, YOU HAVE TO WIN THE MARYLAND ARGUMENT IN ORDER TO
GET ANY VOTES FROM MARYLAND SENATORS. ISN'T THAT RIGHT?
MR. FERREN: IT COULD BE AN EXPANDED MARYLAND. THAT WOULD BE THAT
SOLUTION, AND D.C. WOULD BE PART OF IT FOR THAT PURPOSE. IT WOULD BE
CALLED MARYLAND, D.C., AND THAT WOULD BE TRUE FOR THE SENATE AND FOR THE
HOUSE.
JUDGE GARLAND: AND FOR EVERYTHING ELSE?
MR. FERREN: NO, ABSOLUTELY FOR NOTHING ELSE. WE ARE FOCUSING ON
THEIR RIGHT TO VOTE, AND FOR THAT PURPOSE IT WOULD BE THE CASE.
LET ME GO ON TO ANSWER YOUR ORIGINAL QUESTION ABOUT THE SENATE. I
WOULD SAY THAT IN 1800 THERE WAS AN INDIRECT RIGHT OF THE PEOPLE TO VOTE
FOR THE SENATE THROUGH THE LEGISLATURE OF THE STATES.
AND TO THAT EXTENT, JUDGE GARLAND, THE CONSTITUTION FEDERALIZED
THE LEGISLATURE OF MARYLAND TO PERMIT DISTRICT RESIDENTS WHO HAD LIVED
THERE, JUST AS IT FEDERALIZED THE LEGISLATURE OF VIRGINIA TO LET THE
PEOPLE VOTE THERE FOR THE SENATE, AND THEY WOULD SIMPLY HAVE HAD SOME
ARRANGEMENT THAT CONGRESS WOULD HAVE PERMITTED TO SEND REPRESENTATIVES
TO THOSE LEGISLATURES, AGAIN FOR THE LIMITED PURPOSE OF VOTING FOR THE
SENATE.
NOW, IF THAT DOESN'T IMPRESS YOU --
JUDGE GARLAND: NO.
MR. FERREN: BUT THAT'S CONCEPTUALLY WHAT I WOULD COME DOWN AND
SAY.
JUDGE GARLAND: BUT, AGAIN, THAT'S THE MARYLAND ARGUMENT. YOU
COULDN'T MAKE THAT ARGUMENT -- I THOUGHT YOU WERE MAKING THAT ARGUMENT
WITH RESPECT TO THE D.C. SIDE, ALSO, BUT YOU'RE NOT. THAT IS, YOU'RE NOT
ARGUING THAT THERE WAS SOME LEGISLATURE IN D.C. FOR EXAMPLE, YOU
WOULDN'T BE ARGUING THAT -- THAT ARGUMENT DOESN'T WORK FOR, SAY, THROUGH
THE CITY COUNCIL OR SOMETHING LIKE THAT.
MR. FERREN: I THINK AT THE TIME -- YOU KNOW, WE'RE TAKING
JURISPRUDENCE AND PLAYING IT BACK OVER 200 YEARS. BUT AT THE TIME I
WOULD SAY THAT THE CONGRESS WOULD SET UP A LOCAL BODY FOR THE PURPOSE OF
ELECTING, DESIGNATING IN SOME APPROPRIATE WAY, REPRESENTATIVES TO GO TO
VIRGINIA OR TO MARYLAND TO SIT DOWN WITH A LEGISLATURE, A POOLED
SITUATION TO VOTE FOR THE SENATE.
THAT IS WHAT THEY SHOULD HAVE DONE AT THE TIME. NOBODY THOUGHT
ABOUT IT. AND IT'S TAKING -- AS I SAY, JURISPRUDENCE HAS EVOLVED OVER
THE LAST COUPLE OF HUNDRED YEARS AND FOCUSING BACK AND SAYING HOW WOULD
IT WORK.
WHAT I'M SAYING TO YOU IS IF THERE IS TO BE A MARYLAND SOLUTION AS
OPPOSED TO A DISTRICT SOLUTION, SOMETHING WE DON'T GET INTO AT ALL IN
THIS CASE, THAT YOU WOULD PULL THAT FORWARD AND SAY THAT'S HOW IT WOULD
BE DONE. YOU WOULD HAVE A POOLED SITUATION FOR PURPOSES OF THE HOUSE AND
THE SENATE.
NOW, INTERESTINGLY, THE DISTRICT AT THIS TIME AS A POPULATION,
IT'S ABOUT THE SIZE OF THE AVERAGE CONGRESSIONAL DISTRICT. IT MIGHT WELL
WORK OUT TODAY THAT THE DISTRICT OF COLUMBIA WOULD BE A DISTRICT FOR
THAT PURPOSE. THEORETICALLY, IT MIGHT NOT. BUT AT LEAST I THINK THE
MARYLAND SOLUTION WORKED BACK THEN, IT COMES FORWARD AND CONCEPTUALLY
WORKS TODAY, AND YET AT THE SAME TIME THERE IS NO REASON WHY THE
CONGRESS, OR THIS COURT ULTIMATELY, IF CONGRESS DIDN'T DO ANYTHING,
COULD NOT FASHION AN APPROPRIATE REMEDY THAT WOULD SAY UNDER ALL THE
CIRCUMSTANCES THE DISTRICT SHOULD HAVE A REPRESENTATIVE AND TWO
SENATORS. I'D LIKE TO GET TO THE SENATOR ISSUE A LITTLE FURTHER THAN
THAT.
THE SEVENTEENTH AMENDMENT CAME ALONG, AND AS YOU POINTED OUT,
JUDGE GARLAND, IT TALKS ABOUT SENATORS BEING ELECTED FROM THE STATE --
TWO SENATORS FROM EVERY STATE BY THE PEOPLE THEREOF.
AS MR. MILLER SAID, I THINK THAT CLEARLY INDICATES THAT THE
SEVENTEENTH AMENDMENT WAS INTENDED TO BRING TO THE PEOPLE THE VERY RIGHT
TO VOTE THAT ALREADY EXISTED FOR THEM ON THE HOUSE SIDE. AND THERE
WASN'T A PEEP IN CONGRESS OR ANYWHERE ELSE ABOUT THE DISTRICT OF
COLUMBIA IN CONNECTION WITH THE SEVENTEENTH AMENDMENT.
THE IDEA WAS TO UNIVERSALIZE AS MUCH AS WAS POSSIBLE AT THE TIME
THE SUFFRAGE ON THE SENATE SIDE AS IT WAS ON THE HOUSE. SO I'M SATISFIED
THAT EVEN IF YOU WEREN'T IMPRESSED BY THE FEDERALIZATION OF THE STATE
LEGISLATURE FOR PURPOSES OF A SENATE PARTICIPATION BACK IN 1800, WE'LL
SAY, I THINK IT IS CLEAR TO SAY THAT THE SEVENTEENTH AMENDMENT WAS A
RECOGNITION THAT WHOEVER HAD THE RIGHT TO VOTE IN THE HOUSE ALSO HAD THE
RIGHT TO VOTE IN THE SENATE; AND, THEREFORE, IF THE DISTRICT HAD THE
RIGHT TO VOTE IN THE HOUSE AS THE PEOPLE OF THE SEVERAL STATES THAT
PRECEDED THE CESSION, THEN THAT CARRIED FORWARD JUST AS WELL.
IF YOU'RE NOT IMPRESSED WITH THAT ARGUMENT, WE THEN WOULD GET, OF
COURSE, INTO QUESTIONS OF DUE PROCESS AND EQUAL PROTECTION OF THE LAW,
WHICH I THINK ARE VERY SEPARATE.
I WANT TO BE VERY CLEAR. OUR ARGUMENT IS BASED, I'LL SAY FOR THE
SAKE OF ILLUSTRATION, 90 PERCENT -- I'LL CALL IT A HUNDRED PERCENT. YOU
CAN DECIDE THIS CASE ON THE NATIONAL RIGHT OF CITIZENSHIP, A PRIVILEGE
-- ONE OF THE PRIVILEGES AND IMMUNITIES PROTECTED BY THE FOURTEENTH
AMENDMENT FROM STATE INTERFERENCE, AND A PRIVILEGE AND IMMUNITY THAT
CLEARLY THE FEDERAL GOVERNMENT CAN'T UNDERMINE. AND INDEED IF THERE IS
ANY DOUBT ABOUT A VEHICLE OF GETTING THERE, BOLLING VS SHARPE, THE DUE
PROCESS CLAUSE, WOULD CERTAINLY INCORPORATE THE FOURTEENTH AMENDMENT FOR
PRIVILEGES AND IMMUNITIES' PURPOSES AS MUCH AS IT DID THE EQUAL
PROTECTION CLAUSE.
YOU DON'T HAVE TO GET THERE. SO IT'S A VERY, VERY SIMPLE ARGUMENT.
IT TRACES US RIGHT STRAIGHT THROUGH. AND IT GETS TO THE POINT -- GETTING
BACK TO MR. TYLER'S INDICATION.
THE FACT THAT THE CONSTITUTION TALKS IN TERMS OF THE STATES... OF
COURSE, THE FRAMERS WERE CONCERNED ABOUT THE STATES. THEY WERE PUTTING
TOGETHER A CONFEDERATION OF STATES, AND AT THE TIME THEY CAME UP WITH A
DISTRICT CLAUSE THAT WAS A HYPOTHETICAL CITY NOBODY KNEW WHERE IT WOULD
BE. THERE WAS NOT ANY NOTICEABLE DISCUSSION OF THAT CLAUSE DURING THE
CONVENTION AND CERTAINLY NO DISCUSSION ABOUT A RIGHT TO VOTE.
WHEN EVERYBODY GOT OUT ON THE HUSTINGS DURING THE RATIFICATION
DEBATES, SOMEBODY SAID, "OH, HEY. WHAT ABOUT THE DISTRICT OF
COLUMBIA?"
PATRICK HENRY GETS UP IN THE VIRGINIA LEGISLATURE AND SAYS,
"I THINK WE OUGHT TO PROTECT THEIR RIGHT TO VOTE."
ALEXANDER HAMILTON DOES THE SAME THING IN NEW YORK. JAMES MADISON
IN THE FEDERALIST 43 SAID, "WELL, BASICALLY, THEIR RIGHTS WILL BE
PROTECTED BY THE STATES THAT CEDE THEM."
WELL, IT DIDN'T HAPPEN. AMENDMENTS, OF COURSE, WEREN'T ENTERTAINED
AT THE STATE RATIFICATION CONVENTIONS. BUT THE MAIN POINT IS THAT THERE
WAS NO DISCERNIBLE INTENT TO DISENFRANCHISE PEOPLE WHO ALREADY HAD BEEN
ENFRANCHISED. IT WAS AN OPEN QUESTION.
YOU CAN'T KNOCK THE FRAMERS FOR USING LANGUAGE THAT FROM THEIR
LIGHTS AT THE TIME PROTECTED PEOPLE. AND AS THE CASE OF O'DONOGHUE SAYS
WAS IRREVOCABLE. I WANT TO READ, JUST TO BE SURE WE GET THE POINT, FROM
O'DONOGHUE, WHICH IS ACTUALLY QUOTING DOWNS AGAINST BIDWELL.
IT SAYS: WE BEGAN, MEANING THE PEOPLE FROM MARYLAND IN THIS CASE
AND VIRGINIA. IT SAID: BECAUSE THE DISTRICT HAS BEEN A PART OF MARYLAND
AND VIRGINIA, QUOTE, THE CONSTITUTION HAD ATTACHED TO THE DISTRICT
IRREVOCABLY. THERE ARE STEPS WHICH CAN NEVER BE TAKEN BACKWARD. THE MERE
CESSION OF THE DISTRICT OF COLUMBIA TO THE FEDERAL GOVERNMENT
RELINQUISHED THE AUTHORITY OF THE STATES, BUT IT DID NOT TAKE OUT OF THE
UNITED STATES OR FROM UNDER THE AEGIS OF THE CONSTITUTION THE DISTRICT
OF COLUMBIA.
SO, IT'S A HISTORICAL ARGUMENT. IT'S A VERY SIMPLE ARGUMENT. IT'S
A NATURAL RIGHT OF CITIZENSHIP. NOW, IF THERE ARE NO OTHER QUESTIONS
ABOUT THE --
JUDGE OBERDORFER: DO YOU SEE ANY DIFFERENCE BETWEEN THE RIGHT,
SO-CALLED, TO HAVE ACCESS TO A FEDERAL COURT AND THE RIGHT TO VOTE?
O'DONOGHUE MEANING BEARING ON THE RIGHT TO ACCESS TO A FEDERAL COURT.
MR. FERREN: I THINK THE RIGHT TO VOTE IS A LOT MORE IMPORTANT. AND
YOU'RE GETTING INTO THE HEPBURN CASE, THE TIDEWATER TRANSFER CASE, AND I
WOULD LIKE TO ADDRESS THAT IMMEDIATELY, JUDGE OBERDORFER.
MR. TYLER REFERRED TO THE HEPBURN CASE THAT JOHN MARSHALL DECIDED
BACK IN 1805 IN WHICH HE SAID THE DISTRICT OF COLUMBIA IS NOT A STATE
FOR PURPOSES OF FEDERAL DIVERSITY OF CITIZENSHIP.
AND IT'S INTERESTING. JOHN MARSHALL I GUESS DISAGREED WITH PATRICK
HENRY, JAMES MADISON AND ALEXANDER HAMILTON. HE WAS NOT AT THE
CONVENTION. HE WAS AT THE VIRGINIA RATIFYING CONVENTION. BUT IT'S
INTERESTING THAT, YES, HE DID HAVE THAT VIEW.
I THINK THAT DECISION, THOUGH, WAS ULTIMATELY OVERRULED, AND IN
THE TIDEWATER TRANSFER CASE IN 1949, BY A 5-TO-4 DECISION, THE RESULT OF
THAT CASE WAS OVERRULED. AND IT'S INTERESTING ONLY TWO OF THE JUSTICES
CALLED THE DISTRICT OF COLUMBIA A STATE FOR THAT PURPOSE. THREE OF THE
JUSTICES USED THE DISTRICT CLAUSE TO CREATE DIVERSITY OF CITIZENSHIP.
BUT THE FACT IS A FEW YEARS LATER IN THE SEMINOLE TRIBES' CASE AND
VERLINDEN CASE THE SUPREME COURT MADE CLEAR THAT ARTICLE 3 ITSELF WAS
THE LIMIT OF JURISDICTION OF THE FEDERAL COURTS, WHICH MEANT THAT
JUSTICE JACKSON'S MAJORITY OPINION ESSENTIALLY WAS EVISCERATED AND THAT
THE ONLY BASIS FOR ALLOWING DIVERSITY OF CITIZENSHIP WAS NOMINAL
STATEHOOD. BUT THE POINT IS --
JUDGE GARLAND: DOES THAT OPEN UP THE POSSIBILITY THAT WE WILL SOME
DAY HAVE A CASE WHERE SOMEBODY ARGUES THAT THE DISTRICT OF COLUMBIA IS
NOT COVERED BY DIVERSITY? THAT ISSUE HASN'T BEEN DECIDED SINCE SEMINOLE
--
MR. FERREN: I THINK THAT COULD BE OPENED UP AGAIN. I DOUBT THAT
THE COURT WOULD GO TO THAT.
FOR EXAMPLE, TO ANSWER JUDGE OBERDORFER'S QUESTION, I THINK THE
RIGHT OF DIVERSITY OF CITIZENSHIP IS A VERY IMPORTANT RIGHT. I WOULD BE
ASTONISHED IF THE SUPREME COURT DID NOT RECOGNIZE THE DISTRICT AS A
STATE FOR THAT PURPOSE.
BUT THE POINT I WANT TO MAKE IS THAT IF THE SUPREME COURT USES THE
DISTRICT OF COLUMBIA AS A STATE FOR THAT PURPOSE, THEN ALL THE MORE
REASON TO CONSIDER US A STATE WITHIN THE MEANING OF ARTICLE 1, SECTION
2, FOR PURPOSES OF THE FUNDAMENTAL RIGHT TO VOTE.
JUDGE GARLAND: ALL I'M ASKING IS SO FAR THE SUPREME COURT HASN'T.
MR. FERREN: HASN'T?
JUDGE GARLAND: HASN'T CONSIDERED THE DISTRICT OF COLUMBIA A STATE
FOR DIVERSITY PURPOSES.
MR. FERREN: NO. ONLY TWO JUSTICES HAVE. I AM PREDICTING THEY WOULD
BECAUSE THE SUPREME COURT HAS SAID THAT THE RATIONALE THAT JUSTICE
JACKSON USED FOR THE THREE JUDGES IN THE PLURALITY NO LONGER WORKS.
NOW, I CAN'T JUST IMAGINE. YOU KNOW, AS JUDGE OBERDORFER POINTED
OUT, SOMETHING AS SIMPLE AS THE FULL FAITH IN CREDIT CLAUSE, THE SUPREME
COURT, JUSTICE BRANDEIS, HAS SAID THE DISTRICT IS A STATE FOR THAT
PURPOSE, EVEN THOUGH THE FULL FAITH AND CREDIT CLAUSE IN ARTICLE 4
REFERS ONLY TO THE STATES.
I THINK IN OUR BRIEF WE POINTED OUT 500 INSTANCES WHERE CONGRESS
CONSIDERS THE DISTRICT A STATE, BECAUSE IT DOESN'T WORK ANY OTHER WAY.
AND WE ARE TALKING ABOUT THE FUNDAMENTAL RIGHT TO VOTE, WHICH THE COURT
HAS CALLED FOR A HUNDRED YEARS, AND IT KEEPS QUOTING IT OVER AND OVER
FROM YICK WO, PRESERVATIVE OF ALL RIGHTS.
I MEAN, THE CONSENT OF THE GOVERNMENT IS THE PREDICATE FOR THE
CONSTITUTION ITSELF. SO THAT IF THE DISTRICT OF COLUMBIA IS A STATE FOR
PURPOSES OF FULL FAITH AND CREDIT, FOR ALL PRACTICAL PURPOSES THE STATE
FOR PURPOSES OF DIVERSITY OF CITIZENSHIP -- AND OH, YES, CALLAN VS.
WILSON, LONG AGO THE DISTRICT OF COLUMBIA IS A STATE FOR PURPOSES OF
TRIAL BY JURY, AND THIS CIRCUIT IN THE DUNN CASE HAS SAID, YES, THAT
EXTENDS TO THE SPEEDY TRIAL RIGHTS AND THE PUBLIC TRIAL RIGHTS OF THE
SIXTH AMENDMENT, IT IS CLEAR THAT THE DISTRICT IS A STATE IN THAT KIND
OF CONTEXT.
CAN YOU IMAGINE WHAT THE FRAMERS WOULD THINK TODAY, 500,000
PEOPLE, CITIZENS OF OUR NATION'S CAPITAL, NOT VOTING? THERE IS NO MORE
FUNDAMENTAL RIGHT IN THIS COUNTRY.
NOW, I'D LIKE TO MOVE ON VERY BRIEFLY TO SAY THAT, JUST TO
RECAPITULATE, NATIONAL RIGHT OF CITIZENSHIP JUST GOES RIGHT STRAIGHT
THROUGH, NOTHING ELSE, AND BUTTRESS THAT BY THE CONTEXT, THE PRAGMATIC
CONTEXTUAL ANALYSIS UNDER DISTRICT OF COLUMBIA AGAINST CARTER WHERE THE
SUPREME COURT HAS SAID YOU CAN BE A STATE EVEN WITHOUT ALL THAT HISTORY.
THIRD, LET'S MOVE ON TO DUE PROCESS AND EQUAL PROTECTION OF THE
LAWS. THE FUNDAMENTAL RIGHT TO VOTE I THINK FITS THE VERY DEFINITION OF
SUBSTANTIVE DUE PROCESS, NAMELY THE DENIAL OF A FUNDAMENTAL RIGHT THAT
IS DEEPLY ROOTED IN THIS NATION'S HISTORY AND TRADITION, A RIGHT THAT IS
IMPLICIT IN THE CONCEPT OF ORDERED LIBERTY. WHAT RIGHT COULD FIT THAT
BETTER?
YOU KNOW, DUE PROCESS GIVES US DUE PROCESS PROTECTION FOR
EVERYTHING FROM TRIAL BY JURY IN THE STATES TO EXCLUSION OF
ILLEGALLY-SEIZED EVIDENCE, THE RIGHT TO CONFRONT WITNESSES, AND PERSONAL
RIGHTS TO MARRY, TO BRING UP OUR CHILDREN, TO GET INVOLVED WITH
CONTRACEPTION, RIGHT TO ABORTION. ALL OF THESE ARE TERRIBLY IMPORTANT
RIGHTS. BUT THE RIGHT TO VOTE, THAT HAS TO FIT EVEN HIGHER.
JUDGE OBERDORFER: MR. FERREN, ONE OF THE PROBLEMS IS -- AND YOU
ALL ARE DODGING IT, I THINK -- IS THAT NONE OF THE EXERCISE OF THOSE
RIGHTS REQUIRES AN APPARATUS LIKE AN ELECTION PROCESS. YOU'VE GOT A
RIGHT FLOATING AROUND THAT NEEDS TO HAVE A PLACE TO LAND. IT'S
ENCAPSULATED IN THE WORD REDRESSABILITY. I DON'T KNOW WHETHER YOU'RE
GOING TO GET TO THAT. BUT ISN'T THAT A DIFFERENCE?
MR. FERREN: NOT AT ALL. IN FACT, I'VE GLAD YOU'VE RAISED THAT,
BECAUSE I CAN SOLVE THAT PROBLEM PROBABLY IN 24 HOURS WITH THE COUNSEL
THAT'S IN LARGE MEASURE SITTING OVER HERE. WHAT YOU'RE REALLY GETTING
INTO IS A RIPENESS ISSUE IN A SENSE.
I'D LIKE TO START ON REDRESSABILITY BECAUSE I THINK THAT THAT WILL
CLARIFY A LOT OF THIS, AND STANDING GENERALLY, CAUSATION.
JUDGE GARLAND: YOU DON'T HAVE TO TALK ABOUT CAUSATION SINCE NOBODY
SEEMS TO BE OBJECTING TO CAUSATION.
MR. FERREN: WONDERFUL.
JUDGE GARLAND: I DON'T MEAN US. I MEAN THE DEFENDANTS.
MR. FERREN: THAT'S TRUE, BUT THEY ARE RELATED.
UNDER OUR THEORY OF THE CASE, WHICH AS YOU POINTED OUT MUST BE
TAKEN AS TRUE, WE HAVE A RIGHT UNDER THE CONSTITUTION THAT IS
SELF-EXECUTING.
IT DOESN'T TAKE CONGRESS TO DO ANYTHING LEGALLY. IT'S NOT PART OF
OUR THEORY. AND UNDER THAT SELF-EXECUTING THEORY THE SERGEANT-AT-ARMS OF
THE HOUSE AND SENATE MUST LET OUR REPRESENTATIVES IN THE DOOR AFTER THE
SECRETARY OF COMMERCE HAS DONE AN APPORTIONMENT WHICH BRINGS OUR
REPRESENTATIVES HERE.
THE CLERK OF THE HOUSE HAS TO RECORD THE VOTE, THE ROLL. THE
SECRETARY OF THE SENATE HAS TO DO THE SAME THING AND RECORD OUR QUORUM,
AS PART OF THE QUORUM, RECORD OUR VOTES AND PAY US. I MEAN, THAT'S ALL
THAT IS REQUIRED UNDER OUR THEORY OF THE CASE.
JUDGE GARLAND: HOW DOES THIS WORK ON THE MARYLAND THEORY?
MR. FERREN: PARDON ME?
JUDGE GARLAND: HOW DOES THIS WORK ON THE MARYLAND SIDE OF THE
THEORY? I UNDERSTAND HOW IN 24 HOURS THE DC ELECTION BOARD WILL BE HAPPY
TO HOLD THESE ELECTIONS.
MR. FERREN: WELL, THE MARYLAND ELECTION BOARD ALREADY HAS THE
APPARATUS. IN THE DISTRICT WE WOULD HAVE TO SET UP --
JUDGE GARLAND: WHAT IF MARYLAND DECLINED TO PERMIT SOMEBODY TO
VOTE WHO IS A RESIDENT OF THE DISTRICT OF COLUMBIA?
MR. FERREN: I THINK IT WOULD A VIOLATION OF THE REMEDY. WE ARE
SKIPPING AROUND HERE A BIT, BUT LET'S SHIFT TO THAT.
I THINK THAT BECAUSE THE CESSION WAS INCOMPLETE MARYLAND,
THEORETICALLY, HAS NEVER GIVEN UP THE RIGHT OF DISTRICT CITIZENS TO VOTE
IN MARYLAND, THEORETICALLY.
AND I THINK THAT THE ORDER OF THIS COURT, IF THE CONGRESS HASN'T
SOLVED THE PROBLEM YET, THE ORDER OF THIS COURT CAN SIMPLY SAY THAT THE
ELECTION OFFICIALS SHALL WELCOME DISTRICT RESIDENTS OR WELCOME THEM INTO
THE DISTRICT OF COLUMBIA VOTING PRECINCTS AND THE RESULTS WILL THEN BE
TRANSMITTED TO CONGRESS.
JUDGE GARLAND: IF A THREE-JUDGE COURT IN CALIFORNIA SAID THE
ELECTION BOARD OF THE DISTRICT OF COLUMBIA SHALL FROM NOW ON WELCOME
INTO THE VOTING IN THE DISTRICT OF COLUMBIA ALL RESIDENTS OF CALIFORNIA,
DO YOU THINK THAT THE D.C. ELECTION BOARD WOULD FOLLOW THAT ORDER?
MR. FERREN: NOT AT ALL, OTHER THAN THEY WOULD APPEAL IT BECAUSE
THERE IS ABSOLUTELY NO NEXUS WHATSOEVER.
JUDGE GARLAND: BUT DO YOU THINK, IS MARYLAND BOUND TO FOLLOW AN
ORDER OF THESE THREE JUDGES?
MR. FERREN: I DON'T SEE WHY NOT.
JUDGE GARLAND: BECAUSE THE STATE OF MARYLAND IS NOT WITHIN OUR
JURISDICTION, UNLESS YOU THINK THAT THIS DISTRICT IS MARYLAND.
MR. FERREN: NO, NO. WELL, FIRST OF ALL, THE ORDER RUNS TO THE
FEDERAL OFFICIALS. I'M NOT SURE THAT MARYLAND CAN SOLVE THIS PROBLEM.
AND INDEED, AS JUDGE OBERDORFER INDICATED, IF THAT WERE PART OF THE
EVENTUAL REMEDY, SURE, YOU MIGHT WANT TO IMPLEAD OR CERTIFY MARYLAND TO
COME IN AND SPEAK ABOUT IT, BUT I DON'T THINK THAT THEY ARE NECESSARY TO
THIS PARTICULAR REMEDY.
IF MARYLAND DOES NOT GO ALONG WITH IT, THEN YOU SIMPLY HOLD THE
ELECTION HERE AND CERTIFY THOSE RESULTS, AND SOMEBODY IN THE HOUSE OR
THE SENATE CAN DO MATHEMATICS.
JUDGE GARLAND: IT WOULDN'T BE QUITE SO AUTOMATIC.
MR. FERREN: PARDON ME?
JUDGE GARLAND: IT WOULDN'T BE QUITE SO AUTOMATIC UNDER THOSE
CIRCUMSTANCES. WHO WOULD DRAW THE BOUNDARIES OF THE HOUSE OF
REPRESENTATIVES' DISTRICTS?
I UNDERSTAND VERY WELL THE ARGUMENT THAT YOU'RE MAKING WITH
RESPECT TO THE DISTRICT AND THE AUTOMATIC WAY IN WHICH IT FOLLOWS. AND
AS THE HOUSE COUNSEL CANDIDLY PUT IT, WE BASICALLY, YOU KNOW, WE GET
THESE RESULTS AND WE FOLLOW THEM.
BUT IF MARYLAND IS RECALCITRANT AND, FOR EXAMPLE, DOESN'T DRAW A
CONGRESSIONAL DISTRICT, THEN HOW DO WE KNOW HOW TO ADD UP THE VOTES AND
WHO GETS THE VOTE FOR WHICH REPRESENTATIVES?
MR. FERREN: I HAVE SEVERAL RESPONSES.
FIRST OF ALL, WE'RE NOT THERE YET AND WE DON'T NEED TO BE. BUT
ASSUMING WE'RE THERE -- I DON'T WANT TO DUCK THE QUESTION --
JUDGE GARLAND: THE REASON WE HAVE TO FIGURE THIS OUT -- YOU KNOW,
WE HAVE TO FIGURE OUT -- I UNDERSTAND WE MAY NOT HAVE TO DECIDE TO ORDER
THEM NOW, BUT WE STILL HAVE TO DECIDE WHETHER WE WOULD HAVE THE POWER TO
DO THAT.
MR. FERREN: A DECLARATORY JUDGMENT OF THIS COURT WOULD SPELL OUT
EXACTLY WHAT HAS TO HAPPEN.
IF MARYLAND SAYS NO, THEN THAT COURT, PRESUMABLY, UPON REVISITING
IT OR EVEN IN THE ORIGINAL ORDER, COULD SAY: IF THEY DEFAULT ON THIS,
THEN THE DISTRICT OF COLUMBIA SIMPLY HOLDS THE ELECTION WITHIN ITS
BORDERS AND SENDS THE RESULTS AND THE HOUSE AND THE SENATE CAN ADD THEM
UP.
AND IF THE DISTRICT REPRESENTATIVE --
JUDGE GARLAND: HOW WOULD WE DECIDE ABOUT THE APPORTIONMENT ISSUE
WITH RESPECT TO CONGRESSIONAL DISTRICTS? WE STILL HAVE THE ONE PERSON,
ONE VOTE RULE. AND IF THE RESIDENTS OF THIS DISTRICT ARE CONSIDERED
RESIDENTS OF MARYLAND, THE DISTRICTS OF THIS COMBINED ORGANIZATION
ENTITY HAVE TO BE APPORTIONED ONE PERSON, ONE VOTE. HOW WOULD WE FIGURE
THAT OUT?
MR. FERREN: WELL, IN A WORST-CASE SCENARIO THE COURT COULD APPOINT
A SPECIAL MASTER TO DO IT. I DON'T SEE WHY IT COULD NOT DO THAT SHORT
OF, AS I SAY, A DEFAULT SITUATION LIKE THAT.
I'D LIKE TO THINK THAT THE CONGRESS ITSELF WOULD COME UP WITH A
REMEDY THAT WOULD BAIL THE COURT OUT OF THAT, BUT I SEE NO REASON WHY
THAT COULD NOT BE DONE.
AS I MENTIONED EARLIER, THE POPULATION OF THE DISTRICT OF COLUMBIA
RIGHT NOW APPROXIMATES THE AVERAGE SIZE OF A CONGRESSIONAL DISTRICT. I
UNDERSTAND THE THEORETICAL PROBLEM THERE, BUT I THINK THERE IS AN ANSWER
THAT WORKS.
AND I WANT TO GET BACK TO JUDGE OBERDORFER'S QUESTION. THE BOARD
OF ELECTIONS IN ETHICS DOES NOT HAVE A LAW ON THE BOOKS RIGHT NOW THAT
WOULD GEAR US ALL UP FOR A FULL-BLOWN SENATORIAL ELECTION IN ADDITION TO
A HOUSE ELECTION, BUT THAT KIND OF LEGISLATION COULD BE LITERALLY
ACCOMPLISHED OVERNIGHT.
NOBODY HERE HAS RAISED ANY SERIOUS QUESTION OF RIPENESS BECAUSE IT
WOULD BE FUTILE TO DO ALL OF THAT PRIOR TO THE RULING OF THIS COURT.
JUDGE OBERDORFER: LET ME ASK YOU THIS. DO YOU SEE ANY DIFFERENCE
BETWEEN THE ELECTION OF SENATOR AND THE ELECTION OF A REPRESENTATIVE?
IN OTHER WORDS, SUPPOSE WE WERE TO DECIDE THAT: WELL, WE CAN SEE
YOUR WAY HOME WITH RESPECT TO A REPRESENTATIVE IN CONGRESS, BUT WE DON'T
SEE YOUR WAY HOME WITH RESPECT TO A SENATOR.
MR. FERREN: JUDGE OBERDORFER, WE HAVE THE RIGHT TO VOTE FOR THE
SENATE AS WELL AS FOR THE HOUSE.
ONE REMEDY COULD BE CONGRESS COULD SAY, THIS COURT ULTIMATELY
COULD SAY, THAT UNDER ALL THE CIRCUMSTANCES THE DISTRICT OF COLUMBIA
ITSELF IS ENTITLED TO TWO SENATORS AND A REPRESENTATIVE. THAT WOULD
CERTAINLY TAKE CARE OF US. BUT THE COURT ALSO COULD SAY: NO. FOR
PURPOSES OF ELECTING THE SENATE IT IS A COMBINED MARYLAND AND DISTRICT
PROPOSITION.
THAT DOESN'T ADD ANY SENATORS TO THE HOUSE, BUT IT DOES -- OR TO
THE CHAMBER, BUT IT DOES PRESERVE OUR RIGHT TO VOTE FOR THE SENATE.
SO, THERE IS TRULY NO DIFFERENCE, AND YOU DON'T HAVE TO DECIDE
WHAT THE REMEDY WOULD BE. BUT IF YOU WANT TO KEEP FOCUSING ON THE
MARYLAND REMEDY IN THAT RESPECT IT'S EASIER WHEN IT COMES TO THE SENATE.
JUDGE OBERDORFER: JUST REMEMBER WHAT JUDGE GARLAND SAID. WE HAVE
TO SATISFY OURSELVES THAT WE'RE NOT ENGAGED IN AN EXERCISE OF FUTILITY.
MR. FERREN: WELL, I HOPE I HAVE PROVIDED ANSWERS TO HOW THAT CAN
BE ACCOMPLISHED. AND, YOU KNOW, IN THESE VOTING RIGHTS' CASES ALL OVER
THE SOUTH AND ELSEWHERE IN THE COUNTRY THE COURTS RETAIN BROAD EQUITABLE
AUTHORITY. THEY DEFER TO THE LEGISLATURE TO COME UP WITH SOLUTIONS. THE
LEGISLATURE COMES UP WITH SOLUTIONS.
THEY ARE REVIEWED BY THE COURTS. SOMETIMES THEY ARE ACCEPTED,
SOMETIMES THEY ARE NOT. AND SOMETIMES THE COURT ULTIMATELY, TO VINDICATE
THE RIGHT TO VOTE, HAS TO GET VERY MUCH ENMESHED IN WHAT I CALLED
SPECIAL MASTER ADMINISTRATIVE TYPE OF THINGS.
BUT BEAR IN MIND, IN REYNOLDS VS SIMS, WHICH INVOLVED
REAPPORTIONMENT OF STATE LEGISLATURES, THE SUPREME COURT IN 1964, I
BELIEVE IT WAS, SAID THAT DISCRIMINATION BASED ON RESIDENCE IS AS
INVIDIOUS AS DISCRIMINATION BASED ON RACE.
WE ARE TALKING ABOUT THE MOST SERIOUS FORM OF DISCRIMINATION WHEN
THE SUPREME COURT IS TALKING THAT WAY, AND WE AS A DISTRICT ARE
DISCRIMINATED AGAINST ON THE BASIS OF RESIDENCE.
JUDGE OBERDORFER: YOU SPEAK OF THESE REAPPORTIONMENT DECISIONS
RELATING TO STATES. GIVE ME ONE WHERE THE COURT TOOK ON CONGRESS.
MR. FERREN: THERE IS NONE. WE'RE ASKING YOU TO DO --
JUDGE OBERDORFER: IS THERE A DIFFERENCE?
MR. FERREN: I DON'T THINK THERE IS.
I MEAN, THERE CANNOT BE -- WHEN THE FEDERAL GOVERNMENT ITSELF IS
DEPRIVING THE DISTRICT OF COLUMBIA OF THE RIGHT TO VOTE, DEPRIVING US OF
OUR NATIONAL RIGHT OF CITIZENSHIP, THEY ARE THE ONES THAT ARE DOING IT
TO US, AND THEY CAN USE THE DISTRICT CLAUSE TO SOLVE ALL THESE PROBLEMS.
AND IF THEY DON'T DO IT, THEN YOU SIMPLY ORDER THE OFFICIALS OF
THE HOUSE AND THE SENATE TO CARRY OUT, TO IMPLEMENT THE RIGHTS, AND
THESE RIGHTS ARE VERY EASILY SPELLED OUT.
BY THE WAY, I WANT TO ADD THAT IN OUR BRIEF WITH REGARD TO THE
SENATE OFFICIALS WE NEGLECTED TO INCLUDE THE FACT THAT THE SENATE
SECRETARY ALSO, JUST LIKE THE CLERK OF THE HOUSE, IS IN CHARGE OF
CREATING THE ROLL -- IN OTHER WORDS, ACCEPTING THE CERTIFIED CREDENTIALS
OF THE SENATORS -- TAKING ASCERTAINMENT OF THE QUORUM AND RECORDING THE
VOTES. IT DOES IT THROUGH BILL CLERKS AND LEGISLATIVE CLERKS. AND I DO
HAVE VARIOUS CITATIONS THAT WOULD SPELL ALL THAT OUT. I THINK MAYBE ONE
OF THE EASIEST WAYS OF GIVING THAT TO YOU IS SIMPLY TO SAY THAT THERE IS
A BOOK THAT CAME OUT CALLED THE CONGRESSIONAL YELLOW BOOK, 1999 SPRING
-- THAT'S PRETTY CURRENT -- PAGE 823.
BUT MY POINT THAT I WANT TO MAKE IS THAT ON THE SENATE SIDE THE
SECRETARY DOES AS MUCH AS THE CLERK OF THE HOUSE AND THE CHIEF
ADMINISTRATIVE OFFICER. SO THAT IN TERMS OF THOSE ISSUES OF
REDRESSABILITY THERE SHOULD BE NO PROBLEM.
AND THE CASE THAT I WOULD CITE TO YOU IS SWAN AGAINST CLINTON FROM
THE D.C. CIRCUIT, WHICH I THINK CLEARLY PROVIDES REDRESSABILITY AS
DIRECTED TO OFFICIALS WHO ARE NOT MEMBERS OF THE HOUSE OR THE SENATE
THEMSELVES.
JUDGE OBERDORFER: NOW, NOBODY HAS ADDRESSED THE QUESTION OF
PRUDENTIAL CONSIDERATIONS. COULD YOU FORESEE A SITUATION WHERE THE
SUPREME COURT, ACTING AFTER WE HAVE, DETERMINES THAT THE DISTRICT IS
ENTITLED ONE WAY OR ANOTHER TO TWO MORE SENATORS, AND THE SENATE ADOPTS
A RESOLUTION DIRECTING ITS OFFICERS NOT TO ADMIT THOSE TWO SENATORS?
HAVE A PRETTY SERIOUS CONSTITUTIONAL CRISIS.
MR. FERREN: I WOULD SAY SO.
JUDGE OBERDORFER: NOW, TO WHAT EXTENT DOES THAT READ ON SO-CALLED
PRUDENTIAL STANDING?
MR. FERREN: JUDGE OBERDORFER, I DON'T THINK THAT WORST-CASE
SCENARIO SHOULD DETER THIS COURT OR THE SUPREME COURT, WHICH IS YOUR
HYPOTHETICAL, FROM DOING WHAT IS REQUIRED BY THE LAW.
REMEMBER BACK IN 1954 THE CONGRESS AND THE SUPREME COURT -- SAY
THE SUPREME COURT ISSUED A VERY IMPORTANT DECISION INVOLVING RACE WHERE
THE QUESTION CAME UP, CAN WE POSSIBLY ENFORCE IT? AND IT TOOK A LOT.
I CANNOT BELIEVE THAT WE WOULD GO THROUGH THAT KIND OF THING AGAIN
ON THE RIGHT TO VOTE IN THE NATION'S CAPITAL.
JUDGE OBERDORFER: THAT WASN'T AN ENFORCEMENT AGAINST THE CONGRESS
OF THE UNITED STATES.
MR. FERREN: IT WAS NOT. IT WAS NOT.
JUDGE OBERDORFER: IS THERE A DIFFERENCE BETWEEN THAT AND, SAY,
ENFORCING AGAINST MISSISSIPPI?
MR. FERREN: I THINK THIS WOULD BE EASIER THAN ENFORCEMENT AGAINST
MISSISSIPPI. I DO NOT THINK THAT THE CONGRESS OF THE UNITED STATES -- IF
THE SUPREME COURT OF THE UNITED STATES SAID, "THE DISTRICT OF
COLUMBIA SHALL HAVE A VOTE IN THE HOUSE AND THE SENATE," I DO NOT
BELIEVE THE CONGRESS OF THE UNITED STATES WOULD SAY NO TO THAT. AND IF
IT DID, I THINK WE WOULD HAVE TO FIND THAT OUT. WE MIGHT GET OUT THE
DISTRICT MILITIA.
IN ANY EVENT, IT'S A FAIR QUESTION, BUT I DON'T THINK IT'S THE
KIND OF QUESTION THAT HAS DETERRED COURTS FROM ISSUING APPROPRIATE
RELIEF. AND, REMEMBER, THIS RELIEF IS GOING AGAINST THE OFFICIALS, IT'S
NOT GOING AGAINST CONGRESS AS SUCH.
JUDGE OBERDORFER: I STATED A CASE WHERE THE OFFICIALS ARE CAUGHT
BETWEEN THE ROCK AND THE HARD PLACE. WE'RE TELLING THEM TO DO ONE THING
AND THE PEOPLE WHO PAY THEIR SALARIES ARE TELLING THEM TO DO SOMETHING
ELSE.
MR. FERREN: THAT'S RIGHT, AND THEY WOULD DO WHAT THE COURT SAYS.
JUDGE OBERDORFER: THAT'S CORRECT.
MR. FERREN: THEY WOULD BE IN CONTEMPT OF THIS COURT. THEY WOULD
LOSE THEIR JOBS.
JUDGE OBERDORFER: THAT'S WHAT I CALL A CONSTITUTIONAL CRISIS.
MR. FERREN: WELL, JUDGE OBERDORFER, I WOULD HATE TO THINK THAT
THAT WOULD BE THE DETERMINING FACTOR IN THIS CASE. AND I WOULD ASK THE
COURT TO ENTERTAIN THE HYPOTHETICAL WITH INTEREST AND TO SAY THIS IS NOT
GOING TO GET IN OUR WAY.
I'D LIKE TO JUST MAKE A COUPLE OF COMMENTS WITH REGARD TO THE
TWENTY-THIRD AMENDMENT, THE PRESIDENTIAL AMENDMENT. WE POINTED OUT IN
OUR BRIEF THAT THE FACT THAT THE CONSTITUTION WAS AMENDED TO GIVE US THE
RIGHT TO VOTE FOR PRESIDENT HAS NO IMPLICATION OF ANY KIND WITH REGARD
TO THE RIGHT TO VOTE IN THE HOUSE AND THE SENATE.
IN FACT, THE NINTH AMENDMENT SAYS, AND I QUOTE, ENUMERATION IN THE
CONSTITUTION OF CERTAIN RIGHTS SHALL NOT BE CONSTRUED TO DENY OR
DISPARAGE OTHERS RETAINED BY THE PEOPLE. WE THINK THE NINTH AMENDMENT IS
AN ANSWER THAT IS FOOLPROOF HERE.
FURTHERMORE, YOU CANNOT READ BACK 200 YEARS FROM A CONSTITUTIONAL
AMENDMENT IN THE 1960S TO WHAT THE INTENTION WAS AT THE BEGINNING OF OUR
COUNTRY.
AND IT IS INTERESTING TO NOTE THAT WHEN THE TWENTY-FOURTH
AMENDMENT WAS PASSED WHICH OUTLAWED THE POLL TAX IN FEDERAL ELECTIONS,
AN ARGUMENT WAS MADE IN THE HARPER CASE A COUPLE OF YEARS LATER: WELL,
THEN, POLL TAXES IN STATE ELECTIONS MUST, BY NEGATIVE IMPLICATION, BE
PERMITTED. AND THE SUPREME COURT SAID NO. SO I THINK THE ARGUMENT, WITH
ALL RESPECT, IS VIRTUALLY FRIVOLOUS.
NOW, AS TO THE PROCEDURAL ISSUES. I THINK THAT THE COLLOQUY THAT I
HEARD THE COURT MAKE ON STANDING HAS BEEN SATISFIED. WE'VE TALKED ABOUT
REDRESSABILITY. UNLESS THE COURT HAS ANY OTHER QUESTIONS, I WOULD REST
ON THE RECENT ARGUMENTS AND STANDING.
JUSTICIABILITY WAS NOT RAISED OTHER THAN BY ONE OF THE DEFENDANTS,
AND WE SIMPLY CITE FRANKLIN, THE MONTANA CASE, DEPARTMENT OF COMMERCE
AGAINST MONTANA THERE, AND I DON'T PROPOSE TO GO INTO THAT. BAKER AND
CARR I THINK HAS MADE THIS KIND OF CASE JUSTICIABLE. AND I'M NOT AWARE
OF ANY OTHER CASE THAT WOULD STAND IN THE WAY THERE.
JUDGE OBERDORFER: PLAY BACK. I HATE TO -- YOU KEEP SAYING YOU
DON'T WANT TO TALK ABOUT THIS, AND AT LEAST I'M THINKING ABOUT IT, SO
YOU BETTER TALK ABOUT IT.
MR. FERREN: I WILL.
JUDGE OBERDORFER: WHAT ARE THE OPTIONS AVAILABLE? PLAY OUT THE
SCENARIO.
WE DECIDE THAT THERE'S STANDING JUST TO GET -- BECAUSE THE
SECRETARY HAS THIS DECISION TO MAKE AND WE COULD THINK THAT IT'S WRONG
AND, THEREFORE, THE STANDING WITH RESPECT TO THE SECRETARY. AND WE
DECIDE ON THE BASIS WITH THAT STANDING THAT -- WE ENTER A DECLARATORY
JUDGMENT THAT IT'S A CONSTITUTIONAL RIGHT TO HAVE THE DISTRICT OF
COLUMBIA POPULATION INCLUDED IN THE APPORTIONMENT AND AN APPROPRIATE
REPRESENTATIVE IDENTIFIED. AND IT'S YOUR RECOMMENDATION THAT WE STOP
THERE AT THIS POINT.
MR. FERREN: NO. WHEN YOU SAID REPRESENTATIVE, I'M GOING FOR THE
SENATE AND THE HOUSE. WERE YOU INCLUDING BOTH?
JUDGE OBERDORFER: SUPPOSE WE DID STOP THERE?
MR. FERREN: WELL, THAT WOULD BE HALF A LOAF THAT IS NOT BETTER
THAN THE WHOLE LOAF.
JUDGE OBERDORFER: WHAT WOULD HAPPEN AT THAT POINT?
MR. FERREN: WHAT WOULD HAPPEN AT THAT POINT?
JUDGE OBERDORFER: IN YOUR THEORY.
MR. FERREN: IT PROBABLY WOULD BE CROSS APPEALS.
JUDGE GARLAND: LET ME JUST PAUSE OVER THIS HALF A LOAF ISSUE JUST
FOR THE PURPOSE OF STANDING. I'LL RELINQUISH.
IF WE DECIDED THAT WE CAN ONLY GIVE YOU HALF A LOAF YOU WOULD
STILL HAVE STANDING FOR THE OTHER HALF, WOULDN'T YOU?
MR. FERREN: THAT'S CORRECT.
JUDGE GARLAND: AS LONG AS WE CAN GIVE YOU PART OF THE REMEDY, THIS
IS NOT AN ALL-OR-NOTHING ARGUMENT?
MR. FERREN: NOT AT ALL. NOT AT ALL.
BUT, JUDGE OBERDORFER, WHAT WOULD HAPPEN IS THAT THE COURT WOULD
FIRST IDENTIFY THE RIGHT AND IT WOULD THEN SAY: THE DISTRICT OF COLUMBIA
HAS THE RIGHT TO VOTE IN THE HOUSE AND THE SENATE, I ASSUME AN
ELABORATION OF THAT REASONING, AND WOULD SAY: IN THE FIRST INSTANCE
WE'RE GOING TO ASK THE CONGRESS TO PROVIDE A REMEDY, BECAUSE IT MAKES
SENSE TO DO THAT. THAT'S WHAT GOES ON WHEN YOU HAVE REAPPORTIONMENT,
MALAPPORTIONMENT CASES. AND IT'S NOT THE KIND OF THING THE COURT IN THE
FIRST INSTANCE IS GOING TO WANT TO DEAL WITH BECAUSE THERE MAY BE
OBVIOUS OR COMPROMISE RESULTS THAT THE POLITICAL PROCESS WOULD GENERATE.
SO I GUESS YOUR QUESTION IS: WELL, IF CONGRESS JUST STONEWALLS THE
COURT AND IT COMES BACK, WHAT DO WE THEN DO? AND THE ANSWER IS, YOU SAY:
THERE IS THE RIGHT TO VOTE IN THE HOUSE AND THE SENATE AND YOU DECIDE
WHETHER IT SHOULD BE THE MARYLAND SOLUTION, THE DISTRICT SOLUTION, OR
PERHAPS A HYBRID SOLUTION. ALL THREE ARE THEORETICALLY POSSIBLE.
JUDGE OBERDORFER: WHAT'S HAPPENING TO YOUR CLAIMS AGAINST THE
HOUSE AND SENATE OFFICERS IN THAT INTERIM? THEY JUST LAY ON THE TABLE
HERE?
MR. FERREN: WELL, I THINK THEY DO. IN OTHER WORDS, I THINK WHILE
YOU HAVE DEFERRED TO THE CONGRESS TO COME UP WITH A SOLUTION, THAT'S THE
EQUIVALENT OF A STAY OF ANY ORDER THAT WOULD REQUIRE RELIEF.
JUDGE OBERDORFER: IS THAT ORDER APPEALABLE?
MR. FERREN: NO, I DON'T THINK THAT ORDER WOULD BE APPEALABLE AT
THAT TIME. I DON'T THINK IT WOULD BE A FINAL ORDER BECAUSE RELIEF HAS
NOT BEEN ENTERED. NOW, AS YOU KNOW, THERE ARE CASES --
JUDGE OBERDORFER: IT WAS ENTERED A DECLARATORY JUDGMENT.
MR. FERREN: YOU HAVE. YOU HAVE.
JUDGE OBERDORFER: BUT COULDN'T THE SECRETARY APPEAL AT THAT POINT?
MR. FERREN: WELL, IT'S A NICE QUESTION. I DON'T THINK SO AT THAT
POINT.
I THINK YOU WOULD BE CAREFUL ENOUGH TO CRAFT THE ORDER. YOU WOULD
CALL IT TENTATIVE DECLARATORY RELIEF --
JUDGE GARLAND: WOULD THEY BE BOUND TO FOLLOW THAT TENTATIVE
DECLARATORY RELIEF? JUST SORT OF THINK ABOUT IT.
MR. FERREN: NO. I THINK YOU CAN CRAFT AN ORDER. JUST USE THE
ANALOGY OF THE VOTING RIGHTS CASES IN THE SOUTH. I THINK THE SAME THING
APPLIES. I DON'T THINK THOSE ORDERS WERE APPEALABLE UNTIL THERE WAS A
FINAL ORDER AND I THINK FINALITY INCLUDED THE APPORTIONMENT REMEDY.
IF I'M MISTAKEN ABOUT THAT I'M SURE YOU'RE GOING TO GET A
SUPPLEMENTAL BRIEF.
JUDGE OBERDORFER: I SUPPOSE ANOTHER SCENARIO WOULD BE THAT WE
COULD DISMISS THE HOUSE AND SENATE OFFICERS AT THIS POINT, THEN THERE
WOULD BE A FINAL ORDER.
MR. FERREN: WELL, THAT'S TRUE. THAT WOULD BRING THE HOUSE DOWN,
LITERALLY.
JUDGE OBERDORFER: CORRECTLY.
MR. FERREN: AND WE'RE NOT ASKING FOR THAT KIND OF DRACONIAN REMEDY
HERE, ALTHOUGH WE WERE TEMPTED.
BUT I DO THINK THAT THE -- I MEAN, FOR EXAMPLE, THE COURT COULD
SAY -- AND I'M THINKING OUT LOUD HERE, TOO -- THE COURT COULD SAY: WE
ARE WITHIN X NUMBER OF DAYS, SUBJECT TO ADDITIONAL STAY, GOING TO ENTER
A DECLARATORY JUDGMENT GRANTING THE RIGHT TO VOTE, AND THE CONGRESS WILL
HAVE RIGHT OF FIRST REFUSAL TO PROPOSE A REMEDY WITHIN THAT TIME FRAME
AND WE EXPECT THAT THE CONGRESS WILL BE INTERESTED IN DOING THAT,
FAILING WHICH WE WILL ENTER A MORE DETAILED REMEDY BASED UPON
SUBMISSIONS TO THE PARTIES.
INDEED, IF PEOPLE ARE MORE COMFORTABLE BRINGING MARYLAND TO THE
TABLE AT THAT POINT, DEPENDING ON WHAT THE COURT IS CONCLUDING, BY ALL
MEANS THEY CAN DO THAT. I DON'T THINK THAT THE RELIEF REQUIRES
MARYLAND'S PARTICIPATION. I WANT TO BE VERY CLEAR ABOUT THAT.
I THINK THE CESSION WAS INCOMPLETE, AND I THINK THE RELIEF CAN
THEREFORE BE ORDERED, MANY HUNDRED YEARS LATE, BUT IT CAN BE ORDERED.
NOW, PRUDENTIALLY, TO USE YOUR WORD, JUDGE OBERDORFER, I WOULD
THINK YOU WOULD INVITE MARYLAND TO PARTICIPATE TO HAVE A HEARING. THAT'S
WHAT DUE PROCESS IS ALL ABOUT. BUT I WANT TO MAKE THAT DISTINCTION
BETWEEN AN INVITATION AND SOMETHING THAT IS INDISPENSABLE TO THE KIND OF
RELIEF WE'RE TALKING ABOUT.
JUDGE OBERDORFER: ANYTHING FURTHER?
MR. FERREN: DOES THAT ADDRESS THAT?
JUDGE OBERDORFER: YES. ANYBODY? DO YOU HAVE ANYTHING FURTHER?
MR. FERREN: WELL, I HAVE TWO THINGS VERY BRIEFLY. SPEECH AND
DEBATE. POWELL AGAINST MCCORMACK I THINK IS CONCLUSIVE ON THAT.
YOU KNOW, THE MAIN THING ABOUT SPEECH AND DEBATE IS IT'S NOT
REALLY AN ISSUE BECAUSE UNTIL THE RIGHT REPRESENTATIVES ARE AT THE
CHAMBER THERE IS NO SPEECH AND DEBATE. THERE TRULY IS NOT. AND SO, JUST
APROPOS OF YOUR HYPOTHETICAL QUESTION, IF, FOR EXAMPLE, THE SENATE OR
THE HOUSE WERE TO SAY: WE'RE NOT GOING TO BRING IN SENATORS WHO ARE
DEMOCRATS OR WOMEN OR AFRICAN AMERICANS, WE'RE GOING -- YOU KNOW, NOBODY
WOULD SAY THAT THE SPEECH AND DEBATE CLAUSE PROTECTS THAT, AT LEAST
AGAINST THE PEOPLE THAT WE HAVE SUED WHO OPEN THE DOOR AND LET THEM COME
IN AND VOTE. SO, YOU KNOW, THIS IS PRE-LEGISLATIVE. IT DOESN'T EVEN GET
TO LEGISLATIVE.
BUT IF YOU SAY: WELL, LEGISLATION IS GOING ON BY DEFAULT, OR
THERE'S SOME KIND OF LEGISLATIVE COLLUSION BETWEEN THE HOUSE AND SENATE
OFFICERS AND THE MEMBERS, IT STILL DOES NOT MEET THE SPEECH AND DEBATE
CLAUSE BECAUSE ANY LEGISLATION THAT HAS TAKEN PLACE HAS TAKEN PLACE
EXCLUSIVELY BY THE MEMBERS OF CONGRESS THEMSELVES, AND THE HOUSE AND
SENATE CLERK AND OTHERS ARE JUST CARRYING OUT THOSE WISHES. THERE'S A
SEQUENCE HERE.
IT'S NOT LIKE GRAVELLE WHERE THE COMMITTEE AIDE WAS SITTING AT THE
TABLE WITH THE SENATOR ELBOW TO ELBOW WITH THE PENTAGON PAPERS AND
PARTICIPATED IN THE EVIL THAT WAS DETECTED. SO, I THINK THERE IS A
SEQUENCE, AND POWELL AGAINST MCCORMACK IS CONCLUSIVE.
I'LL TELL YOU, YOUR HONOR, I WILL STOP, BUT THERE IS ONE THING
MORE I WOULD LIKE TO ADD, AND THAT IS THIS. WHEN YOU STAND BACK AND
THINK ABOUT IT WE ARE TALKING ABOUT THE MOST PRECIOUS, THE MOST
FUNDAMENTAL RIGHT THAT ANY OF US CAN HAVE: A RIGHT TO VOTE.
THIS RIGHT IS AT THE VERY HEART OF A GOVERNMENT WE FOUGHT A
REVOLUTIONARY WAR TO GAIN, A CIVIL WAR TO PROTECT, WORLD WARS IN WHICH
MEN AND WOMEN OF THE DISTRICT OF COLUMBIA AND LIKE MEN ALL OVER THE
COUNTRY HAVE DIED TO KEEP.
BUT UNLIKE EVERY OTHER ADULT CITIZEN OF THE 50 STATES, INDEED
UNLIKE ANY OF THE MEN OR WOMEN WE WORK WITH EVERY DAY WHO LIVE IN
MARYLAND AND VIRGINIA, WE DON'T HAVE THE RIGHT TO VOTE. AND, IN FACT, IT
WAS NOT MANY YEARS AGO WHEN THE DISTRICT OF COLUMBIA HAD MORE RESIDENTS
THAN TEN STATES. AND WE DON'T HAVE THE RIGHT TO VOTE.
AS A MATTER OF OUR VERY CITIZENSHIP IN THIS COUNTRY THERE IS NO
HIGHER VALUE, NO GREATER RIGHT. AND I DOUBT VERY MUCH THAT YOU OR I OR
ANYONE ELSE IN THIS COURTROOM WILL EVER PARTICIPATE IN A CASE WHERE THE
STAKES ARE HIGHER THAN THIS ONE.
IF THE FRAMERS WERE HERE TODAY I BELIEVE THEY'D BE ASTONISHED THAT
THE HALF MILLION CITIZENS OF THE NATION'S CAPITAL, UNLIKE ANY CAPITAL OF
ANY DEMOCRATIC COUNTRY IN THE WORLD, DO NOT HAVE THE RIGHT TO VOTE FOR
THOSE WHO GOVERN THEM.
YOU KNOW, WE, AFTER ALL, IN THE DISTRICT ARE AMONG THE POSTERITY
FOR WHOM THE CONSTITUTION SECURED THE BLESSINGS OF THE LIBERTY.
SO RESPECTFULLY, BUT VERY EARNESTLY, I ASK THIS COURT ON BEHALF OF
THE PEOPLE OF THE DISTRICT OF COLUMBIA TO DECLARE UNDER THE CONSTITUTION
THAT WE ARE ENTITLED TO VOTE FOR REPRESENTATIVES IN THE HOUSE AND IN THE
UNITED STATES SENATE.
THANK YOU.
JUDGE OBERDORFER: MR. LAROCHE, DO YOU HAVE ANYTHING FURTHER?
MR. LAROCHE: I'LL TRY TO KEEP IT BRIEF, YOUR HONOR.
ALL OF THE DEFENDANTS, INCLUDING THE CONTROL BOARD, HAVE MADE
COMMENTS ABOUT CLAIMS IN OUR CASE TO -- WE ARE ASKING THIS COURT TO
ORDER REPRESENTATION IN CONGRESS. THE CONTROL BOARD GOES TO GREAT
LENGTHS PARTICULARLY TO SAY THEY DON'T HAVE THE POWER TO DO THAT. OF
COURSE, THIS IS A RED HERRING. WE ARE NOT ASKING THIS COURT TO ENTER AN
ORDER OF ANY SORT. BUT TO FOCUS ON SPECIFIC POINTS.
IN THE DEPARTMENT OF JUSTICE'S ARGUMENTS -- JUDGE GARLAND, YOU
ASKED A QUESTION ABOUT EVANS VERSUS CORNMAN LOOKING FOR A DOCTRINAL
DISTINCTION BETWEEN THE TREATMENT OF THE ENCLAVES AND THE TREATMENT OF
THE DISTRICT OF COLUMBIA. THERE IS NO DOCTRINAL OR THEORETICAL
DISTINCTION TO EXPLAIN THE DIFFERENCE. THE DIFFERENCE IS A DIFFERENCE OF
HISTORICAL TREATMENT.
WE CAN LOOK BACK IN HISTORY AND WE CAN SEE VARIOUS LOGICAL REASONS
WHY AN ENCLAVE AS SMALL AS A LIGHTHOUSE MIGHT BE TREATED BY CONGRESS IS
MORE A PART OF THE STATE IN WHICH IT'S LOCATED --
JUDGE GARLAND: LET'S PAUSE OVER THIS, IF YOU WOULD.
BUT THE DOCTRINAL ISSUE THAT WAS TROUBLING ME WITH RESPECT TO
EVANS IS: WHY IS THAT A COURT DECIDED THAT THE CITIZENS WHO ARE
RESIDENTS OF NIH ARE ACTUALLY CITIZENS OF MARYLAND? I TAKE IT YOUR
ARGUMENT -- AND, THEREFORE, WHY IS IT THAT THE RESIDENTS OF THE DISTRICT
OF COLUMBIA AREN'T ALSO CITIZENS OF MARYLAND?
MAYBE I MISUNDERSTOOD YOUR ARGUMENT, BUT I THOUGHT YOUR ARGUMENT
WAS THAT THEY AREN'T CITIZENS OF --
MR. LAROCHE: THEY ARE NOT CITIZENS OF MARYLAND.
JUDGE GARLAND: SO, ACTUALLY, I HAVE THE SAME DOCTRINAL FROM THE
OTHER POINT OF VIEW WITH RESPECT TO, WHY IS IT -- MAYBE YOU CAN MAKE THE
DEFENDANTS' ARGUMENT BETTER -- WHY IS IT THAT THE CITIZENS OF THE
DISTRICT OF COLUMBIA ARE NOT CITIZENS OF MARYLAND IF RESIDENTS OF NIH
ARE?
MR. LAROCHE: ORIGINALLY, BECAUSE THE SUPREME COURT IN REILY VS
LAMAR SAID THEY WERE NOT.
JUDGE GARLAND: NO, BUT THIS IS THE SAME PROBLEM WE'VE GOT. I NEED
A REASON. I'LL FOLLOW THEM, BUT IT HELPS --
MR. LAROCHE: AND -- AND THAT OPINION CREATED FOR THE DISTRICT AND
THE TERRITORIES THE DOCTRINE OF EXTRA- TERRITORIALITY THAT BOTH WERE NOT
PARTS OF THE STATES.
HOWEVER, CONGRESS HOLDS POWER OVER THE DISTRICT AND OVER THE
ENCLAVES BECAUSE JURISDICTION WAS CEDED TO CONGRESS BY THE STATES.
CONGRESS HAS RETROCEDED TO THE STATES AUTHORITY OVER THE ENCLAVES.
AND IN EVANS VS CORNMAN, BOTH IN THE DISTRICT COURT CASE BEFORE
THAT, CORNMAN VS DAWSON, AND IN THE SUPREME COURT CASE THE COURTS
DISCUSSED THE HISTORY WHEREBY CONGRESS HAS DONE THIS.
JUDGE GARLAND: BUT HERE IS MY QUESTION. I HAVE THIS PROBLEM WITH
EVANS, WHICH IS THE DISCUSSION I HAD WITH GOVERNMENT COUNSEL, WHICH IS
IT SEEMS LIKE THE COURT CONCLUDES THAT THE RESIDENTS OF NIH ARE CITIZENS
OF MARYLAND AND THEN GOES ON, AFTER HAVING CONCLUDED THAT, TO COMPARE
THE TREATMENT BASED ON THESE RETROCESSIONS. IS THAT RIGHT OR AM I
MISREADING THE CASE?
MR. LAROCHE: I THINK, YOUR HONOR, TO A DEGREE THE COURT ASSUMES IT
IN LIGHT OF THE HISTORY OF THE RETROCESSIONS.
IN 1953 IN THE CASE OF HOWARD VS THE SINKING FUND, THE SUPREME
COURT, LOOKING AT THE LARGER HISTORY OF THE CASES, DID A PIROUETTE AND
CAME AROUND 180 DEGREES AND SAID RATHER SUDDENLY THE FEDERAL ENCLAVES
WERE NEVER SEVERED FROM THE STATES.
THE SUPREME COURT COULD HAVE SAID THE SAME THING IN REILY VS
LAMAR. THERE'S NO DOCTRINAL REASON FOR IT. THERE'S NO REASON IN THE TEXT
OR THE CONSTITUTION.
BUT THE LEGAL STATEMENT IN REILY AND THE LEGAL STATEMENT IN HOWARD
A CENTURY AND A HALF LATER REFLECTED AND CREATED POLITICAL REALITIES
WHICH WE LIVE WITH TODAY.
AND AS OF THE TIME OF HOWARD, THEN IT BECAME THE ACCEPTED
POLITICAL FACT THAT WAS THEN, WITH MORE ACCELERATION, RULED UPON BY THE
COURTS THAT THE ENCLAVES WERE WITHIN THE STATES, SO THE ARGUMENT THAT
THE PEOPLE WHO LIVED THERE WERE CITIZENS OF THE STATES FOLLOWED.
HOWEVER, AT THE TIME OF CORNMAN VS DAWSON, THE DISTRICT COURT
CASE, THE ATTORNEY GENERAL OF MARYLAND HAD EXPLICITLY SAID THEY ARE NOT
CITIZENS OF MARYLAND. CORNMAN VS DAWSON WAS A CHALLENGE TO THAT AND SO
IT WAS NOT A GIVEN. IT WAS IN A WAY RULED BY THE COURTS THAT THE
CITIZENS WHO LIVED IN THE ENCLAVES WERE CITIZENS OF THE STATES BECAUSE
OF A HISTORY OF CONGRESSIONAL TREATMENT OF THE ENCLAVES.
AND AS JUSTICE MARSHALL SAID IN EVANS VS CORNMAN, CONGRESS HAS HAD
THE POWER NOT ONLY TO ALLOW THE STATES INTO THE ENCLAVES, BUT HAS THE
POWER TO PUSH THEM BACK OUT AGAIN.
JUDGE GARLAND: AND I TAKE IT YOUR VIEW, THEN, WOULD BE THE SAME
WITH RESPECT TO THE DISTRICT OF COLUMBIA; THAT IT WOULD BE A POSSIBLE TO
MAKE CONGRESS -- WELL, IT WOULD BE POSSIBLE, THEN, FOR CONGRESS TO MAKE
-- ONE WAY IN WHICH CONGRESS COULD MAKE THE CITIZENS OF THE DISTRICT OF
COLUMBIA CITIZENS OF MARYLAND IS TO RETROCEDE SOME OF ITS AUTHORITY TO
MARYLAND.
MR. LAROCHE: YES, YOUR HONOR, I BELIEVE THAT IS THE CASE.
NOW, I DO ALSO BELIEVE, IN LINE WITH OUR DOCTRINE UNDER THE
GUARANTEE CLAUSE, THAT CONGRESS COULD NOT DO THAT UNTIL THAT HAD BEEN
THE AFFIRMATIVE CHOICE OF THE CITIZENS OF THE DISTRICT, BUT --
JUDGE GARLAND: WAS THAT THE AFFIRMATIVE CHOICE OF THE CITIZENS OF
NIH?
MR. LAROCHE: IT WAS, YOUR HONOR. THE TILLIE CORNMAN AND THE OTHER
PLAINTIFFS IN CORNMAN VS DAWSON --
JUDGE GARLAND: BUT IN THE HOWARD CASE IT WASN'T. THEY DIDN'T WANT
TO BE TAXED BY MARYLAND -- I MEAN, BY KENTUCKY.
MR. LAROCHE: BY KENTUCKY, THAT'S TRUE, YOUR HONOR.
JUDGE GARLAND: SO THAT WAS DONE WITHOUT THEIR CONSENT.
MR. LAROCHE: HOWEVER, THE FACT OF THE MATTER IS IN HOWARD VS
SINKING FUND THERE WAS A LITTLE BIT OF SHENANIGANS THERE, TO PUT IT
PLAINLY.
THE COMPANY WAS DOING BUSINESS -- THE VAST MAJORITY OF THEIR
BUSINESS WAS OUTSIDE THE ENCLAVE. THEY HAD MOVED THEIR OFFICES INTO A
PORTABLE TRAILER WITHIN THE ENCLAVE. AND IN THE BRIEFS BEFORE THE
SUPREME COURT IT APPEARS THAT THAT FACT TOOK MORE PRECEDENTS IN TERM OF
THE ARGUMENT THAN WHAT IS REFLECTED IN THE FINAL OPINION.
I THINK THAT THAT COLORS TO SOME DEGREE HOW HOWARD IS TO BE READ
IN TERMS OF THE DESIRES OF THE CITIZENS IN HOWARD. BUT AS THE REPORT OF
THE FEDERAL GOVERNMENT THAT WE SUBMITTED IN SUPPORT OF OUR MOTION FOR
SUMMARY JUDGMENT THAT I REFER TO AS THE JOE FALLS' REPORT, THE
JURISDICTION OVER FEDERAL AREAS WITHIN THE STATES, IT WAS UNIFORMLY THE
DESIRE OF THE PEOPLE WHO LIVED IN THESE FEDERAL ENCLAVES TO BE TREATED
AS CITIZENS OF THE SURROUNDING STATES.
JUDGE OBERDORFER: NOT ONLY THAT, THEY HAD FIRE PROTECTION. THEY
PAID TAXES. THEY HAD POLICE PROTECTION. THEIR CHILDREN WENT TO STATE
SCHOOLS.
MR. LAROCHE: THAT'S WHAT THEY WANTED.
JUDGE OBERDORFER: JUSTICE MARSHALL MADE A POINT OF THAT.
MR. LAROCHE: BY THE TIME OF EVANS VS CORNMAN A LOT OF THAT WAS THE
FACT. HOWEVER, AT NIH, THE CITIZENS WHO LIVED AT NIH DID NOT SEND THEIR
CHILDREN TO MONTGOMERY COUNTY SCHOOLS. THERE WERE THESE EXCLUSIONS.
THERE STILL ARE PROBLEMS WITH THE ENCLAVES TODAY BECAUSE IT'S AN
ISSUE THAT HAS NOT BEEN DEALT WITH ADEQUATELY.
IF I MIGHT GO ON AND DEAL WITH JUST A FEW OTHER ISSUES.
JUDGE OBERDORFER: YOU SAID YOU WERE GOING TO BE BRIEF.
MR. LAROCHE: I'M HOPING TO, YOUR HONOR.
THE DEPARTMENT OF JUSTICE ALSO ADDRESSED THE QUESTION OF THE
PRESIDENT'S IMMUNITY. CERTAINLY, I THINK THAT ANY COURT SHOULD APPROACH
THE QUESTION OF AN INJUNCTION AGAINST THE PRESIDENT OF THE UNITED STATES
WITH TREPIDATION, AND WE REQUESTED FROM THIS COURT --
JUDGE GARLAND: THE SUPREME COURT SAID WE'RE SUPPOSED TO RAISE OUR
EYEBROWS.
MR. LAROCHE: I THINK THAT YOU SHOULD THINK LONG AND HARD, TOO.
THIS IS NOT SOMETHING WE ASK FOR CASUALLY. HOWEVER, THERE IS NO
AUTHORITY THAT YOU CANNOT ENTER PROHIBITIVE INJUNCTIONS.
I THINK FOR THE PURPOSES OF ADAMS VS CLINTON WE WOULD BE WILLING
TO POSIT THE PROBABILITY THAT YOU SHOULD NOT ENTER A MANDATE THAT THE
PRESIDENT DO SOMETHING, BUT THAT PRESIDENT NOT DO SOMETHING IS ANOTHER
ISSUE.
WHAT THE PRESIDENT DOES THAT IS GERMANE TO THE REASON HE IS A
PROPER DEFENDANT IN ADAMS VS CLINTON IS UNDER TWO DIFFERENT RUBRICS.
ONE IS UNITED STATES CODE 2(A) IN WHICH CONGRESS HAS SAID THE
PRESIDENT SHALL DO THIS AND THE PRESIDENT SHALL USE A CERTAIN
MATHEMATICAL FORMULA.
CONGRESS COULD GIVE THAT AUTHORITY TO AN INTERN AT THE WHITE HOUSE
OR TO THE SECRETARY OF COMMERCE. THEY COULD CONFER THAT MATHEMATICAL
CALCULATION ON ANYONE.
WHAT MATTERS IS THE TASK AT HAND, THE TASK AT ISSUE, NOT THE
IDENTITY OF THE PERSON EXECUTING IT. AND THE PRESIDENT DOESN'T HAVE THE
AUTHORITY TO CHANGE THE MATHEMATICAL CALCULATION. IT IS TO BE A
MATHEMATICAL CALCULATION CALLED THE METHOD OF EQUAL PROPORTIONS. IT'S
REALLY RATHER STRAIGHTFORWARD.
WE'RE ASKING THAT AN INJUNCTION BE CONSIDERED AGAINST THE
PRESIDENT TO NOT REPORT THAT CALCULATION. SIMPLY PROHIBITIVE OF A TASK
CONFERRED UNDER STATUTE.
THE SAME GOES FOR THE PRESIDENT'S UNIQUE TASKS -- THEY ARE NOT
DEFINED IN THE CONSTITUTION -- TO EXECUTE POWER OVER THE DISTRICT OF
COLUMBIA, SPECIFICALLY AN EXAMPLE IS TO NOMINATE MEMBERS OF THE CONTROL
BOARD.
THE ATTORNEYS FOR THE HOUSE OF REPRESENTATIVES AND FOR THE SENATE,
I BELIEVE I HEARD THEM ACTUALLY CONCEDE THE SPEECH AND DEBATE ISSUE. MR.
KIRCHER SAID THAT THERE IS A --
JUDGE GARLAND: I DON'T THINK I HEARD THAT. AND THE WAY HE'S
NODDING OVER THERE IT DOESN'T LOOK LIKE IT. HE'S SHAKING HIS HEAD.
MR. LAROCHE: I FIGURED THEY WOULD DISAGREE WITH ME, BUT I THINK I
HEARD WHAT I HEARD. MR. KIRCHER SAID --
JUDGE OBERDORFER: THERE WILL BE A TRANSCRIPT.
MR. LAROCHE: -- THAT THERE IS A SUBSTANTIALITY ARGUMENT HERE. IN
OTHER WORDS, THAT WHAT THESE OFFICERS DO IS NOT THAT SUBSTANTIAL.
AND MR. HUEFNER SAID THAT THE HOUSE OFFICERS ARE GOING TO DO WHAT
THEY ARE TOLD TO DO. AGAIN, THEIR TASK IS ALREADY DEFINED BY CONGRESS
UNDER 2 UNITED STATES CODE SECTION 2(B). 28(B), EXCUSE ME. CONGRESS
COULD REWRITE THAT SO THAT SOMEONE ELSE DID IT.
FINALLY, AS TO THE CONTROL BOARD. TO START WITH, MS. ADAMS AND MR.
LARRY GRAY, PLAINTIFFS IN THIS SUIT, WERE CANDIDATES FOR THE CONTROL
BOARD AT THE TIME THAT THE CONTROL -- EXCUSE ME -- CANDIDATES FOR THE
SCHOOL BOARD WHEN THE CONTROL BOARD STEPPED IN AND INTERFERED WITH LOCAL
GOVERNANCE. BUT MR. REZNECK SAYS: LET'S GO BACK TO 1874 AND LOOK AT THE
HISTORY HERE TO SHOW THAT THE CONTROL BOARD HAS NO PART IN THIS.
IN 1874, WHEN THE TERRITORIAL GOVERNMENT WAS TERMINATED, CONGRESS
HAD THREE CHOICES. IT COULD ADMIT THAT TERRITORY AS A STATE, IT COULD
RETROCEDE THAT TERRITORY TO MARYLAND, IN WHICH CASE THE CITIZENS WHO
LIVED HERE IN EITHER CASE WOULD BE CITIZENS OF A STATE AND HAVE FULL
RIGHTS, OR IT COULD PERPETUATE THE COLONIAL STATUS. IT CHOSE THE LATTER
AND APPOINTED THREE COMMISSIONERS.
NINETY-NINE YEARS LATER THAT STATUS CHANGED. AGAIN, CONGRESS HAD
THREE CHOICES. THERE WAS A STATEHOOD PARTY ARGUING VOCIFEROUSLY THAT THE
DISTRICT SHOULD BE ADMITTED AS A STATE.
THERE WAS SUPPORT FOR RETROCESSION OF THE DISTRICT TO MARYLAND. IN
EITHER CASE THE CITIZENS OF THE DISTRICT WOULD BE FULL CITIZENS OF A
STATE. INSTEAD, CONGRESS KEPT THE DISTRICT AS A COLONY AND CREATED AN
ADMINISTRATIVE STRUCTURE FOR IT. AND IN 1995, WHEN THAT ADMINISTRATIVE
STRUCTURE WAS UNABLE TO DEAL WITH FINANCIAL PROBLEMS CREATED IN THE HOME
RULE ACT, CONGRESS AGAIN HAD A CHOICE. AND AS MR. REZNECK'S OWN EXHIBITS
DEMONSTRATE, CONGRESS KNEW IT HAD A CHOICE BETWEEN RETROCEDING THE
DISTRICT TO MARYLAND. THE DEBATES IN CONGRESS INDICATED IT KNEW IT HAD
THE CHOICE OF ADMITTING THE DISTRICT AS A STATE. IN EITHER CASE, THE
CITIZENS OF THE DISTRICT WOULD HAVE FULL RIGHTS OF CITIZENSHIP.
INSTEAD, CONGRESS KEPT THE DISTRICT AS A COLONY AND CREATED THE
CONTROL BOARD AS AN ADMINISTRATIVE AGENCY TO ADMINISTER THE COLONY. IT
IS A TOOL OF CONGRESS IN PERPETUATING THE STATUS QUO. THEREFORE, IT IS A
PROPER DEFENDANT.
AND WE WOULD LIKE TO ALSO FOLLOW MR. REZNECK'S SUGGESTION AS A
REMEDY. WE NOT ONLY WANT TO FREE MR. REZNECK SO HE DOESN'T HAVE TO BE
HERE, WE WANT THE CONTROL BOARD TO STAND DOWN AND GO SIT IN THE
AUDIENCE, TOO, TO WATCH WHAT THE DISTRICT OF COLUMBIA DOES.
IF I MAY JUST RESPOND TO TWO POINTS THAT, JUDGE OBERDORFER, YOU
RAISED IN QUESTIONS AS WELL. YOU ASKED ABOUT ARTICLE 4, THE IMPLICATIONS
OF THAT.
FOR 200 YEARS THE DISTRICT HAS BEEN TREATED AS SEPARATE FROM
MARYLAND. IT IS NOT PART OF MARYLAND. I DON'T BELIEVE THAT THAT
PROVISION OF ARTICLE 4 IS GERMANE AT ALL TO THE QUESTION.
YOU ALSO ASKED ABOUT PROCEDURE FROM HERE. THIS COURT DOES HAVE THE
POWER TO ENTER DECLARATORY JUDGMENTS THAT THE CITIZENS OF THE DISTRICT
OF COLUMBIA ARE ENTITLED TO EQUAL TREATMENT WITH ALL OTHER CITIZENS OF
THE UNITED STATES AND ARE ENTITLED TO REPUBLICAN FORMS OF GOVERNMENT.
THIS COURT DOES HAVE THE POWER TO ENTER DECLARATORY JUDGMENT THAT
UNDER THE STATUS QUO CONGRESS BY AND THROUGH THE ACTIONS OF THESE
DEFENDANTS PERPETUATES THAT STATUS QUO RESULTING IN THE DENIAL OF THOSE
RIGHTS.
THE COURT CAN ENTER AN INJUNCTION THAT THE PRESENTLY MOST POWERFUL
ADMINISTRATIVE AGENCY THAT CONGRESS USES TO MAINTAIN THIS STATUS QUO,
THE CONTROL BOARD, SIMPLY GO HOME SO THAT THE CITIZENS CAN RUN THEIR OWN
BUSINESS AND THE COURT CAN CONTEMPLATE INJUNCTIONS TO ASK -- TO TELL THE
PRESIDENT HE MAY NO LONGER ENFORCE THE STATUS QUO BY WHICH THIS DISTRICT
OF COLUMBIA, CONSTITUTIONALLY INDISTINGUISHABLE FROM ONE-THIRD OF THE
UNITED STATES, WHICH IS THE FEDERAL ENCLAVES, BE ALLOWED TO BE ADMITTED
INTO THE UNITED STATES.
BEYOND THAT, IT'S POLITICAL QUESTIONS HOW THAT WILL BE DONE, BUT
WE'RE ASKING FOR NOTHING MORE THAN HAS BEEN ASKED FOR IN PRACTICALLY
EVERY APPORTIONMENT CASE: INJUNCTIONS AGAINST THE STATUS QUO FOR
REAPPORTIONMENT.
THANK YOU.
JUDGE OBERDORFER: THE MATTER IS SUBMITTED. (APPLAUSE)
JUDGE OBERDORFER: THERE WILL BE NO DEMONSTRATION.
MARSHAL. (PROCEEDINGS CONCLUDED AT 1:23 P.M.)
CERTIFICATE
I, EDWARD N. HAWKINS, OFFICIAL COURT REPORTER, CERTIFY THAT THE
FOREGOING PAGES ARE A CORRECT TRANSCRIPT FROM THE RECORD OF PROCEEDINGS
IN THE ABOVE-ENTITLED MATTER.
EDWARD N. HAWKINS, RMR