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Let's Sue Congress

For Neglected D.C. Citizens, Court Is the Last Resort

I'M LOOKING for a lawyer to sue somebody for me. But hold the phone, counselor, there's not a lot of money involved here. Just a nice, big American constitutional principle. And, with any luck, a landmark Supreme Court decision.

I want to sue Newt Gingrich. Along with Trent Lott, Dick Gephardt, Tom Daschle, Jim Walsh, Slade Gorton and every other member of the U.S. Congress.

The plaintiff would be me. Along with every other resident of the District of Columbia. In other words, a class action lawsuit of "all persons similarly situated," as they say in federal court.

The principle is that the woes that I and my fellow D.C. citizens have been experiencing -- from bad water to falling-down schools to broken fire trucks and a rising crime rate -- all stem from Congress's mismanagement of the District and that the Constitution of the United States never intended this to be so.

In other words, our rights as American citizens are being violated and it is the obligation of each and every member of Congress to fix the situation. This does not mean a grudging concession or a paternalistic experiment -- but a legal necessity. Even if it costs money.

And it does not mean the half-measure of the financial control board, but a real fix that gives D.C. residents the rights of every other American citizen and pays us back the money that Congress owes us.

Sounds simple. And crazy. But I believe it is a) not so far-fetched and b) very much the heart of the matter when it comes to trying to understand and solve the District's troubles.

In recent years, federal judges have interjected themselves into all aspects of the District's affairs -- there are more than 30 federal cases now pending, from the prisons to public housing to the foster care system -- and they have not been hesitant to unload their wrath on hapless bureaucrats who've mismanaged things. The problem is they aren't aiming high enough. The real responsibility for the inmates, the homeless, the water pipes and anything else having to do with the District lies on Capitol Hill. The Constitution says so.

But the sleight-of-hand of 1973's Home Rule Act -- one of the most one-sided deals since Russia sold Alaska -- has allowed Congress to change the subject. It's going to take a lawsuit to change it back.

This is what the Constitution says: "The Congress shall have power: To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular states, and the Acceptance of Congress, become the Seat of Government of the United States . . . ."

All I want is for a federal judge to tell Congress: "That language does not mean you can treat the District as some sort of colony to be abused or ignored as you please. You have an obligation to preserve the rights of its citizens, and the current form of government does not do that."

Where would this get us? The specifics wouldn't necessarily be up to the court. A judge could simply say there's an inequity here and Congress has to fix it. There are many alternatives: receivership, a city manager, retrocession to Maryland, a commonwealth, a viable state, make the whole city a tax-free enterprise zone or some combination.

I know, I know. You're thinking that this is the same old argument for statehood. It's not. I'm talking about a lawsuit that questions the very essence of Congress's 200-year relationship with the District and that makes clear everyone's responsibility to create a sustainable government. It's only a first step to get the court to intercede and declare that the status quo can't continue. But right now, that seems like the most important step I can imagine.

This thought occurred to me recently as I sat at an off-the-record dinner and listened to a senator with significant responsibility for the District's fate. He confided that he was getting fed up with the District and that any solution to its problems that involved money would be "unacceptable to my voters back home." Such an attitude has long been the basis of the District-Congress relationship. We are the problem and they are the occasionally beneficent government throwing us a bone. We are grateful for anything we get from Congress, ignoring the fact that they're the ones who got us into this mess in the first place.

The mess, of course, includes the inability to vote for the people who actually control our lives and the well-known litany of horrendous services -- all of which jeopardize our life, liberty and pursuit of happiness. But there are also plain old economic costs borne by District taxpayers that are no different than if the Sheriff of Nottingham had taken the money out of our mattresses at spear-point. This expands the harm beyond the important but ethereal world of voting rights and into the realm of property and public safety.

For instance, in the kind of deal that gets takeover tycoons sent to prison, Congress, as part of the home rule law, handed the new government the entire liability for the pensions of District workers that Congress had failed to fund for decades. That obligation is now $4 billion and growing. Forcing D.C. taxpayers to pay it is what the courts would call a "taking," and it is a violation of our rights.

Similarly, might it be that District residents shoulder one of the highest tax burdens in the nation because Congress decrees 42 percent of the city off-limits from taxation while it prohibits a commuter tax, a residency requirement and provides a federal payment that its own General Accounting Office says is inadequate? Who's paying for these national obligations -- not the taxpayers in California or South Dakota, but only the residents of the District. The same goes for the soaring Medicaid payments that every other city shares with its state-wide tax base. For that matter, why are we paying any federal taxes at all, when the Constitution clearly says that taxes are to be apportioned "among the several states"? (Answer: In 1820, the Supreme Court was only too happy to declare the District a state for the purpose of taxation.)

These are but a few of the anomalies that make life in the District akin to that of subjects of "a conquered territory," as Founding Father John Randolph prophesied 200 years ago. As the city's problems mount, it becomes clear that we are serfs, vassals, sharecroppers or, in effect, involuntary contributors to the U.S. Congress. But we are also supposed to be American citizens and surely, you say, the great men who wrote the Constitution did not intend for this situation to be.

And you would be right, mostly. But, as Prof. Peter Raven-Hansen of George Washington University, observed, whatever the best intentions of the framers, the circumstance the District finds itself in "is a historical accident."

The men who drafted the Constitution were very concerned about the eventual seat of government and argued the issue for a year. In 1783, they argued about where it would be and what powers it would have. The Antifederalists worried that it would be too powerful, others thought the federal government needed to be surrounded by a loyal enclave, but everyone agreed that it would be a pretty swell, prosperous place to live.

What they wanted from a federal district was very limited: a reliable police force and an uncorrupted judiciary along with a few other amenities to facilitate the conduct of government. They never quite got around to detailing the rights of the "unborn citizens" of the "hypothetical city," as one justice later commented. But they all seemed sure that someone else -- Virginia and Maryland, perhaps, or a local city council, or even the congressmen who lived there -- would take care of those rights. "The inhabitants will find sufficient inducements of interest to become willing parties to the cession," wrote James Madison in Federalist No. 43, " . . . as a municipal legislature for local purposes, derived from their own suffrages, will of course be allowed them . . . every imaginable objection seems to be obviated."

"Federalists denied that the liberties of the residents of the federal city would be infringed," writes Kenneth Bowling in "The Creation of Washington, D.C.," his thorough history of the debates. "No state would injure its citizens; consequently, any acts of cession [giving land to the federal government] would protect the liberties, common law rights and other interests of people who thereby became District residents."

In the 1790s, after some masterful political muscling by George Washington, the District of Columbia was created up the river from his home in Mount Vernon on land given by Maryland and Virginia. In the intervening two centuries it has had all manner of governments, some honest, some corrupt, none of them particularly successful but most allowing Congress to pass the buck for a problem it didn't want. As early as 1831, as Raven-Hansen notes, President Andrew Jackson was complaining that Congress was not "well-qualified to legislate over the local concerns of this District."

The courts have made things worse. Taking their cue from a 1804 opinion by Chief Justice John Marshall, the courts have read the District clause narrowly to mean that Congress really can do anything it wants and anyone who moves to the District gives up their rights. Subsequent cases have dealt with what rights the courts might grudgingly concede to District residents -- a judiciary, the right to vote for president. None deal with the question of what responsibilities Congress, as the designated legislature, has toward its citizens. As recently as 1984, in U.S. v. Cohen, the U.S. Court of Appeals was still arguing, bizarrely, that D.C. was protected by the informal power of the many congressmen who lived here. Other recent suits seeking to address the voting rights issue have been summarily dismissed because the constitutional issue was deemed settled.

So given the sorry history, why should the courts change now? Perhaps because the festering issue of the District's untenable structure has never been more clear. For both practical and principled reasons it's right for the courts to try to effect a solution.

"The problems of the District are the symptoms, not the disease," says Abner Mikva, who has been both a federal appeals court judge here and a member of Congress serving on the House District committee. "The principle is an overpowering argument: How can you say that 500,000 people don't have the same rights as the people in the rest of the country? And the practical matter is that Congress can't run a city and doesn't want to."

Forget the intricacies of case law for a moment and use some common sense: Does the Constitution really mean to say that Congress can impose any burden it chooses on the residents of D.C.? That it can take our money, take our vote, fail to protect us, fail to educate our children adequately and that there is no recourse? I have always been led to believe that if there is an injustice, the courts are supposed to find a way to address it.

Then there is the practical matter. Assuming, generously, that everyone dealing with this mess has the best intentions, there are still inevitable political barriers that thwart a solution. We know Congress's problem: Even if members wanted to do more, their constituents will only let them tinker on the margins. We don't know the White House's problem, except the fact that President Clinton chooses to stay as far away from the matter as he can. The local government is guided by the imperative of self-interest.

Only the courts can break the political gridlock. A court can give everyone political cover, especially when it comes to spending money. Given a choice, most people wouldn't have wanted to pay for Congress screwing up the savings and loan industry, either, but it was the law. Courts tell the government to fix inequities on government property all the time, often at great cost -- whether it's cleaning up nuclear waste or seeing to the rights of Native Americans. Why should Congress's District of Columbia be any different?

Of course, thinking something is right and proving it in court are two different matters entirely. There are many procedural hurdles to suing Congress. But courts are not immune from political reality. There are various theories under which you could sue (Prof. Jamin Raskin proposes several of them on this page). I'll bet if the D.C. Bar Association put a few smart lawyers in a room for a week, they could figure this out. And it wouldn't be a parlor game. It may be the only option left.

Now, counselor, our operators are standing by.

Brian Kelly is the deputy editor of Outlook.

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