|
IN THE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Lois E. Adams, et al,
Plaintiffs,
versus
| Civil Action No: 98-1665 (LFO, MBG, CKK)
William Jefferson Clinton, et al,
Defendants
REPLY OF PLAINTIFFS IN ADAMS V. CLINTON
TO DEFENDANTS HOUSE OFFICERS' OPPOSITION
TO PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
Defendants Jeff Trandahl in his official capacity as the Clerk of the
House of Representatives and Wilson Livingood in his official capacity as the Sergeant at
Arms of the House ("House Officers") have filed a memorandum in Opposition to
the Plaintiffs' Motion for Summary Judgment (Opposition), along with a Statement of Facts
in dispute. Throughout their Opposition, the Defendants reiterate erroneous portrayals of
the issues and demands presented by the Plaintiffs in this case. The Defendants appear to
confuse this case with Alexander v. Daley, which was consolidated with it. At any rate,
the claims in this case are set out in plain terms in the Complaint, and it would seem to
be a principle of the due process of law to obvious to require authority that the literal
terms of a Complaint prevail over attempts by the defendants in the case to rewrite the
claims at issue in the case, which is precisely what the Defendants seek to do. [page 2]
Reply to prefatory footnotes
In footnote 1 on pages 1-2, the Defendant discusses the powers of the
District's Delegate to the House of Representatives. The point of this discussion isn't
clear, but the location of the footnote indicates the Defendants may intend the suggestion
that the Plaintiffs already have "congressional representation." If so, the
proposition is untenable.
[T]he votes in the wallets of the Delegates are only counterfeit bills.
They can never have a final effect on legislation in the House. . . . In a democratic
system, the right to vote is genuine and effective only when . . . there is a chance,
large or small, that, sooner or later, the vote will affect the ultimate result. The votes
of the Delegates in the Committee of the Whole cannot achieve that; . . . they are
meaningless.
Michel v. Anderson, 817 F.Supp. 126, 147-48 (D.D.C. 1993), aff'd, 14 F.3d 623 (D.C. Cir.
1994). In footnote 3 on pages 2-3, the Defendants seem to take
issue with the fact that the Plaintiffs present some arguments in their Memorandum in
Support of Summary Judgment which are similar to arguments presented in the Plaintiffs'
Opposition to the Defendants' various Motions to Dismiss. The latter were presented to
counter the Defendants' arguments, while the arguments in support of summary judgment are
framed to present the Plaintiffs' case. Certainly, all parties are entitled to frame their
respective positions without being shackled to false characterizations of their positions
created by their opponents precisely to diminish the strength of their actual positions.
Also in footnote 3, the Defendants refer to the fact that the
Plaintiffs do not discuss their demands for injunctions against the various Defendants in
their Motion for Summary Judgment. This is because the declaratory judgments will accord
some degree of relief in their own right, so full consideration of the injunctions against
the Federal Defendants might be left for a later date when they can be carefully weighed
in light of the issues as they stand after the declaratory judgments are entered (a
consideration of special gravity, in light of the unusual nature of these prohibitive
injunctions). Deferral of consideration of injunctions against the Federal Defendants is
analogous to [page 3] the standard procedure defendants seek in tort and personal injury
cases--bifurcation of the "liability" and "damages" stages of the
case--so it's surprising the Defendants would make an issue of it. [footnote 1: The
Plaintiffs' suggestion that the Court defer consideration of injunctions against the
Federal Defendants has nothing to do with the Defendant's arguments in their Motion to
Dismiss.] On the other hand, the injunctions against the Control Board are ripe for
consideration and the Court can enter them or some degree of them following entry of
declaratory judgment.
Reply to the preface to the Defendants' Argument
On page 3 the Defendants open their argument saying that the Plaintiffs
ask "whether the District is constitutionally entitled to elect a congressional
representative, notwithstanding the plain language of article I, 2, cl. 1 of the
Constitution" (emphasis added). Likewise, on page 5, the Defendants suggest that this
case turns on the proposition whether "article I, 2, cl. 1 must be read to
permit District residents to vote in congressional elections[.]" These statements
make it clear, again, that the Defendants confuse this case with Alexander v. Daley. That
being the case, due process of law mandates that this confusion be untangled, so the
Plaintiffs' unique claims can be addressed on their own merits, rather than subsummed in
alien and even antithetical claims.
The Plaintiffs have stated plainly that they do not seek to elect any
representatives to Congress by virtue of legislation or artifice treating the District
"as if" it was a state and the Plaintiffs have never made any argument based on
the straw propositions whether "article I, 2, cl. 1 must be read to permit
District residents to vote in congressional elections[.]" Thus, the entire discussion
in Section I of the Defendants' Opposition (pp. 5-8) is technically irrelevant to Adams v.
Clinton.
The Defendants' argument on pages 3-5 can be boiled down to the
assertion that, since the District is not a state, it cannot elect representatives to
Congress. The Plaintiffs agree with this argument, but this is not the end of the matter,
by any means (as the Plaintiffs demonstrated in their Memorandum in Support of Summary
Judgment). [page 4] The Plaintiffs claims challenge whether Congress can continue to
segregate the District from the rest of the country, so it cannot be said that Plaintiffs
seek continued segregation with a proviso of mere "representation." The
exclusion of the District of Columbia from the political fabric woven from the rest of the
United States is at the very heart of the issues in this case; it cannot be inserted as
the basis for the distinction itself.
On pages 4-5, the Defendants present the circular argument that the
Plaintiffs are not entitled to inclusion in apportionments because they are excluded from
apportionments. Thus, the Defendants' argument begs the questions actually presented in
this case.
Article I, 2 & 3 (as amended by the 17th Amendment) of
the Constitution provide that representatives to Congress shall be elected by the citizens
of the states. Once (as Plaintiffs show in their Memorandum in Support of Summary
Judgment), the residents of the former portion of the District of Columbia south-west of
the Potomac, the residents of the federal enclaves, and the residents of each continental
territory were barred from electing representatives to Congress, because they were not
citizens of states. Now, all these residents vote for representatives in Congress; they do
so because they are now citizens of states.
For instance, Alaska was not a state, so elected no representatives to
Congress. Then, Congress admitted Alaska to the United States as a State, so the residents
became are entitled to elect representatives to Congress. In the Act admitting Alaska,
however, Congress held out federal enclaves to be ruled under the Enclaves Clause. But in
the same Act, Congress specified that the residents of the federal enclaves would be full
citizens of the State of Alaska, so would be included in apportionments of representation
in Congress.
For instance, one of the seats apportioned to Virginia by Congress is
apportioned by the State of Virginia to the residents of a physical territory which
includes the entire former portion of the [page 5] District of Columbia south-west of the
Potomac River. The residents of this--Virginia's 8th Congressional District--are included
in apportionments only because Congress took steps to cede the former portion of the
District of Columbia to Virginia. Act of July 9, 1846, 9 Stat. 35, ch. 35. The Defendants
execute and enforce Congress' actions.
Instead of addressing the Plaintiffs' arguments and uncontroverted
factual proffers, the Defendants insert the condition of being segregated from the states
as the conclusion, saying the Plaintiffs are not citizens of the states because they are
kept separate from the states. This rhetorical procedure is called "begging the
question." It silences the question without answering it.
The Defendants close the preface to their Argument (on page 5) with a
false dichotomy. The two alternatives they present are not the alternatives before the
Court in Adams v. Clinton.
Reply to Section I of the Defendants' Argument
It's almost impossible for the Plaintiffs to respond to the arguments
presented by the House Officers in section I of their Opposition (pp. 5-8) because the
House Officers do not discuss the case Adams v. Clinton. Instead, it appears that the
Defendants rebut arguments in the case Alexander v. Daley, for the Plaintiffs in Adams
make absolutely none of the arguments, claims, or demands which seem to be addressed by
the Defendants in this section of their Opposition.
On page 7 and in footnote 6 on page 7, the Defendants discuss the 23rd
Amendment, saying that "[l]egislation granting statehood to the District of
reunifying the District with Maryland would be inconsistent with the 23rd Amendment which
recognizes the District as a permanent non-State entity[.]" But there is no language
in the 23rd Amendment or elsewhere in the Constitution which defines the District's status
as "permanent." Likewise, admission of the District as a State or unification of
it with an existing State would not be "inconsistent" with the 23rd Amendment,
since the Amendment, by its plain terms, does not bar either action. [page 6]
Rather, admission of all of the District of Columbia other than the
National Capital Service Area as a State or unification of it with a State, with provision
that the remaining "district" (former National Capital Service Area) would be
strictly non-residential, or conversion of the entire District of Columbia into a strictly
non-residential national park, would merely render the 23rd superfluous. Under either
eventuality, the "number of electors . . . to which the District would [then] be
entitled," Amendment 23, 2, cl.1, would be zero. A "state" with no
residents can have no Senators or Representatives, which means it could have no Electors.
See U.S. Const., art. I, 2, 1; art. I, 3, 1 (amended by amend. 17,
1); art. II, 1, 2. While it might be aesthetically distasteful to have
superfluous text in the Constitution, it is not legally intolerable, for we tolerate other
superfluous text in the Constitution, without problems. [footnote 2: See U.S. Const, art.
I, 8, 11 (arcane "Letters of Marque and Reprisal" are nullities under
the Treaty of Paris (1856) and a number of other binding treaties); 9, 1
("Importation" of people, i.e. slaves, and the laying of a tax or duty upon
them, is forever barred by the 13th Amendment); 10, 1, cl.2 (again, arcane
"Letters of Marque and Reprisal" are nullities); art.V (re: the restriction that
there be no amendments until after 1808); art. VII (historically interesting surplusage,
once the Constitution was ratified); amend. XII (the party slate system has obviated
independent choice of President and Vice-President); amend XX, 6 (surplusage, once
the Amendment was ratified); amend XXII, 2 (surplusage, once the Amendment was
ratified).]
Further, admission of the entire existing District of Columbia
(including the National Capital Service Area) as a State or unification of it with an
existing State would make the 23rd Amendment, at most, redundant, just like the District
and Enclaves Clauses, U.S. Const., art. I, 8, 17, are redundant in light of
the Supremacy Clause, U.S. Const., art. VI, 2. See Hancock v. Train, 426 U.S. 167,
178 (1976) (equating Supremacy Clause and District Clause); West River Elec. v. Black
Hills Power & Light Co., 918 F.2d 713, 716 n.6 (8th Cir. 1990) (quoting Black Hills
Power & Light Co. v. Weinberger, 808 F.2d 665, 669 n.4 (8th Cir.), cert. denied, 484
U.S. 818 (1987). In such a case, the "District constituting the seat of Government of
the United States" would be coextensive [page 7] with the whole State resulting from
the admission of the District as a State or unification of it with a State. Thus, whether
it would be by virtue of Article I, 1 as amended by the 12th Amendment, or by the
23rd Amendment, the citizens of the State would have a voice in the electoral college.
The only practical problem which might arise in this situation would
be, if the number of citizens in the resulting whole State were sufficiently large to
entitle the State to more electors to the college "than the least populous
State," the 12th and 23rd Amendments would be in tension. The 23rd Amendment would
then work as an anti-democratic choke on exercise of the franchise, just as it already
works by its very terms, limiting the present District to the least number of electors
possible, without regard to the population of the District. And again, this would not be
the only instance in which different provisions of the Constitution would be in tension,
compare U.S. Const., art. I, 9, 4 with amend. XVI, so it would not bring
catastrophe.
But finally, it's plain common sense to expect that admission of the
District as a State or unification of it with a State (or conversion of it into a
non-residential national park) would be followed in short order--if not accompanied by--a
movement to repeal the 23rd Amendment. Repeal would certainly be prudent, and guaranteed.
In light of these arguments and others presented previously in the case, see Plaintiffs'
Memorandum in Support of Summary Judgment at 12-14, it simply cannot be said that the 23rd
Amendment bars admission of the District as a State or unification of it with a State (or
conversion of it to a non-residential park), much less that it bars the declaratory
judgments or injunctions requested in this case, which stop far short of the possible
political eventualities which the citizens of the District might pursue in the future.
Reply to Section II of the Defendants' Argument
On pages 8-9, the Defendants argue that the Plaintiffs' claim in Count
One of the Complaint is legally deficient because "the function of the equal
protection" provisions of the Constitution is to [page 8] test "the validity of
classifications actually drawn by legislatures." The Defendants' attempt to drag
equal protection jurisprudence back to the nineteenth century is untenable.
It is . . . historically inaccurate to view equal protection analysis
as focused solely on the nature of classifications. . . . The one thing that can safely be
said is that the [Supreme] Court does not reserve equal protection analysis for cases
uniquely turning on classification problems. . . . Equal protection concerns itself with
inequality of treatment, regardless of whether an act of "classification" has
occurred. . . . [Thus, s]tatutory classifications are not examined in isolation, but
rather are probed in the context of the state's legal system to determine their character.
As Chief Justice Hughes wrote in Gregg Dyeing Co. v. Query[, 286 U.S. 472, 480 (1932)]:
The question of constitutional validity is not
to be determined by artificial standards. What is required is that [governmental] action,
whether through one agency or another, or through one enactment or more than one, shall be
consistent with the restrictions of the Federal Constitution. There is no demand in that
Constitution that the [government] shall put its requirements in any one statute. It may
distribute them as it sees fit, if the result, taken in its totality, is with the
[government's] constitutional power.
The Supreme Court has continued to look to the totality of a
[government's] relevant laws, rather than to single enactments, when evaluating claims of
discrimination affecting fundamental rights . . . . "Let not they left hand know what
thy right hand doeth" is not a principle of constitutional law.
Gerald L. Neuman, Territorial Discrimination, Equal Protection, and Self-Determination,
135 U. Pa. L. Rev. 261, 283, 284 n.103, 297-99 (1987) (other citations and footnotes
omitted); see also Plaintiffs' Reply to Responses of All Defendants (filed Aug. 14, 1998)
at 23-24.
On pages 9-10, the Defendants argue that it is the Constitution and not
"the law" which stands between the Plaintiffs and the political rights denied to
them. This argument begs the question presented in Section I of the Plaintiffs' Memorandum
in Support of Summary Judgment (re: Count One of the Complaint). The residents of the
former portion of the District of Columbia south-west of the Potomac River, the residents
of the federal enclaves, and the residents of the continental territories were once
"not citizens of the States" (Opposition at 9), just as are the residents of the
District of Columbia. The Defendants insert the fact that their status has been changed by
Congress, which is the discriminatory action challenged by the Plaintiffs, as the reason
for the discriminatory [page 9] action. This is like saying that a pattern of laws
allowing white people to vote but disenfranchising black people "cannot violate the
equal protection of the laws because being black means black people are not entitled to
vote;" such arguments use the criterion of discrimination to legitimate the
discrimination. Such arguments, again, beg the question.
On pages 10-11, the Defendants address the Plaintiffs' comparison of
the status of the residents of the District of Columbia to that of the residents of the
former portion of the District south-west of the Potomac River, saying "[i]t is
perfectly rational for Congress" to treat these areas differently. Rationality is not
the threshold which the Defendants must prove Congress has crossed; the differential
treatment must serve compelling governmental purposes and be narrowly tailored to
accomplish those purposes. City of Mobile v. Bolden, 446 U.S. 55, 77 n.25 (1980); Kramer
v. Union School Dist., 395 U.S. 621, 627-30 & n.10 (1969); Shapiro v. Thompson, 394
U.S. 618, 634 (1969).
But insofar as the Defendants' various assertions of factual
"reasons" for discriminatory treatment of the District, as compared to the
former portion of the District south-west of the Potomac River, are proffered in
ostensible attempt to shoulder the Defendants' burden of demonstrating compelling
governmental reasons for the differential treatment, see Plaintiffs' Memorandum in Support
of Summary Judgment at 56, they are wholly rebutted by Dr. Kenneth R. Bowling in his
Second Affidavit (attached to the Plaintiffs' Reply to President Clinton's Opposition as
Exhibit W) at 5 and by Dr. Howard Gillette in his Affidavit (also attached to the
Plaintiffs' Reply to Defendant Clinton's Opposition as Exhibit X) at 14-15,
18-19, 22-2 and attachment.
In footnote 8 on pages 10-11, the Defendants quote Senator Kennedy on
the factual impossibility or irrationality of retrocession. Assuming, arguendo, that
Senator Kennedy might be a dispositive authority on the matter (noting that his views are
not necessarily based on facts and noting that retrocession and statehood are not issues
for the Court to decide in this case), Plaintiffs attach the [page 10] Senator's comments
why admission of the District as a sovereign State is possible, prudent, and proper. See
Exhibit Z (133 Cong. Rec. 7063 (1987)). [footnote 3: Senator Kennedy has also identified
the reasons State legislators have and probably will continue to ignore pleas to respect
the political rights of the citizens of the District: it is "too liberal, too urban,
too black, and too Democratic." quoted in Newsweek, Sept. 4, 1978, at 20.] In short,
closing one door doesn't close all.
On page 11 the Defendants state that "Congress simply has no
constitutional obligation to act." This suggestion is both legally indefensible and
irrelevant. [footnote 4: Once Congress has conferred favors on all but a discrete,
circumscribed population, it is obliged by the equal protection principles of the United
States Constitution to "equalize" the situation. Were the Defendants' remarkable
proposition correct, Brown v. Bd. of Education, 347 U.S. 483 (1954), and innumerable other
cases would be nullities.] The Plaintiffs are not seeking any order that Congress act. The
Plaintiffs seek declarations that they have certain rights, that Congress (through the
agency and instrumentality of the Defendants and others) violates those rights, and
injunctions barring Congress from violating the Plaintiffs' rights (barring Congress from
acting).
On pages 11-13, the Defendants address the Plaintiffs' comparison of
the status of the residents of the District of Columbia to that of the residents of the
federal enclaves. Again, the Defendants beg the question, inserting the accomplished fact
of the differential treatment as the reason for the differential treatment. In so doing,
the Defendants ignore the overwhelming showing made by the Plaintiffs that the residents
of the federal enclaves were once not citizens of any state, which undermines the
Defendants' argument. See Exhibit Y (attached to Plaintiffs' Reply to Defendant Clinton's
Opposition) at 72. Insofar as the Defendants proffer tenable "legal" reasons for
discriminatory treatment of the District, as compared to the federal enclaves, they are
rebutted in the Second Affidavit of Kenneth R. Bowling (Exhibit W) at 5.
The Defendants' argument on page 13, arising from Maryland's act of
cession, overlooks that the Virginia Act of cession included absolutely identical
language, which didn't stand in the way of [page 11] reunification of the former portion
of the District south-west of the Potomac River with Virginia. Virginia Act of Dec. 3,
1846, II, 13 Laws of Virginia 43 (Hening 1823), reprinted in 1 D.C. Code 23-33 (1991
repl.) ("[A] tract of country . . . is hereby forever ceded and relinquished to the
Congress and government of the United States, in full and absolute right, and exclusive
jurisdiction[.]"). The absolute contiguity of power cannot be made clearer than this.
On pages 13, the Defendants address the Plaintiffs' comparison of the
status of the residents of the District of Columbia to that of the residents of the
continental territories. The gist of the Defendants' argument is to "rebut"
demands the Plaintiffs do not make.
On pages 13-15, the Defendants set up yet another straw man to knock
down, saying that the Plaintiffs' equal protection claim "appears to be based upon
the premise, for which no authority is cited, that the Equal Protection Clause trumps
other potentially inconsistent constitutional provisions[.]" Of course, Plaintiffs
cite no authority for this proposition because the Plaintiffs do not propose it! The
Plaintiffs contend that the Constitution's equal protection provisions trump congressional
action which treats similarly situated persons differently, unless there are compelling
governmental reasons for the differential treatment. The rest of the Defendants' arguments
in rebuttal of their straw man are nullities, either because the Defendants rebut
arguments the Plaintiffs do not make or because the Defendants beg the question, positing
the fact of discriminatory treatment as the reason for the same discriminatory treatment.
Reply to section III of the Defendants' Argument
On pages 15-19, the Defendants challenge whether the Plaintiffs are
entitled to republican forms of government under the Guarantee Clause. In support of their
argument, the Defendants cite authorities which do not analyze the meaning of the term
"State" in the Clause (at least in a manner which has any relevance to Adams v.
Clinton). Thus, these authorities don't support the Defendants' [page 12] theory that the
Plaintiffs cannot be beneficiaries of the Clause. [footnote 5: For instance, the
Defendants cite the Records of the Federal Convention of 1787 (Farrand, ed.) in footnote
11. For the Court's convenience, the cited page is appended to the Plaintiffs' Reply. The
single sentence on the cited page does not define or explain how the proposed
"guarantee" could extend to any entity other than to people in a place. This use
of authority is an example of how the Defendants use other authorities throughout this
case. They cite an authority which applies a principle at issue in this case, but to
different ends in a different context than in this case. Then the Defendants assert that,
because the authority applied the principle differently than as is done in this case, the
authority necessarily excludes, denies, or prohibits application of the principle as is
done in this case. But simple silence means nothing, and it certainly doesn't mean the
unmentioned possibility is necessarily excluded or barred.]
Generally, in this part of their Opposition, the Defendants refute the
common sense proposition that, when a term (like "State") is used in a major
section of a document (like in Article IV of the Constitution), it means the same thing
each time it's used, unless the text of the document specifically defines or necessitates
different meanings. This practice is commonly referred to as reading a term in one place
"in pari materia" with the term in other places, which means the term refers to
"the same matter or subject." Blacks Law Dictionary, 711 (5th ed. 1979); see
Frederick Schauer, Easy Cases, 58 So. Cal. L. Rev. 399, 430-33 (1985) (discussing the
practice, without using the Latin phrase). At the very least, the burden is on the
Defendants to demonstrate that the term "State" in the Guarantee Clause must be
read or applied differently than it is with regard to the other Clauses in Article IV, for
the text of the Article itself does not differentiate usage and the cases the Defendants
cite certainly don't support the Defendants' surprising call to abandon simple logic and
grammar.
On page 16, the Defendants refer to Article IV of the Constitution, in
which the Guarantee Clause lies, as "a grab bag of unrelated provisions." This
trivializes the Article, which compiles crucial provisions defining relations of the
people of the various States with one another and between the people of the various States
and the government of the United States. See William M. Wiecek, The Guarantee Clause of
the U.S. Constitution, 77 (1972). [page 13]
On pages 17-18, the Defendants challenge a line of cases cited by the
Plaintiffs in support of their argument that the term "State" in the Guarantee
Clause should be read to apply to the District because other Clauses in Article IV which
the term "State" appears apply to the District (Plaintiffs' Memorandum at
59-62). The Defendants' characterization of these cases is remarkable, but insofar as
credible, only provokes the question whether Congress violates the rights of the citizens
of the District to the equal protection of the laws because Congress selectively applies
the Clauses of the Constitution to the District, to the detriment of the citizens.
Essentially, the only inherent difference between the Plaintiffs'
construction of these cases (in their Memorandum in Support of Summary Judgment at 59-62)
and the Defendants' construction of these cases (Opposition at 16-18) turns on the
question whether the cases involve the various Clauses in Article IV at least in part of
their own force or only by Congressional indulgence. Plaintiffs argue from the former
understanding; the Defendants argue from the latter. But even if the Defendants are
correct in their reading, then Congress violates the Plaintiffs' rights by selecting which
Clauses of Article IV to bring to bear on (or to the benefit of) the District.
For instance, in footnote 14, the Defendants cite In re Tapp, 16 B.R.
315, 320-21 (Bankr. D. Alaska 1981). If the theory propounded in Tapp is accurate, then it
must follow that Congress, by legislative indulgence, has treated the District of Columbia
"as a State" for the purposes of the Full Faith and Credit Clause, art. IV,
1, cl. 1; see also Jackson v. United States, 441 A.2d 1000, 1002-03 (D.C. 1982)
(quoting Senate Report 91-405). The House Officers' admit as much in their Reply to the
Plaintiffs' Opposition to Motion to Dismiss (Nov. 25, 1998) at 18. This same conclusion
necessarily follows when the Defendants discuss Teare v. Committee on Admissions, 566 A.2d
23 (D.C. 1989) (Opposition at 17-18), saying Teare is "unique because Congress
created the D.C. court system with the intention of making the District courts analogous
to the State courts." [page 14]
In both instances, the theory underlying the Defendants'
Opposition--that the Clauses of Article IV have been "applied" to the District
of Columbia only by virtue of legislative indulgence--hangs on a choice made by Congress
to extend the benefits of the Full Faith and Credit Clause or the Privileges and
Immunities Clause to the citizens of the District, and a choice made by Congress to not
extend the benefits of the Guarantee Clause to the District. In other words, the theory
necessarily begs the broader question implied in Count One of the Complaint whether
Congress doesn't violate the rights of the citizens of the District by continually
segregating them from the remainder of the United States, picking and choosing which
Clauses of the Constitution "apply" here (according to whether they threaten to
deprive Congress of its plaything). Thus, the Defendants' argument in opposition to the
Plaintiffs' claims under Count Two of the Complaint merely makes Count Two of the
Complaint an instance when Congress violates the Plaintiffs rights to equal protection of
the laws. This may make Count Two a significant "subset" of Count One, but it
doesn't vitiate it.
All in all, however, it is proper to read Article IV's reference to
"State" to apply to the District, not only on its own terms, but also because
Congress has read all uses to run to the District except for the Guarantee Clause, which
would threaten Congress' use of the District. The burden is on the Defendants to show
otherwise or--if the Defendants' theory of legislative indulgences is tenable--the burden
is on them to demonstrate that there are compelling governmental reasons to extend the
benefits and burdens of all the other Clauses of the Fourth Article of the Constitution to
the District of Columbia, withholding the benefits of the Guarantee Clause.
Finally, the Defendants never explain how the Guarantee Clause could
possibly work under their theory that "State" means something other than the
citizens. For instance, if the government of Alabama erected a monarchy, to whom could the
benefits of the Clause run, if not to the residents of Alabama? The benefits couldn't run
to the government, if it was a king, or to the State as an [page 15] entity, if it was a
monarchy. Thus, the Defendants' whole theory on this point depends on the now dead concept
that the "State" is an entity with its own volition and "rights." See
Wiecek, supra, at 171-72, 242-43, 301 (on the status quo ante theory following the Civil
War and on the Clause). [footnote 6: "States" are no longer deemed operative
entities holding corporate "rights" vis-…-vie the federal government. The
rights at issue in Article IV are those of the citizens of the States, not of the States
themselves, with whom the federal government has a direct and unmediated relationship. See
Plaintiffs' Memorandum at 63-65.]
In footnote 15, the Defendants attempt to refute the Plaintiffs'
argument that the Guarantee Clause applied to the District when Congress took sovereignty
over the District. See Deborah Jones Merritt, The Guarantee Clause and State Autonomy:
Federalism for a Third Century, 88 Colum. L. Rev. 1, 36, 40 (1988); see also Plaintiffs'
Opposition to Federal Defendants' Motions to Dismiss at 69 n.39. The Defendants' cite
Reily v. Lamar, 6 U.S. (2 Cranch) 344 (1804) and Hobson v. Tobriner, 255 F.Supp. 295
(D.D.C. 1996), but Reily doesn't mention the Guarantee Clause (it was not an issue in the
case), much less mention the Plaintiffs' argument that the Clause applied when Congress
took sovereignty over the District. Hobson doesn't address the Plaintiffs' argument either
and the Plaintiffs have shown it is tenuous authority (see Plaintiffs' Reply to Responses
of All Defendants (August 14, 1998) at 20-22), which the Defendants don't try to
rehabilitate.
On page 19, the Defendant states that it is "illogical" for
the Plaintiffs to suggest that, as to the District, Congress is not a republican form of
government. Their assertion stands on the theory that the Constitution defines a
republican form of government, but falls in the face of the facts of the actual relation
between Congress and the citizens of the District. The Plaintiffs agree that the
Constitution defines a republican form of government, but the definition does not
necessarily control the facts. Just as Congress not infrequently violates the First
Amendment, despite its clear prohibitions, Congress violates the Guarantee Clause by
ruling the District as a "monarchy." See [page 16] Wiecek, supra, at 62, 64-65,
73. While Congress may continue to conform to its constitutional definitions for all the
other citizens of the United States, Congress deviates from that norm when it rules over
the citizens of the District of Columbia.
CONCLUSION
The Defendants make absolutely no factual showing, nor do they present
any legal argument, which undermines the Plaintiffs' showing of law and fact in support of
the Plaintiffs' Motion for Summary Judgement. To the extent that the Defendants' proffer
any factual "reasons" for the perpetuation of the status quo, those
"reasons" are rebutted by the Plaintiffs' rebuttal Exhibits.
[The] plain language of Rule 56(c) [of the Fed. R. Civ. P.] mandates
the entry of summary judgment . . . against a party who fails to make a showing sufficient
to establish the existence of an element essential to that party's case, and on which that
party will bear the burden of proof at trial. In such a situation, there can be "no
genuine issue as to any material fact," since a complete failure of proof concerning
an essential element of the nonmoving party's case necessarily renders all other facts
immaterial.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Therefore, the Court should grant
the Plaintiffs' Motion for Summary Judgment against the Defendants House Officers.
Respectfully submitted,
George S. LaRoche
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