Editore"s Note
Tilting at Windmills

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February 26, 2009

WHEN THE GOP GIVES UP ON FEDERALISM.... The residents of the District of Columbia pay federal taxes, but have no voice in Congress. A measure is finally near passage that would, at long last, give D.C. a vote in the House of Representatives.

But before that happens, Senate Republicans want to ignore their professed principles and tinker a bit with the city's governance.

Opponents of a bill that would award the District its first seat in the House of Representatives fought back yesterday with a blitz of amendments in the Senate, including one to repeal the city's gun-control laws that appeared to have significant support. [...]

Sen. John Ensign (R-Nev.) said he was introducing the amendment [to undo the city's gun laws] because the D.C. Council "has continued to enact onerous and unconstitutional firearms regulations" despite the Supreme Court decision last year overturning the city's ban on handguns.

He produced a large chart on the Senate floor that showed the city's murder rate over the years.

"Can you honestly tell me that gun control in D.C. has been effective?" Ensign asked.

Think about that. A lawmaker from Nevada will be gracious enough to let 600,000 American taxpayers have a vote in the House, but only if he approves of their local gun-control laws.

This is absurd. Just as a thought experiment, imagine what Ensign would say if Democrats said, "We'll let Carson City residents have a voice in Congress, but only if they pass stricter gun-control laws." Ensign would be apoplectic, and give impassioned speeches about "local control," "federalism," and Congress intervening on an issue that local representatives can address without federal mandates. And he'd be right.

But Republican principles suddenly disappear when it comes to D.C. As Clay Risen noted, "And Republicans wonder why D.C. votes overwhelmingly Democratic. Maybe it's because for all their talk of states' rights and federalism, when it comes to Washington the GOP is aggressively paternalistic, to the point where a senator from Nevada can, with a straight face, presume to tell Washingtonians the best way to run their city."

If John Ensign wants to shape D.C.'s gun laws, he has another option. He can move to Washington, run for city council, and introduce a proposal to change the city's existing policy.

Steve Benen 12:30 PM Permalink | Trackbacks | Comments (31)

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Hypocrisy is the standard for control freaks.

Posted by: Former Dan on February 26, 2009 at 12:28 PM | PERMALINK

Republicans are very flexible about principles. They keep two sets in the closet depending on whether they like the issue at hand or not.

Nice to see they can go both ways, isn't it? ;)

Posted by: Curmudgeon on February 26, 2009 at 12:29 PM | PERMALINK

SB, I love the blog and really enjoy your analysis. But I think you're way off on this. THERE IS NO FEDERALISM WITH RESPECT TO DC. Period. All stop. Federalism is the coexistence of two sovereigns, i.e., states and the feds. But DC is not a sovereign. More importantly, the Constitution entrusts its care to Congress.

And this proposed law to give DC the vote is grossly unconstitutional. But you know, Dems have to score some points.

Posted by: AA on February 26, 2009 at 12:32 PM | PERMALINK

The Heller decision opened the door to restoration of Second Amendment rights in D.C., which any reasonable and sane person should embrace. But it's wholly out of line for Ensign to put this rider on the pending legislation. Your comment about Carson City was apt, and if Ensign wants to see improvements in gun owners rights in D.C., he can apply persuasion in more effective ways.

Posted by: andrew on February 26, 2009 at 12:36 PM | PERMALINK

You used in one sentence the words "Republican," "principles," and "governance." The result of this sort of construction is always gibberish and probably should be avoided.

Posted by: Greg Worley on February 26, 2009 at 12:37 PM | PERMALINK

Shouldn't an amendment to a bill be at least tangentially relevant? How does gun ownership have anything to do with representation?

Posted by: doubtful on February 26, 2009 at 12:39 PM | PERMALINK

ericfree if your going to make a comment the least you can do is pay the smallest amount of attention to the subject at hand. What the fuck has Yates got to do with representation in Washington D.C.?

Posted by: Gandalf on February 26, 2009 at 12:46 PM | PERMALINK

This is just another "proof" that Republicans are thirsty for martyrdom. Am I really expected to believe that Ensign the GOPer wants to be surrounded by hundreds of thousands of angry, gun-wielding Democrats? Please.........

Posted by: Steve W. on February 26, 2009 at 12:46 PM | PERMALINK

Given the repubs enthusiasm to party like it's 1993, I suspect Ensign is merely trying to get the NRA riled up. They were great repub attack dogs back then, and repubs need all the help they can get today.

Posted by: JoeW on February 26, 2009 at 12:47 PM | PERMALINK

Sen. Ensign probably has ties to the Mexican drug cartels, who rely on smuggled US guns in order to terrorize everyone who defies their authority.

"Terrorize everyone who defies our authority," could be a Republican Party policy, for both domestic and foreign policies, as well as the primary policy of drug cartels.

Posted by: Brojo on February 26, 2009 at 12:52 PM | PERMALINK

We'll give Nevadans Congressional representation....

But, only if they outlaw Prostitution !!

(and stop electing dumb Senators like Ensign)

Posted by: MSierra, SF on February 26, 2009 at 1:05 PM | PERMALINK

But we gotta look out for them thare darkies, 'n make shure they don't git 'emselves in trouble,'n,'n we gotta look out for them thare poor gun makers too, 'cause times is tough. They's good ol' boys whut do a lot fer 'Merica. GOPers are always lookin' out fer minorities. ;-)

Posted by: -jlinge- on February 26, 2009 at 1:05 PM | PERMALINK

AA is correct. The sovereign in DC is the congress. They have delegated some of their responsibilities by granting limited home rule. DC is the nation's capitol, run by the congress, not the people who happen to live there. Right or wrong, fair or unfair, that's what the constitution requires. Would we want the nation's capitol located in someone else's sovereign territory, under their control?

As a practical matter I'm not sure Ensign's proposal helps the NRA. Just as Bush made an excellent foil to Bin Laden, DC has made an excellent foil for the NRA. It took hundreds of years and the DC city council to get the Supreme Court to say that the second amendment conferred an individual right. Restrictive gun laws will give this court a chance to include "shall issue" concealed carry as a "bear arms" requirement, and maybe more.

Posted by: CH on February 26, 2009 at 1:08 PM | PERMALINK

The idea that Congress, by passage of a law, can give a Representative to DC is blatantly unconstitutional. In 1978, they correctly tried to do this by passing a Constitutional Amendment. But it failed to get approval in enough states. Then again, the Constitution doesn't really matter to liberals when it stands in their way.

Posted by: Chicounsel on February 26, 2009 at 1:29 PM | PERMALINK

Washington DC should be returned to the state of Maryland. It would continue to have its own city government, as do other large cities and counties in Maryland. It would comprise one, or possibly two, new Congressional districts within Maryland, so DC residents would be represented by one or two members of Maryland's delegation in the House. And of course DC residents would be represented by Maryland's two Senators. Moreover, DC residents would have representation in the Maryland state legislature.

Meanwhile the Federal government would retain ownership and control of its actual properties in DC, e.g. Federal buildings, monuments and parks.

There are those who would oppose such a solution for political reasons, but in my view political and economic integration of DC with Maryland would have benefits for both DC and Maryland residents and would be relatively straightforward to implement.

In any event, Congressional control of DC is an atrocity that has been long and consistently used by right-wing reactionary Republican legislators to overturn the will of the people of DC and trample their basic human right to self-government under the jackboot of right-wing extremist authoritarianism -- this latest attempt to overturn DC's entirely sensible and completely Constitutional gun regulations being a perfect example.

Posted by: SecularAnimist on February 26, 2009 at 1:32 PM | PERMALINK

CH, on the assumption that you live in one of the fifty states, your state's capital is controlled by its citizens, not by the legislature of the whole state. Except, of course, for properties owned by the state government; but the same exception would apply if DC residents controlled their own city. Sure, in 1789 it made sense for thirteen squabbling colonies embarking on Union to place their capital on neutral and uninhabited ground, but the neutrality imperative doesn't have the same resonance it once did given modern realities (certainly not since the Civil War settled questions of secession and rivalries between the states and each other and between the states and the federal government), and DC is now more inhabited than Wyoming. Other than tradition, I can't think of a good reason that these people should be denied representation - and that includes the Senate, at least to the extent that Wyoming deserves representation in the Senate.

Can you think of another democracy that denies representation an entire region of its own soil? If you extend it to overseas dominions there might be some examples (our own Puerto Rico, albeit by their own referendum, and perhaps the UK's Gibraltar?), but even those are seen as a relic and as being nothing to emulate. Can you make a case for DC disenfranchisement from first principles?

Posted by: Warren Terra on February 26, 2009 at 1:35 PM | PERMALINK

Warren Terra wrote: "Can you make a case for DC disenfranchisement from first principles?"

From Republican first principles, sure: the voters of DC are mostly blacks, liberals and Democrats. Therefore, they should be disenfranchised. This is, after all, the basic strategy that Republicans have followed across the country in recent national elections.

Posted by: SecularAnimist on February 26, 2009 at 1:42 PM | PERMALINK

DC is not a state. Therefore it should not have any representatives in the House (or Senate). This bill is completely unconstitutional. I really don't see why this is so complicated.

And yes it is an anomaly, but it's an anomaly that's written into the Constitution. In fact I don't think a DC statehood bill would be constitutional either since it clearly says the Federal District is not a state.

Posted by: ArkPanda on February 26, 2009 at 1:46 PM | PERMALINK

I'm not sure I like the idea of DC getting a representative without first either becoming a state or joining an existing state. I'm not saying I disapprove, just that this should be thought through. The Constitution is pretty specific about the allocation of senators and representatives. In regards to Representatives, the 14th Amendement says "Representatives shall be apportioned among the several States according to their respective numbers..."

That seems pretty clear. Representatives are apportioned among the States. DC is not a state. I know that for some legal rulings it has been treated like a state, but that isn't the same as being a state.

In my opinion there are two main options: 1) DC gets annexed by a nearby state...Maryland or Virginia seem the most likely candidates. DC would simply become a congressional district under that model and would be elegible for representation. 2) DC becomes its own state and gets Senators and Representatives using the same criteria as any other state.

Both of these solutions have problems. For a state to annex DC, it would probably require an Amendment to the Constitution removing its status as a special district. Making it a state on its own seems perhaps like overkill since this would mean that this one city would get a Representative AND two Senators. This seems like grossly disproportionate amount of power and would likely over time lead to all manner of influence peddlers moving into the city limits.

Posted by: independent thinker on February 26, 2009 at 1:53 PM | PERMALINK

It's a simple choice. either allow people in DC a vote in Congress or take away their federal taxes. Our country was founded on the principle of no taxation without representation and it is an embarrassment and travesty that that phrase does not apply to residents of our capitol city.

Give credit to the moderate republicans in the senate that supported the measure, snowe, spector, collins, murkowski and voinavich and heap damnation upon the democrats that didnt (im looking at you baucus)

Posted by: Beauregard on February 26, 2009 at 1:55 PM | PERMALINK

Statehood is actually the least difficult option constitutionally. First of all, it's not even clear that the Constitution requires a federal district - Article I simply says that Congress "may" create a federal district not exceeding 10 square miles. However, if one feels that a Federal District is required, simply redefine the Federal District to be the Mall. Admit the rest of DC as a state.

As for the 23rd Amendment, either declare it is inoperative, since there is no body certifying electors, or repeal it once statehood passes (which would be a no-brainer).

Posted by: Andrew on February 26, 2009 at 2:17 PM | PERMALINK

I support this bill entirely. ok, a bit tongue in cheek, but still. my idea was when the decision came down last year to make DC into a gun haven. have the loosest gun restrictions available under Federal Law (and then only those Federal Laws that specifically mention the District) concealed carry, open carry, long guns, short guns, everything. when Senator Ensign is driving home (bring driven, I assume) from a long days' work, I want him to see me standing on the corner of Pennsylvania Avenue with an AK-47 slung over my shoulder. they want a gun paradise? we'll give it to them. let's turn the place into freaking Mogadishu. Then, I bet we get voting rights.

oh, and as much as I love the idea of eliminating taxation, that's just an absurd idea. Do we really want our capital to become the Monaco of the Mid-Atlantic?

Posted by: northzax on February 26, 2009 at 2:17 PM | PERMALINK

independent thinker wrote: "In my opinion there are two main options: 1) DC gets annexed by a nearby state...Maryland or Virginia seem the most likely candidates."

This is called "retrocession". As Wikipedia has it:

... retrocession is the process of returning the land that was given to the federal government for the purpose of creating the national capital. The federal district was formed in 1791 from 100 square miles of land ceded by the states of Maryland and Virginia in accordance with the Residence Act. An area of 31 square miles that was originally ceded by Virginia was returned to that state in 1847. The District's current area consists only of the remaining 69 square miles of territory originally ceded by Maryland.

So, the portion of the original District of Columbia west of the Potomac River, that was originally ceded by Virginia, was long ago (1846) returned to Virginia. Today it is the county of Alexandria, Virginia.

The remaining territory was ceded by Maryland, and would return to Maryland under the retrocession proposal that I mentioned earlier, which I understand you support.

Posted by: SecularAnimist on February 26, 2009 at 2:22 PM | PERMALINK

independent thinker wrote: "For a state to annex DC, it would probably require an Amendment to the Constitution removing its status as a special district."

Opinions on that point vary, and it would also depend on just how retrocession was implemented. Again, from Wikipedia:

The Supreme Court of the United States has never issued a firm opinion on whether the [1846] retrocession of the Virginia portion of the District of Columbia was constitutional. In the 1875 case of Phillips v. Payne the Supreme Court held that Virginia had de facto jurisdiction over the area returned by Congress in 1847, and dismissed the tax case brought by the plaintiff. The court, however, did not rule on the core constitutional matter of the retrocession.


In order to grant the residents of the District of Columbia voting representation and control over their local affairs, Congress has been proposed returning the remainder of the city back to Maryland. If both the Congress and the Maryland state legislature agreed, jurisdiction over the District of Columbia could be returned to Maryland, possibly excluding a small tract of land immediately surrounding the United States Capitol, the White House and the Supreme Court building ...

... retrocession may require a constitutional amendment as the District's role as the seat of government is mandated by the District Clause and the Twenty-third Amendment of the U.S. Constitution. The Twenty-third Amendment, ratified in 1961, grants District residents the right to vote for President. Conservative scholars argue that the Twenty-third Amendment refers specifically to "the District", a unique constitutional entity that is meant to have a resident population. Those scholars therefore conclude that the District cannot simply be returned to Maryland without an amendment ratified by the states. Retrocession could also alter the idea of a separate national capital as envisioned by the Founding Fathers.

A related proposal to retrocession is the "District of Columbia Voting Rights Restoration Act of 2004" (H.R. 3709), which would have treated the residents of the District as residents of Maryland for the purposes of Congressional representation. Maryland's congressional delegation would then be apportioned accordingly to include the population of the District. Those in favor of such a plan argue that the Congress already has the necessary authority to pass such legislation without the constitutional concerns of other proposed remedies. From the foundation of the District in 1790 until the passage of the Organic Act of 1801, citizens living in D.C. continued to vote for members of Congress in Maryland or Virginia; legal scholars therefore propose that the Congress has the power to restore those voting rights while maintaining the integrity of the federal district. The proposed legislation, however, never made it out of committee.

Posted by: SecularAnimist on February 26, 2009 at 2:28 PM | PERMALINK

I'm all in favor of the residents of DC getting to vote for Congress. The best solution would be to return DC to Maryland as SA suggests. That way they would also get to vote for the Senate.

Another possible solution would be a Constitutional amendment giving the residents of DC the right to elect a congressman. I would be happy to support such an amendment.

What can't be done is what is currently being proposed: for Congress by statute to give a voting Congressman to DC. That is plainly unconstitutional. I can't even think of a good faith argument in favor of its constitutionality, although I've learned through bitter experience that courts will distort the English language beyond recognition to achieve results that they believe to be desirable.

President Obama is smart enough to know that this bill is unconstitutional. However, he (and its other supporters) may be relying on the fact that it might be beyond judicial review because there might not be anyone with standing to sue over it. "Standing" is a doctrine that limits the right to sue to people who have been personally injured in some sense beyond the general sense of grievance that everyone feels from an illegal law. In this case, the only people I can think of who might have standing would be other congressmen who could claim their votes had been illegally diluted. But I don't know if the courts would accept that argument.

Posted by: DBL on February 26, 2009 at 2:36 PM | PERMALINK

For those of you who say this is unconstitutional I am not sure I can disagree with you - I am just not sure how to reconcile the fact that we residents of D.C. pay federal taxes but have no say in the levying and spending of said taxes.

I would love to be a state as it would solve this little issue, but in truth there is no constituency for allowing DC to become a state anywhere in the US except the District of Columbia (and there would likely be considerable number of conservatives who would resist because D.C. would likely not vote GOP) so trying to amend the Constitution, if that is what it would take, is to me, a bit of a non starter.

However, I live in DC and pay federal taxes. Where is my representation? And if any of you say but all of Congress is my representation - slap yourself in the head. I DIDN'T ELECT ANY OF THEM. Now, if you give me the right to vote for all 100 Senators and for all 435 members of the House then I would agree with that sentiment.

As for Maryland taking the District back - not likely to happen so that is a non-starter as well.

Posted by: ET on February 26, 2009 at 3:52 PM | PERMALINK
Making it a state on its own seems perhaps like overkill since this would mean that this one city would get a Representative AND two Senators.

Population of Washington, D.C. ~590,000
Population of Wyoming ~530,000

If D.C. (either in whole or just the parts not used for federal government purposes) becoming a state and therefore having a Representative and two Senators is a problem, why isn't Wyoming (or Vermont @ ~620,000) being a state a problem?

Posted by: cmdicely on February 26, 2009 at 4:42 PM | PERMALINK

Hee hee bye bye republicans. I feel the most uplifted when Obama is transmitting that progressive values are American values. I'd follow him anywhere when he is able to display and convince such empathy from people. There's a great book on progressive values and an agenda for the Obama admin: Thinking Big.

Posted by: Endyne on February 26, 2009 at 6:07 PM | PERMALINK

If the Constitution prohibits the District of Columbia from being represented in Congress, then any attempt to provide them with representation, as the Federal District, is unconstitutional and no legislation can make it so.
Barring that prohibition, however, any method of allowing District representation in the House (and Senate, for that matter) should require only a simple majority vote of both Houses of Congress.

Posted by: Doug on February 26, 2009 at 8:10 PM | PERMALINK

Tactical error.

Ensign need not invoke any prize for enforcing the 2nd amendment on DC any more than Dems should need to reward Mississippi for integrating their schools.

You obey the constitution. No milk and cookies necessary.

That said, I expect the crime rate to stay much the same once everyone is allowed to arm themselves. Just because something is Constitutional doesn't necessarily make it a good idea.

Posted by: toowearyforoutrage on February 26, 2009 at 9:31 PM | PERMALINK

Chicounsel wrote: Then again, the Constitution doesn't really matter to liberals when it stands in their way.

Chicounsel, please describe a "signing statement" as employed, repeatedly, by President Bush. Thanks in advance.


Posted by: Gregory on February 27, 2009 at 9:47 AM | PERMALINK



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