Bench Memos

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Making a Federal Case


The redoubtable Hans von Spakovsky joins the chorus of critics (I’m a member in long standing) pointing to the obvious unconstitutionality of proposed legislation to give the District of Columbia a regular seat in the House of Representatives.  In today’s Wall Street Journal, we’re told that “[i]f the bill is enacted, it faces a trip to the Supreme Court.”  But maybe not.  Hans homes in on an important point: even though the bill provides explicitly for judicial review of its constitutionality, the courts might not find anyone has standing to file a claim against it.  He writes:

Even if the bill contains a section that purports to provide lawmakers standing, there is grave doubt that the courts would respect it. Members of the Senate sued in 1997 regarding a statute that contained such a section, but the Supreme Court ruled that the senators lacked the direct and personal injury required for standing. The type of political injuries that the D.C. bill would inflict might not be sufficient to meet this standard, either.

I surmise that Hans is referring to the ill-fated line-item veto act, first challenged by Sen. Robert Byrd, who was held not to have standing despite statutory provision for it, in Raines v. Byrd.  It took a claim of real injury to supply standing for the act’s invalidation in Clinton v. City of New York the following year.

But the “District of Columbia House Voting Rights Act of 2009″ isn’t even as helpful in providing standing as the line-item veto act was.  In its current Senate incarnation as S. 160, it provides only this in Section 8: “If any action is brought to challenge the constitutionality of any provision of this Act or any amendment made by this Act, the following rules shall apply . . .”  This is followed by some language about what court shall hear the case, and expediting review by the Supreme Court.  No special effort is made to ease the rules of standing or to bless any particular type of claimant–though such an effort might do no good, as Hans points out.

The long and the short of it is that reassurances from the Act’s supporters that the courts can sort out all the constitutional arguments are just so much smoke at this point, designed to ease the consciences of members of Congress as they set about violating the nation’s charter.


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