No. 00-97
In The
Supreme Court of the United States
Lois E. Adams, et al.,
Appellants,
v.
William Jefferson Clinton, et al.
Appellees
On Appeal from
The United States District Court
for the District of Columbia
JURISDICTIONAL STATEMENT
George S. LaRoche,
Counsel of Record
1 Valley View Avenue
Takoma Park, MD 20912
301-891-3857
QUESTIONS PRESENTED FOR REVIEW
On the premises that Congress holds the power of "exclusive legislation" over the District of Columbia and holds or has held identical power over thousands of other places throughout the United States where millions of people reside, Appellants ask:
Whether Appellants' rights to the equal protection of the laws are violated because Congress has not included them in existing apportionments of congressional districts, while all other people over whom Congress holds or has held identical powers under the Constitution are included in apportionments of congressional districts, and are so in the same manner and on the same terms as all citizens of the United States are included in such apportionments.
And provisionally, given the posture of this appeal:
Whether Appellants' rights to the due process of law were violated when the court below entered judgment on their case without addressing their unique claims, arguments, and evidence, instead basing its judgment on analysis of claims and arguments presented in a separate case based on antithetical theories and seeking adverse relief.
TABLE OF CONTENTS
QUESTIONS PRESENTED FOR REVIEW i
PARTIES TO THE PROCEEDING ii
TABLE OF CONTENTS iii
TABLE OF AUTHORITIES v
JURISDICTIONAL STATEMENT 1
OPINIONS BELOW 1
BASIS OF JURISDICTION 1
CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED IN THE CASE 1
STATEMENT OF THE CASE 1
A: Overview 1
B: Historical Background to Adams' Claims 4
C: Summary of Differential Treatment or Status 9
D: The Genesis of this Case 11
E: Advent of a Second, Independent Case 13
F: Proceedings and Opinions Below 14
DISCUSSION 20
A: The Court has Jurisdiction over this Appeal
under 28 U.S.C. § 1253 20
B: Adams was Properly before a Three-Judge
District Court under 28 U.S.C. § 2284(a) 21
1: Adams Presents a Constitutional Challenge
to Apportionment of Congressional Districts
under the Terms of Section 2284(a) 21
2: The Constitutional Questions
Presented are Substantial 27
3: The Court Has the Power
to Provide Equitable Relief 28
C: Compelling Equitable Considerations
Augur in Favor of Noting Jurisdiction 29
CONCLUSION 30
JURISDICTIONAL STATEMENT
Plaintiffs before a Three-judge District Court of the District of Columbia appeal from the final judgment of that court dismissing their demands for permanent injunctions.
OPINIONS BELOW
The opinions of the Three-judge District Court are reported at 90 F.Supp.2d 35-107 and are reproduced in Appendix ("App.") A (Memorandum Opinion of the majority), App. B (Judgment), and App. C (dissent of Judge Oberdorfer).
BASIS OF JURISDICTION
The Three-judge District Court entered judgment on March 20, 2000 and no further matters are pending before it. Notice of appeal was filed on May 17, 2000 (App. H). This Court has jurisdiction over this appeal under 28 U.S.C. § 1253.
CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED IN THE CASE
This case involves Article I, § 8, cl. 17 (the "District/Enclaves Clause") and Article IV, § 3, cl. 2 (the "Territories Clause") of the Constitution. Appellants' claims are based upon the implicit equal protection provision of the Amendment V. These provisions are reproduced in App. D.
The court below had jurisdiction under 28 U.S.C. § 2284(a) and Appellees' actions at issue in the case are authorized or defined under 2 U.S.C. §§ 2a(a), 2a(b), 2b, 2c, & 26, all of which are reproduced in App. E.
STATEMENT OF THE CASE
A: Overview
For more than three-quarters of our nation's life, millions of United States citizens who lived in thousands of places where Congress exercises the power of "exclusive legislation" under the Constitution were excluded from apportionments of congressional districts. The fact that Congress exercised the power of exclusive legislation over these places - the "federal enclaves," the former portion of the District of Columbia south-west of the Potomac River, and the continental territories - meant that, as a matter of law, they were not parts of the States or States in their own right. So long as these places were not States or parts of States, they could not be included in apportionments of congressional districts under Article I of the Constitution.
The legal status of all these places changed, however, and this change is at issue in Adams v. Clinton. Congress changed the status of these places, so they are now, legally, integral parts of the States or are States in their own right. Thus, the people who reside in these places are entitled to State citizenship and they are included in present apportionments of congressional districts under the terms of Article I.
Without amending the Constitution, without creating a unique, derivative class of solely "federal citizens," without undermining the plain terms of the Constitution, Congress could do for the District of Columbia (1) precisely what it did for all these places, for the power it exercises over the District is constitutionally indistinguishable from the power exercised over the other places to which it is compared in Adams. There is no textual or factual reason to limit the change to the other places, especially when the cost is denial of a plethora of fundamental rights of the residents of the District.
Because Congress has not treated the residents of the District of Columbia in the same way as it has treated all other, similarly-situated or identically-situated people and because there is no reason whatsoever for it (much less a compelling reason), Congress, acting by and through Appellees, violates the rights of the residents of the District of Columbia to equal treatment under the law. Therefore, the Court can and should restrain Appellees from executing or enforcing measures passed by Congress which reflect clearly favorable treatment of all people similarly-situated to the residents of the District of Columbia under the Constitution.
Generally, Adams v. Clinton asks the Court to order that the status quo shall not continue. Appellants demand permanent injunctions that no apportionment be reported by the President, 2 U.S.C. § 2a(a), or the Clerk of the House, 2 U.S.C. § 2a(b), nor enforced by the Sergeant at Arms of the House, which does not include the residents of the District of Columbia under the terms of the Constitution (App. F at 25-28). This relief leaves to the residents of the District of Columbia and to Congress the political decisions how to incorporate the non-federal portions of the District of Columbia into our federal system. (2)
And independently, this remedy and the arguments on which it's based would also repair a rift in the law defining the effects of the power of "exclusive legislation." The law defining the status of the federal enclaves and the District of Columbia was uniform until 1953. Since then, the Court has countenanced Congress' revised treatment of the enclaves, but the Court has never addressed the now-divergent treatment of the District of Columbia. Yet remnants of the older doctrine still create sporadic problems for the federal enclaves, indicating how this now-unsettled doctrine - the same which supports the divergent treatment of the District of Columbia - places the constitutionality of the otherwise salutary treatment of the federal enclaves in question. Adams offers a chance to repair the rift in the law and restate a unified doctrine of Congress' power of "exclusive legislation."
B: Historical Background to Adams' Claims
Under the Constitution, Congress holds or has held the power of "exclusive legislation" over four identifiable categories of physical places: (1) the present District of Columbia, (2) the former portion of the District south-west of the Potomac River, (3) the "federal enclaves," and (4) the continental territories.
Originally, the District of Columbia comprised 100 square miles; approximately one-third of it was south-west of the Potomac River. Constance McLaughlin Green, Washington; Village and Capital, 1800-1878, 3-22 (1962). Under the "District/Enclaves Clause," art. I, § 8, cl. 17 (printed in App. D), these places together comprised "one political community, united under one government." Bank of Alexandria v. Dyer, 39 U.S. (14 Pet.) 141, 145-46 (1840). Therefore, the former portion of the District was identically-situated to the remaining District as a subject of Congress' power of "exclusive legislation" under the Constitution.
Under the same Clause, art. I, § 8, cl. 17, Congress has acquired the power of "exclusive legislation" over what came to be called, collectively, "federal enclaves." See, e.g., West River Elec. v. Black Hills Power & Light Co., 918 F.2d 713, 718 (8th Cir. 1990). Congress's power over the enclaves is identical, constitutionally, to that held over the District of Columbia. Paul v. United States, 371 U.S. 245, 263 (1963); Fort Leavenworth R. Co. v. Lowe, 114 U.S. 525, 528, 532-33 (1885). By the middle of the Twentieth Century, Congress exercised the power of exclusive legislation over 5,050 federal enclaves, General Services Administration, Inventory Report on Jurisdictional Status of Federal Areas Within the States (1959), (3) where as many as a million people resided, Carl Strauss, Federal Enclaves-Through the Looking Glass-Darkly, 15 Syracuse L. Rev. 754 (1964). Today, at least three million people reside in federal enclaves which are military bases alone. Michael J. Malinowski, Federal Enclaves and Local Law: Carving Out a Domestic Violence Exception to Exclusive Legislative Jurisdiction, 100 Yale L. Rev. 189, n.1 (1990).
Finally, under the "Territories Clause," art. IV, § 3, cl. 2, Congress has held constitutionally identical power of exclusive legislation over the continental territories. (4) District of Columbia v. John R. Thompson Co., 346 U.S. 100, 105-06 (1953); Corporation of New Orleans v. Winter, 14 U.S. (1 Wheat.) 91, 95 (1816). Except for the original thirteen States, the three States carved from the original States, and Texas, all the rest of the United States was once under the same kind and degree of power as the District of Columbia remains today. Marion Clawson, Uncle Sam's Acres, 18-30, 38-39 (1951, 1970).
As noted above, analysis of the legal effect of Congress' power of "exclusive legislation" over all these places was uniform throughout most of our history. Since the rift in this uniformity first became apparent in consideration of Congress' treatment of the federal enclaves, the enclaves are a good place to focus discussion.
Although the federal enclaves are located within the geographic boundaries of admitted States, Congress' power of exclusive legislation once severed the residents of the enclaves from the States as a matter of law. Fort Leavenworth, supra, 114 U.S. at 528-29, 537-38. Therefore, when congressional districts were apportioned to each State, the residents of the federal enclaves were not included in any apportionments of any congressional districts; the residents of the federal enclaves did not vote for any members of the United States House of Representatives, nor for U.S. Senators, nor for any state legislators or governors. (5) Jurisdiction Over Federal Areas Within the States; Report of the Interdepartmental Committee for the Study of Jurisdiction over Federal Areas Within the States; Part I: The Facts and Committee Recommendation, 19-20, 49-58 (1956) ("1 JOFAWS"); Ibid., Part II: A Text of the Law of Legislative Jurisdiction, 219-25 (1957) ("2 JOFAWS"); U.S. Dept. of Justice, Land and Natural Resources Div., Federal Legislative Jurisdiction, 67-68 (1969).
The earliest legal statement of this doctrine was Reily v. Lamar, 6 U.S. (2 Cranch) 344 (1805). In Reily, the Court declared that by taking up residence in the District of Columbia, Reily lost his Maryland state citizenship. Id. at 356. Congress' assumption of the power of exclusive legislation severed the District from Maryland (and Virginia) and stripped State citizenship from those who lived within the District. This doctrine, rooted in analysis of the District of Columbia, defined the District and the federal enclaves for more than 150 years. See, e.g., Royer v. Bd. of Election Supervisors, 231 Md. 561, 191 A.2d 446, 449, cert. denied, 375 U.S. 921 (1963).
This uniform doctrine was disrupted in 1953, however, when the Court ruled in Howard v. Commissioners of Sinking Fund, 344 U.S. 624 (1953), that Congress's exercise of exclusive legislation over a federal enclave does not take the enclave out of the State within which it might be located, id. at 626-27, so does not sever State citizenship of the residents of the enclave. But while Howard marked the opening of a rift in the hitherto uniform doctrine defining the effect of Congress' constitutional power of exclusive legislation, Howard only gave judicial recognition to a wholesale shift in treatment of the federal enclaves by Congress.
Over a period of years, Congress had ceded increments of its legislative authority over the enclaves to the States, even though, in most cases, Congress did not yield its power of "exclusive legislation." See Howard, supra, 344 U.S. at 627. As Congress ceased "excluding" state power from the federal enclaves, the States extended their powers into the enclaves. Gradually, the federal enclaves came to be legal and political parts of the States. See Cornman v. Dawson, 295 F.Supp. 654, 656-58 (D. Md. 1969), aff'd sub nom Evans v. Cornman, 398 U.S. 419 (1970). This result followed even where Congress never completely ceded its power of "exclusive legislation."
Of course, since the federal enclaves came to be considered political parts of the States, the residents of the federal enclaves came to be treated as citizens of the States for all - or almost all - purposes. Most importantly to the issues in the instant case and insofar as the federal government was concerned, the residents of the federal enclaves had come to be included in the census as citizens of the States, thus included in determining congressional apportionments. Evans v. Cornman, 398 U.S. 419, 421 (1970).
Some problems remained for the residents of the enclaves, however, arising from actions by the States. Most States continued to maintain that the residents of the enclaves were still not citizens of the States for the purposes of voting in State and Federal elections. See Royer, supra. Their resistance ended with Evans, supra, where the Court held that, once a State treated residents of the enclaves for most purposes other than voting, the State couldn't exclude them from voting on an equal basis with all other citizens of the State. And even though Congress can still "restrict as well as extend the powers of the States within" the enclaves in the present and future, id., 398 U.S. at 423-24, Congress has not seen fit to "exclude" the States from the enclaves, which would re-segregate the enclaves from the States.
The net result of Congress' change of heart concerning the federal enclaves is that today, all residents of federal enclaves are apportioned to congressional districts, and all States are apportioned sufficient congressional districts to include all residents of the federal enclaves. Of course, because of the nature of the shift and under the terms of the Constitution, all residents of the federal enclaves also vote for U.S. Senators (which are not "apportioned," strictly speaking) and for state and local legislators, governors, mayors, and so on. And even though the Federal government rightly and properly continues to assert significant federal interests in the federal enclaves, these interests are not infringed by allowing the residents to be citizens of states in every respect, for every purpose.
The history of the former portion of the District of Columbia south-west of the Potomac River is really just a succinct version of this history of the federal enclaves. When the former portion of the District of Columbia was under Congress' power of "exclusive legislation," the residents were not residents of the Commonwealth of Virginia, so they were not apportioned to any congressional district. After Congress ceded its legislative powers to Virginia in 1846, however, Act of July 9, 1846, 9 Stat. 35, ch. 35, the residents of this portion of the District became full citizens of Virginia, and were apportioned to a congressional district.
Today, Virginia is apportioned eleven congressional districts. The most densely populated half of the eighth district is composed of the former portion of the District of Columbia. If that portion had not been ceded to Virginia in 1846 - and certainly if Congress had not also allowed Virginia to extend her legal and political powers into all the federal enclaves in the Commonwealth - Virginia would not have as many as eleven congressional districts today.
Congress' treatment of the final category - the continental territories - has been only slightly different from its treatment of the federal enclaves and the former portion of the District of Columbia south-west of the Potomac River. As a matter of law, Congress's power of exclusive legislation over the territories is identical in every way to its power over the enclaves and over both the former and present portions of the District of Columbia. See supra at 5. While Congress retained this power and did not admit the territories as States, the residents of these territories were not apportioned representation in Congress. Once Congress admitted a territory as a State and withdrew its power of exclusive legislation (except for places Congress "reserved" as federal enclaves or for Indians), the residents of the former territories (those living outside the enclaves or Indian Reservations) were apportioned representation in Congress.
All these places under Congress' power of exclusive legislation were woven into the political fabric of the United States without amendment of the Constitution or creation of derivative classes of citizenship or treatment of the residents as extraneous-but-privileged. All Congress had to do for the former portion of the District south-west of the Potomac and for the federal enclaves was withdraw its power of exclusive legislation and allow their incorporation into the States. All Congress had to do for the continental territories was admit them as States.
Through either course of action, today, the millions of residents of these places "are citizens of the United States and of the State wherein they reside." U.S. Const., amend. XIV, § 1, cl. 1. Today, these millions are included in apportionments of congressional districts and they are included under the same constitutional terms and conditions as are all citizens of the United States. U.S. Const., art. I, § 2 & amend. XIV, § 2; art. I, § 3 & amend XVII, [¶¶] 1 & 2.
There is one exception to this pattern. Congress has held out one place and insured that, of all places where Congress has or has had the power of "exclusive legislation" under the Constitution, this place is treated differently, such that the people who reside in the place remain excluded from any apportionment of congressional districts because they do not live in a State. This place is the District of Columbia.
C: Summary of Differential Treatment or Status
In light of this history, two related questions present themselves. Is there a clear textual reason in the Constitution for the District of Columbia to be treated differently than Congress has treated all other places over which it has or has had identical powers? If not, is there a compelling, factual, governmental purpose which necessitates such differential treatment? These are questions of first impression.
When courts have addressed the effects of "exclusive legislation" on the enclaves under the District/Enclaves Clause, art. I, § 8, cl. 17, they have not addressed the impact of their decisions on the District of Columbia. But a rift opened with Howard and Evans made it stark: the federal enclaves are treated differently than the District of Columbia is treated and it's not at all clear as a matter of constitutional law - much less as a matter of demonstrable fact - why.
Although most federal enclaves remain under Congress's power of "exclusive legislation" under the District/Enclaves Clause and although all enclaves - by definition - are places where there is a demonstrable federal interest, the people who live within the enclaves are citizens of the States. The doctrine enunciated by the courts has concluded that they are entitled to all the rights and responsibilities, privileges and immunities which arise from State citizenship. Of course, because they are citizens of a State, they are included in apportionments of representation in Congress.
Simultaneously, even though there is no demonstrable - much less compelling - federal interest, generally, in any of the District of Columbia outside the National Capital Service Area, see 40 U.S.C. § 136, the District of Columbia remains under Congress's power of "exclusive legislation" under the District/Enclaves Clause. But the residents are not citizens of any State and Congress has not taken the simple steps it has taken for all other places over which it holds identical powers which would make the residents of the District citizens of a State. Congress continues to "segregate" the District from the remainder of the country, just as all other places over which it holds identical powers were segregated in the past.
The differential treatment is most stark when the District of Columbia is compared to its former constituent portion south-west of the Potomac River. That portion was defined to serve the same purported purpose as the "Seat" of the Federal government, under the same exact words of the Constitution, yet it is now part of a sovereign State (though it embraces such critical governmental installations as the Pentagon). Those who live there, within sight of the Capitol, are included in apportionments, while those who live further away yet within the District of Columbia are not.
And the differential treatment is only less immediately apparent when the District of Columbia is compared to the continental territories. Congress has multiplied these United States to a number never contemplated by the Framers, including even islands in the middle of the Pacific Ocean. Meanwhile, those who live in a place the Framers themselves knew remain segregated from our federal system. Treatment of our continental territories is exemplary; it should be an example for treatment of the District of Columbia as well.
D: The Genesis of this Case
Adams v. Clinton challenges the fact that Congress treats the residents of the District of Columbia differently than it has treated all other people over whom it has now or has had identical powers under the Constitution.
Appellants are competent, adult residents of the District of Columbia. But for their residence in the District, each would be qualified to vote in any election under laws typical of those enacted in states. No Appellant works for the United States government or resides in a building owned or used by the federal government for any purpose. Despite the fact that Appellants have nothing to do with the "Seating" of the federal government and despite the fact that they live in neighborhoods indistinguishable from urban neighborhoods anywhere in the United States, Appellants are not included in any apportionment of any congressional district.
Therefore, Appellants filed suit in June of 1998 (Complaint reproduced in App. F), claiming that the Congress of the United States, acting by and through the President of the United States, the Clerk of the House of Representatives, and the Sergeant at Arms of the House of Representatives (the agents charged by Congress to calculate apportionments of congressional districts according to congressional directions, report those apportionments to the states, then enroll and admit Representatives pursuant to those apportionments, see App. E) infringe Appellants' rights to the equal protection of the laws and to republican forms of governments under the Constitution. (6) Appellants demanded injunctions that no calculations, reports, or ensuing actions, part and parcel of apportionments of congressional districts, be undertaken or enforced, which do not include the residents of the District of Columbia. See supra at 3-3 and infra, App. F at 25-27.
Because Adams concerned apportionment of congressional districts, Appellants asked that the case be set before a Three-judge District Court pursuant to 28 U.S.C. § 2284(a). Appellants' request for a three-judge District Court was granted on November 6, 1998 (see App. G).
Adams also lodged separate claims against Defendant/ Appellee Clinton and an additional Defendant - the District of Columbia Financial Responsibility and Management Assistance Authority. These claims concerned congressional government of the District through the agencies of the Defendants (see App. F at ¶¶ 7, 12, 26-29, 70-72, 91, 93, 95, 112) and did not concern apportionments. Since the Three-judge District Court below remanded these claims to a single District Judge (see infra), these claims were not addressed in the judgment of the Three-judge Court from which appeal is taken, so these claims are not now before the Court. (7)
E: Advent of a Second, Independent Case
Several months after Appellants filed their suit, an unrelated group of plaintiffs filed a separate suit styled Alexander v. Daley. Although Alexander is also concerned with representation in Congress, Alexander is based on legal arguments which are antithetical to those in Adams. Also, Alexander seeks a remedy which, itself, would violate the rights of the residents of the District under the arguments and construction of the Constitution found in Adams.
Generally, Alexander asks for a judgment that Congress pass unique legislation to provide some form of representation for the residents of the District of Columbia, either by legislatively construing Article I of the Constitution to treat the District as if it were a State for the purposes of Article I of the Constitution (but for no other purpose) or by legislatively construing the District to be part of Maryland for the purposes of voting for Maryland's representatives in Congress (but for no other purpose). Thus, Alexander's remedy is predicated on the same assumption challenged in Adams: that Congress may single the District out for differential treatment not extended to any other place.
As the Constitution is construed by Adams, either of Alexander's remedies would itself violate Appellants' rights to equal treatment because each would treat the residents of the District of Columbia differently than the residents of similarly-situated places are treated and their resultant status would be inferior to that enjoyed by residents of similarly-situated places. Under Alexander, all persons under Congress' power of "exclusive legislation" other than the residents of the District of Columbia would be included in apportionments under the un-augmented terms of the Constitution, see generally Powell v. McCormack, 395 U.S. 486 (1969), neither by way of legislative concession nor legislative definition of those terms (not to mention that all enjoy all other rights and responsibilities of State citizenship), while the residents of the District would remain beholden to Congress for the terms and conditions of entry to the House.
F: Proceedings and Opinions Below
Sua sponte, the single judge to whom both cases had been assigned asked all parties to show cause why the cases should not be consolidated. Against a showing by Adams that consolidation presented serious risks of confusion and conflict, the court consolidated (but did not merge) the cases.
Separate Motions for Summary Judgment were filed by each set of plaintiffs in the two cases below and separate Motions to Dismiss were filed by each defendant in each case. All dispositive motions were heard in oral argument on April 19, 1999. Eleven months later, on March 20, 2000, the Three-judge District Court issued its judgment (reproduced in Appendices A, B., & C, infra).
The Three-judge District Court remanded Adams' issues concerning Congressional governance of the District (App. F at ¶¶ 7, 12, 26-29, 70-72, 91, 93, 95, 112) to the original single judge to which the case was first assigned, declining to exercise jurisdiction over issues which did not concern apportionment of congressional districts (App. A at 4-6). Since these issues were not addressed on the merits by the Three-judge Court, they are not before this Court on appeal.
The Three-judge District Court found that Plaintiffs in both cases have standing and that the questions presented are justiciable (App. A at 6-15 & C at 1 n.1), but the majority of the Three-judge Court decided against Plaintiffs in both cases (App. A at 16-60 & App. B). Unfortunately, neither the majority of the Three-judge Court nor the sole dissenting judge analyzed the actual arguments, evidence, or claims presented in Adams. Rather, the majority analyzed the claims and arguments presented in Alexander which, by definition, are distinct and antithetical to those presented in Adams.
Over half the majority's memorandum (App. A at 15-49) is devoted to analysis of "the Alexander plaintiffs' contention[:]"
that District residents can fairly be characterized as citizens of a "state," as the term was intended in Article I, under either of two theories[: . . .] that the District of Columbia itself may be treated as a state through which its citizens may vote [or] that District citizens may vote in congressional elections through the State of Maryland, based on their "residual" citizenship in that state[.]"
(App. A at 16). Not only is this claim not made in Adams, it is contrary to the claims made in Adams (App. F at ¶¶ 35-36). So barely a sixth of the majority's memorandum is left to discussion of all remaining claims, including those in Adams.
It appears the majority may have intended to address a claim made in Adams in its discussion of claims "that the District's lack of representation in the House deprives its residents of the equal protection of the laws" (App. A at 50-54). This discussion, however, is also actually limited to the claim in Alexander. In general, the difference between the equal protection claims in the two cases is as follows.
Adams asserts Congress violates the rights of D.C. residents because it has not placed D.C. residents in the same status (actual citizenship in states) as it has placed all other people over whom Congress has or has had identical powers. Thus, Adams seeks strictly equal treatment of all similarly-situated subjects of Congress' constitutional powers.
Conversely, Alexander asserts Congress violates the rights of D.C. residents because it has not placed D.C. residents in a unique status in which they can exercise an opportunity to vote comparable to that exercised by all other citizens of the United States. Thus, Alexander seeks a comparable result (opportunity to do something everyone else does, i.e., vote) by way of strictly unique treatment.
The court below was clearly concerned with the latter claim alone. The court opened its analysis observing that "the plaintiffs" contend that "the District's lack of representation in the House deprives its residents of the equal protection of the laws [and] renders them unequal to the residents of the fifty states and of the federal enclaves." App. A at 50 (citing Alexander Plaintiffs' Summary Judgment Memorandum), which is to start with the comparable result at issue in Alexander. But thus the court below starts its analysis by ignoring the threshold of Adams' analysis, which is to compare similarly-situated, discrete populations under Congress' power of "exclusive legislation" and trace their differential treatment. Reynolds v. Sims, 377 U.S. 533, 565 (1964); D.C. Fed. of Civil Assn's v. Volpe, 434 F.2d 436, 439 (D.C. Cir. 1970).
The differential treatment at issue in Adams is that Congress opted to facilitate a transition for all people similarly-situated to the residents of the District, such that they are all citizens of the States, while Congress has blocked that transition for the residents of the District. So, if all people similarly-situated to residents of the District of Columbia were not now included in apportionments of congressional districts, Adams might have no equal protection claim to be included in apportionments of congressional districts. (8)
It's also important to note that, contrary to Alexander, Adams makes no claim that people who are not citizens of States are entitled to equal participation in the Federal Government with the citizens of the States. The United States is a federal system; all citizens (other than residents of the District of Columbia) enjoy the benefits and burdens of living under dual sovereignty - that of a State and that of the United States. Before Howard, supra, the uniform doctrine of "exclusive legislation" provided a judicial rationale for committing some people to the sole sovereignty of the Federal Government. But the rift in the law of "exclusive legislation" which opened in Howard shows that there is no constitutional basis-much less necessity-for sole sovereignty, which is a necessary component of Alexander's comparison of residents of the District to all citizens of the United States.
To resolve Alexander's equal protection claim, the court below observed:
the inability of District residents to vote is a consequence of Article I. Similarly . . . the contrasting ability of enclave residents to vote is not the consequence of legislative line drawing, but rather of the Supreme Court's decision in Evans that enclave residents have a constitutional right to vote-a holding we are unable to extend to District residents both because of distinctions between the manner in which Congress has exercised its authority over the enclaves and the District, and because of the Supreme Court's decision in Albaugh [v. Tawes, 233 F.Supp. 576 (D.Md.), judgment aff'd per curiam, 379 U.S. 27, reh. denied, 379 U.S. 940 (1964)] . . . Hence, the differing treatment is the consequence not of legislative determinations but of constitutional distinctions.
App. A at 53. While this analysis may be dispositive of the claim made in Alexander, it cannot determine the equal protection claim in Adams for, if brought to bear on the claim in Adams, the analysis merely begs the question presented.
The "distinctions between the manner in which Congress has exercised its authority over the enclaves and the District" are challenged in Adams because Adams shows that these are legislative, not constitutional distinctions. As Adams demonstrated in the Record (uncontroverted by the Defendants/Appellees), half a century ago, millions of people outside the District of Columbia were deemed not to be State citizens precisely because Congress exercised over them the same power it still exercises over the District. See U.S. Dept. of Justice, Land and Natural Resources Div., Federal Legislative Jurisdiction, 67-68 (1969). In short, all people over whom Congress exercised the power of exclusive legislation were excluded from apportionments as "a consequence of Article I," but Congress legislatively changed that distinction. See, e.g., Langdon v. Jaramillo, 80 N.M. 255, 454 P.2d 269, 271 (1969) ("The legislative action necessary to confer state jurisdiction over the area of the federal enclave . . . is by an act of the Congress." (emphasis added)).
Adams asserts that District residents' rights to equal treatment are violated by the differential treatment of the enclaves as compared to the District of Columbia. To suggest that this question is settled by the differential treatment itself (see App. A at 46-47 n.52 ("the difference in the way in which Congress has exercised its authority over enclaves and the District distinguishes this case from Evans") & at 53) merely begs the question whether there is a compelling governmental reason for the differential treatment at issue.
As the issue was argued in Adams below, Article I of the Constitution certainly defines who may be included in apportionments for congressional representation, but Article I of the Constitution doesn't define who - of all the people over whom Congress has the power of exclusive legislation - is or is not included among the citizens of the states. If Congress has allowed all but those in D.C. to be actual citizens of the states, then why not those in D.C.?
The court's reference to Albaugh is telling, however, for Albaugh teeters on the brink of the rift in the law of "exclusive legislation." Albaugh is based, entirely, upon Reily v. Lamar, see supra at p. 6. 233 F.Supp. at 578. The doctrine expressed in Reily was directly countermanded, however, in Howard v. Commissioners of Sinking Fund, see supra at p. 6. Unless the rift is repaired, either Albaugh and its ilk fall or Howard and its progeny (including Evans v. Cornman, supra) fall. The court below ignored the jeopardy and lost a chance to repair the rift by adopting the arguments presented in Adams. (9)
Overall, it's not clear from the Three-judge District Court's memoranda whether the court concluded that, for extra-constitutional reasons, the residents of the District of Columbia are not entitled to the equal protection of the laws or equal treatment as compared to all other people over whom Congress has identical constitutional powers or whether, in reaching its conclusion on the claims in Alexander, the court merely ignored the arguments and evidence in Adams. It's as if the claims, arguments, and evidence presented in Adams evaporated, leaving behind only the name of the case and judgment against it.
This failure to treat Adams v. Clinton as a distinct case gives rise to the second, provisional question on appeal. If the Court has any doubt about its jurisdiction or the merits of this appeal, the proper course is to reverse the District Court's judgment on Adams and remand Adams for full analysis of its unique claims, arguments, and evidence. On the other hand, these questions, ultimately, must be analyzed and answered here. The Record from below can be reconstituted (10) and the legal issues addressed de novo.
For the most part, Appellants agree with the substance of the Three-Judge District Court majority's analysis of the claims and arguments presented in Alexander v. Daley and, while the dissent's memorandum is encouraging in many ways, Appellants respectfully disagree with Judge Oberdorfer that Congress can legislatively define the District as a state for the purposes of Article I of the Constitution and representation in Congress (App. C at 24-49, 62). (11) Thus, the dissent does not speak for or upon the merits of Adams v. Clinton and the majority certainly does not dispose of the claims or arguments of Adams v. Clinton.
The District Court nevertheless entered judgment dismissing all claims and demands in Adams v. Clinton concerning apportionment of representation in Congress, including dismissing the Plaintiffs'/Appellants' demand for injunctions (App. B). (12) Thereupon, Plaintiffs below filed their Notice of Appeal (App. H). (13)
DISCUSSION
A: The Court has Jurisdiction over this Appeal
under 28 U.S.C. § 1253
The Court has jurisdiction over this case under 28 U.S.C. § 1253, which provides that "any party may appeal to the Supreme Court from an order granting or denying, after notice and hearing, an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges."
This case was filed and Appellees were served process on June 30, 1998. Appellees filed Motions to Dismiss in lieu of answers on or about September 18, 1998. These Motions, along with Appellants' Motion for Summary Judgment, were heard in oral argument before a Three-Judge District Court on April 19, 1999. On March 20, 2000, the Three-judge District Court entered an order granting the Motions to Dismiss filed by Appellees with regard to Petitioners' claims concerning apportionment of congressional districts. The relief demanded against Appellees included permanent injunctions (App. F at 24-27) , so dismissal of Appellants' claims against Appellees (App. B) necessarily entailed denial of those permanent injunctions. (14) Thus, this appeal (App. H) is from an order denying permanent injunctions after notice and hearing, leaving the question whether the issues on appeal were required to have been heard and determined by "a district court of three judges."
B: Adams was Properly before a Three-Judge
District Court under 28 U.S.C. § 2284(a)
Under 28 U.S.C. § 2284(a), "[a] district court of three judges shall be convened . . . when an action is filed challenging the constitutionality of the apportionment of congressional districts[.]" (15) Section 2284 is jurisdictional; "the 'shall' language of the statute . . . make[s] the convening of such a court a jurisdictional requirement once it becomes clear that there exists a nonfrivolous constitutional challenge to the apportionment of a [congressional district.]" Armour v. State of Ohio, 925 F.2d 987, 989 (6th Cir. 1991) (en banc); Cf. McLucas v. DeChamplain, 421 U.S. 21, 28 (1975). Direct appeal to the Supreme Court is appropriate and the appeal should be heard on the merits when the constitutional claim is substantial and not obviously frivolous or wholly without merit. Washington v. Confederated Tribes of Colville, 447 U.S. 134, 148 (1980); Goosby v. Osser, 409 U.S. 512, 518 (1973).
1: Adams Presents a Constitutional Challenge
to Apportionment of Congressional Districts
under the Terms of Section 2284(a)
Generally, apportionment is the division of the population of a given polity into constituencies whose members are charged with the selection of representatives to govern the polity. In short, it's "the process of granting of representation to a citizen or a group of citizens[,]" Alfred de Grazia, General Theory of Apportionment, 17 Law and Contemporary Problems 256, 256-57 (1952), by designation of the geographic districts which will send representatives to a legislative body, R.K. Scher, J.L. Mills, & J.J. Holating, Voting Rights and Democracy; The Law and Politics of Districting, 4-6 (1997). Apportionment, in short, is about drawing lines and it necessarily involves the questions of who draws the lines and who is on each side of each line.
The Constitution of the United States provides that "[t]he House of Representatives shall be composed of Members chosen every second Year by the People of the several States[.]" Art. I, § 2, cl. 1. The Fourteenth Amendment provides that "Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed." Sect. 2. These provisions, taken together, define the United States House of Representatives as the product of the apportioned votes of the citizens of the States. Conversely, no one who is not a citizen of a State is entitled to be included in apportionment of congressional districts. See Oregon v. Mitchell, 400 U.S. 112, 124, 147-50, 213-16, 237-40, 285-92 (1970) (per Black, J., Douglas, J., Harlan, J., Brennan, J., & Stewart, J.); see also de la Rosa v. United States, 32 F.3d 8, 10 (1st. Cir. 1994), cert. denied, 514 U.S. 1049 (1995).
While these constitutional provisions are the foundation of apportionment of congressional districts, Congress has a number of powers which have significant and direct impact on apportionments. Textually, the Constitution allows Congress to "make or alter" regulations governing the "Times, Places and Manner of holding Elections[,]" U.S. Const., art. I, § 4, and it's accepted that Congress has ultimate control of the "apportionment process" itself. See Franklin v. Massachusetts, 505 U.S. 788, 791-92 (1992); U.S. Dept. of Commerce v. Montana, 503 U.S. 442, 448-55 (1992). To allocate seats in the House of Representatives to the States, Congress settled on a mathematical formula called "the method of equal proportions." 2 U.S.C. § 2b; Lawrence F. Schmeckebier, The Method of Equal Proportions, 17 Law and Contemporary Problems 302 (1952). This formula satisfies the constitutional criteria that the number of Representatives not exceed one for every 30,000 persons, that each State shall have at least one Representative, (16) and that district boundaries shall not cross State boundaries between the States, Dept. of Commerce, supra, 503 U.S. at 448, and, as closely as possible, that apportionment of congressional seats will conform to the principle of "one person, one vote," Wesberry v. Sanders, 376 U.S. 1, 14 (1964).
To make the process "self executing" (so Congress doesn't have to engage in fierce partisan battles every ten years), Franklin, supra, 505 U.S. at 791-92, Congress has charged the President with ministerial task of making the proper calculations according to Congressional dictates. 2 U.S.C. § 2a(a); Franklin, supra, 505 U.S. at 798-99. The Clerk of the House (or Sergeant at Arms, when the Clerk is unable to discharge the duty) is charged to notify the governors of each State of the apportionments calculated by the President, 2 U.S.C. § 2a(b), and to make and keep a roll of the duly-elected Representatives, 2 U.S.C. § 26. Finally, the Sergeant at Arms is charged to allow no one onto the floor of the House itself but those Representatives on the roll. See Rules IV.3 & IV.4 of the United States House of Representatives.
But Congress's charge to the President and the enumerations reported back to the Clerk and so on all assume certain preexisting, defined places in which people are to be counted: the States. And with regard to what places are States or parts of States, Congress has other powers which have great, cumulative impact on apportionments.
Specifically, Congress has the power "[t]o exercise exclusive Legislation in all Cases whatsoever, over [the District of Columbia and] over all Places purchased by the Consent of the Legislature of the States in which the Same shall be," U.S. Const., art I, § 8, cl. 17 (emphasis added), and Congress has identically plenary power over the continental Territories, U.S. Const., art. IV, § 3, cl. 2. Also, Congress has the power to admit new states into the Union, U.S. Const., art. IV, § 3. The net effect of these provisions as they relate to apportionment of congressional districts is that Congress can increase the number of "the several States" (as the phrase is used in Article I, § 2) and Congress can adjust the number of people within "the several States."
Indeed, since the original thirteen states ratified the Constitution, all other states were admitted by Congress and the political size of all other states has been expanded by Congress. See supra at 7-9. Thus, Congress has held a remarkable power to decide who is included among "the People of the various States" under (not just "for the purposes of") Article I of the Constitution.
So long as Congress held land as "Territory," American Insurance Co. v. Canter, 26 U.S. (1 Pet.) 511, 542-43 (1828), or held land under the plenary power of "exclusive Legislation," Reily, supra, 6 U.S. at 356-57; 1 JOFAWS 19-20, 54-55; 2 JOFAWS 242-43, those places were not States or parts of States. Thus, the people who lived in all these places were not "People of the several States," U.S. Const., art. I, § 2, entitled to be included in apportionments of congressional districts. See, e.g., Fed. Legislative Jurisdiction, supra at 67-68. Then, for each categorical subject of congressional power other than the District of Columbia, Congress opted to admit the Territory as a State. See, e.g., Pub. L. No. 85-508, 72 Stat. 339 (1958); Pub. L. No. 86-3, 73 Stat. 4 (1959). Congress opted to end its absolutely "exclusive" jurisdiction over the federal enclaves and allow the States to incorporate the enclaves politically and legislatively. See Cornman, supra, 295 F.Supp. at 657-59. Congress opted to wholly retrocede its jurisdiction to a State. Act of July 9, 1846, 9 Stat. 35, ch. 35; Phillips v. Payne, 92 U.S. 130 (1876). (17)
Finally, once Congress opted to admit the Territories as States, to allow the States to exercise State authority within the federal enclaves, and to allow Virginia to reincorporate the former portion of the District south-west of the Potomac River into Virginia, these places were either States or parts of States for all purposes. The net result is that, presently, Congress has decreed that there be 435 geographic districts which each shall elect a representative to the United States House of Representatives, see Act. of Aug. 8, 1911, Pub. L. 62-5, ch. 5, 37 Stat. 13 (1911); Emanuel Celler, Congressional Apportionment- Past, Present, and Future, 17 Law and Contemporary Problems 268, 271 (1952), and all places now or ever before under Congress' power of "exclusive legislation," except the District of Columbia, are now included in those 435 districts. The most densely populated half of one of those districts is the former portion of the District of Columbia retroceded to Virginia in 1846. Today, the citizens who reside in what was called Alexandria County when it was a part of the District of Columbia, Green, Washington; Village and Capital, supra, at 26-27, are apportioned representation in the Eighth Congressional District of the Commonwealth of Virginia.
But while Congress has apportioned representation to all other areas to which the District of Columbia might be compared as a subject of the powers of Congress under the Constitution, the residents of the District of Columbia are completely "fenced out" of presently defined apportionments. See Carrington v. Rash, 380 U.S. 89, 94 (1965). Congress has denied the residents of the District of Columbia "access to the political process equal to the access of other groups." Chapman v. Meier, 420 U.S. 1, 17 (1975). Their opportunity to exercise the franchise is completely denied. Kramer v. Union Free School District, 395 U.S. 621, 626-27 (1969); see also Davis v. Bandemer, 478 U.S. 109, 133 (1986); Rosario v. Rockefeller, 410 U.S. 752, 756-57 (1973).
The residents of the District of Columbia are in a position worse than that of the plaintiffs in Baker v. Carr, 369 U.S. 186 (1962), where a defined group voters in Tennessee had no "practical opportunities for exerting their political weight at the polls" id. at 258-59 (Clark, J., concurring; emphasis added). In contrast, the citizens of the District of Columbia have no opportunities- practical or otherwise-for exerting their political weight in Congress. Likewise, Appellants are in a worse position than the aggrieved plaintiffs in Reynolds v. Sims, supra, which challenged apportionments in Alabama which diluted the weight of the plaintiffs' population group. Ruling in favor of the plaintiffs there, the Court said "the right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise." Id., 377 U.S. at 555 (emphasis added). Just so, in strict comparison to its treatment of all other places over which Congress exercises the power of "exclusive legislation" under the Constitution, Congress has singled out this sixty-seven square mile area in which over a half-million people live and "deprive[d it] of the ballot altogether." Avery v. Midland County, Texas, 390 U.S. 474, 481 n.6 (1968) (emphasis added).
Adams complains of a situation where a discrete geographic area elects no one while other, similarly-situated areas are included in apportionments. When the government of a jurisdiction provides that its component representatives be elected by the citizens of the jurisdiction, each citizen "has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction." Dunn v. Blumstein, 405 U.S. 330, 336 (1972); Kramer, supra, 395 U.S. at 626-29; Gray v. Sanders, 372 U.S. 368, 379-80 (1963).
If a deviation of 78% between areas violates constitutional principles, Board of Estimate of City of New York v. Morris, 489 U.S. 688, 702 (1989), if a deviation of even 26% between areas violates constitutional principles, Swann v. Adams, 385 U.S. 440 (1967), then a deviation of 100% between areas subject to the power of the sovereign cannot be justified and should be strictly scrutinized by the Court. An apportionment of congressional districts under which the residents of one discrete geographic place are "denied access to the political process equal to the access of other groups" represented in the legislature which rules them all, Chapman, supra, 420 U.S. at 17, where the voting strength of that discrete population is "minimized or canceled out," Fortson v. Dorsey, 379 U.S. 433, 439 (1965) (emphasis added), where the citizens have been systematically and perpetually "'[f]enc[ed] out' from the franchise," Carrington, supra, 380 U.S. at 94 (emphasis added), the scheme of apportionment is presumptively invalid.
The evidence submitted in the Record below and the law shows that the rights of the citizens of the District of Columbia to treatment equal to that enjoyed by all other people over whom Congress holds or has held identical constitutional powers are violated. To answer that the District simply is not a State or part of a State (which Adams admits and asserts as an element of the case) is only to beg the question why all other people who live in places subject to identical powers of congress are living in States or parts of States, while the citizens of the District of Columbia languish.
2: The Constitutional Questions
Presented are Substantial
A constitutional claim is substantial unless it is either "obviously without merit or . . . its unsoundness so clearly results from previous decisions . . . as to foreclose the subject." Bailey v. Patterson, 369 U.S. 31, 33 (1962). In determining whether a case was properly before a three-judge district court, "claims are constitutionally insubstantial only if the prior decisions inescapably render the claims frivolous; previous decisions that merely render claims of doubtful or questionable merit do not render them insubstantial[.]" Goosby, supra, 409 U.S. at 518; accord Ex parte Poresky, 290 U.S. 30, 32 (1933).
If the precise issues raised in Adams have not been decided by the Court, then the questions are not "constitutionally insubstantial" or foreclosed. Certainly, any question which has never been raised, much less analyzed, cannot have been settled or deemed "answered."
No opinion of the Court precludes the claims made in Adams. While the Court has issued a number of opinions concluding that the District of Columbia is separate from the States, see, e.g., Palmore v. United States, 411 U.S. 389, 395 (1973); National Mutual Ins. Co. of Dist of Col. v. Tidewater Transfer Co., 337 U.S. 582, 587-88 (1949); Metropolitan R. Co. v. District of Columbia, 132 U.S. 1, 9 (1889); Hepburn and Dundas v. Ellzey, 6 U.S. (2 Cranch) 445, 452-53 (1804); Reily, supra, 6 U.S. at 356-57, the Court has never addressed the stark equal protection question presented in Adams v. Clinton. Even the Memorandum of the Three-judge District Court below (App. A) does not preclude the claims made in Adams, for its analysis is devoted to entirely different claims made in Alexander.
Also, the Court has never addressed the rift which opened in Howard v. Commissioners of the Sinking Fund, supra, leaving the District of Columbia as the only place under the now-aberrant "extraterritorial" doctrine first enunciated in Reily v. Lamar, supra, and perpetuated for the next 150 years. Thus, the Court is presented with a question of first impression in Adams.
3: The Court Has the Power
to Provide Equitable Relief
Adams presents a substantial, justiciable claim for equitable relief and the relief demanded would result in reapportionment. See Karcher v. Daggett, 462 U.S. 725, 730-31 (1983); Wright, Miller & Cooper, Federal Practice and Procedure; Jurisdiction 2d § 4235 at 606. Injunctions barring or prohibiting the Appellees from reporting apportionments which do not include the residents of the District of Columbia would end the discriminatory treatment complained of in the case. More positively, as happened in Baker v. Carr, supra, and in Reynolds v. Sims, supra, such injunctions would leave open the field of political movement required of the citizens of the District and of the political branches of the federal government to place the District of Columbia in a position where the citizens would be constitutionally qualified to be included in apportionments of congressional districts.
While Congress has plenary power to govern the District, Palmore, supra, 411 U.S. at 397-98, the power is not unlimited by the Constitution, id; National Mutual Ins. Co., supra, 337 U.S. at 602. The District/Enclaves Clause does not render the entire remainder of the Constitution "unconstitutional." The Court can and should restrain violations of constitutionally guaranteed rights, even when the violations occur as a result of grants of plenary power. And since "[t]he history of apportionment in the United States . . . indicates conclusively that the one single factor that has always been lacking has been that of enforcement[,]" Celler, supra, 17 Law and Contemporary Problems at 275, the Court is only providing what the legislature at issue - Congress - has not.
C: Compelling Equitable Considerations
Augur in Favor of Noting Jurisdiction
Any question whether Congress intended a case such as this one to fall under the provisions of 28 U.S.C. § 2284(a) must be resolved in Appellants' favor. The plain language of the Act and construction of the Act by the courts covers the issues and claims in Adams, howsoever unique those issues and claims might be among all "usual" apportionment cases. See Wright, Miller & Cooper, supra, at 606.
Also, it must be noted that the present, final government of the District of Columbia is Congress itself. By fencing the District off from the rest of the country, Congress has retained for itself a laboratory for experiments it could not authorize elsewhere. The courts should be strictly critical of any scheme which so protects the parochial power and interests of the governmental body primarily responsible for the scheme. See League of Women Voters v. Diamond, 965 F.Supp. 96, 101 (D. Me. 1997) ("If the election law in question has the effect of immunizing the current leadership at the expense of new or minority views, the Court's precedent demonstrates little tolerance. Such laws are subjected to strict scrutiny and, generally, held unconstitutional.").
Finally and most importantly, the rift in a doctrine which once was uniform is a cogent reason to note jurisdiction of Adams and analyze the issues in detail. While the most egregious results of the rift give rise to Adams v. Clinton, sporadic problems also destabilize the lives of all people subject to Congress' powers of "exclusive legislation." (18) Adams presents a coherent analysis which resolves the doctrine of Congress' power of exclusive legislation.
CONCLUSION
For these reasons, the Court should note jurisdiction of this appeal.
But if the Court doubts its jurisdiction over this appeal or is inclined to affirm the lower court on the basis of the lower court's analysis, the appropriate course is to reverse the judgements entered by the Three-judge District Court in this case on March 20, 2000 and remand the case to the Three-judge District Court for reconsideration on the case's merits without reference to the claims, arguments, or demands made in Alexander v. Daley. To enable the Three-judge District Court to do this on the basis of all claims, arguments, and evidence submitted Adams, the Court should also reverse all subsequent judgments of the single District Judge entered on March 20 and on April 27, 2000. Finally, to insure that the court below has an accurate Record for analysis, Appellants request a writ of mandamus under 28 U.S.C. § 1651(a), directing the Clerk of the District Court to reconstitute the official record in Adams v. Clinton, eliminating from the Record all documents not filed by the Plaintiffs in Adams, by the original Defendants in Adams (addressing the merits of Adams), or by the amici curiae American Friends Service Committee, the D.C. Statehood-Green Party, Shadow Senator Strauss, the Committee for the Capital City, and the Eleven Law Professors.
Respectfully submitted,
George S. LaRoche
1. - or at least all of the District outside the area where the
Federal government is actually "Seated." 2. It's important to note what 3. Had Congress been so inclined, it could have extended its
power of exclusive legislation to cover one third of the land area of
the United States. See Stephen E, Castlen & Gregory O. Block,
4. The continental territories are distinguished from the so-called
"insular territories" such as Puerto Rico, 5. Except in a few, accidental instances where local state officials
either were unaware of or ignored the legal "extraterritoriality" of the
enclaves.
6. Though 7. These claims are now on appeal to the District of Columbia
Circuit.
8. This is only a result of the strict legal arguments in 9. The majority below did address one aspect of 10. The docket misidentifies which parties filed various
documents in each case and the docket (wrongly) names an
attorney associated with counsel for 12. Judge Oberdorfer entered judgment on claims in the
remanded portion of the case on March 20 and April 27, 2000.
13. Plaintiffs in the companion case, 14. The Three-judge District Court's order disposed of all issues
before that Court, so this appeal is not interlocutory.
15. The entirety of Section 2284(a) is reproduced in App. E.
16. Each State shall have as many congressional districts as it has
been apportioned Representatives. 2 U.S.C. § 2c (printed in App. E).
17. It might also be observed that, in many situations, the