Over the past few years, one of the most consistant complaints from Democrats and liberals of various flavors has been the alleged violations of the rule of law committed by Bush (whether or not those allegations are accurate is not the point of this post and will not be addressed here). Those same people have loudly trumpeted Obama's election as a return to the rule of law. Why then is one of the very first high-profile actions of this Democrat-controlled congress and rule-of-law-administration a blatant and unarguable violation of the rule of law?
The rule of law is a legal theory which states that everyone, from the top to the bottom, is bound by the same law and must act within the context of that law. The main point of this theory is a check on what used to be considered the sovereign right of kings, the right to pass decrees and laws based solely on the executive's discretion with no overriding authority. According to the rule of law, even the lawmakers are bound by a higher authority which they cannot change without meeting certain, predefined conditions.
The Senate just passed a bill granting congressional representation to Washington DC. The House is expected to pass their own version of this bill in the near future and, once the kinks have been knocked out of it, Obama has already promised to sign the joint bill into law. The only problem with this is that the Constitution, the supreme law of the land and the very one that establishes those rule of law limitations for our lawmakers, states categorically that congressional representation is for states and Washington DC is not a state. Thus, this bill that is expected to be signed into law is a violation of the rule of law that Obama was supposed to be returning to the forefront of American legislation.
This is not an argument over whether or not the citizens of Washington DC should have congressional representation. That is an argument that, oddly enough, no one is really interested in having. Proponents of this new law point out that America is the only country in the voting world that does not give citizens of its capital representation but they don't like to mention the fact that the reason for that is that America has the only national capital that does not reside inside a representative district. It is worth pointing out that, when Washington DC was established as the national capital, it was intentionally placed outside of a representative district by the very people who wrote the rules for those districts. It can be argued that those people never expected or intended the capital to become the permanent residence of so many people but it can also be argued that all of those people moved to DC knowing that it existed in the representative limbo in which it resides. Stated bluntly, an argument can be made for both sides of the debate.
Where there is no room for argument, however, is in the fact that congress does not have the authority to arbitrarily grant representation to Washington DC any more than congress has the authority to arbitrarily grant representation to Guam, Puerto Rico, or any other non-state American territory. There are procedures for this that the rule of law demands be followed.
The way I see it, there are three possibilities that would legally grant representation to the citizens of DC, not counting those citizens simply moving to a state that already has representation. One of those possibilities would require a Constitutional amendment, which we can safely say is not going to happen. The other two would not require amendments (I don't think - legal scholars might disagree with me on one of them) but would would likely result in extremely heated legal battles and one of these would just be plain silly.
The first possibility is a Constitutional amendment that decrees that congressional representation is not limited to statehood. This would, of course, immediately open up the various territories to full congressional representation and would kind of remove the distinction between states and non-state territories. Considering how many times Puerto Rico has voted against becomign a state, it seems to me that the territories themselves might not be so keen on this idea. Even if they were good to go with the idea, though, you can bet that such an amendment would not pass the ratification by the states requirement, which is exactly why Congress is not trying to do it this way.
The second possibility is simply placing DC back inside the statehood borders of Maryland, where it had existed before it became the national capital. This is the one that I say legal scholars might argue about. Removing DC from Maryland did not require an amendment so I see no reason why putting it back would do so, but I admit I might be overlooking something. This plan would, no doubt, require approval from the legislature of Maryland, but I don't really see any reason why they would object. They would instantly gain an additional tax base of just over half a million people. Whether or not the national capital should reside inside one of the states in a republic goes back to the original argument of why the framers took it out of the state in the first place but, as I said at the beginning, that is a different argument. I am not saying this is a good idea, only a legal one.
The third possibility would be for the citizens of Washington DC to vote that they would like to become a state and then for Congress to accept them as a state. They would have to form a state government, which would be rather silly at their size, and they would have the dubious distinction of being the smallest state in the world, but it would be legal.
The point here is that methods for granting Congressional representation to Washington DC exist and Congress arbitrarily granting that representation is not on the list. For people who have made the rule of law such a battle cry, this legislative session is not off to a good start. If they are willing to ignore the Constitution in such an obvious manner, we are definitely in big trouble.