Legislation is necessary to give the District of Columbia a seat, and Utah another seat, in the House of Representatives so Americans are properly represented in Congress. I believe that the Constitution allows Congress to accomplish this important objective by legislation rather than constitutional amendment.
The debate about the constitutionality of this legislation is healthy. The Senate and House should do it more often on other bills. Reaching the right conclusion, however, requires considering all the relevant factors. When critics of this legislation, including the Deseret Morning News, point to a single phrase in the Constitution, they ignore most of the relevant considerations.
The Constitution does say that the House shall be composed of members selected by the "people of the several states." The Constitution also says in the very same article, however, that Congress has exclusive authority to legislate for the District "in all cases whatsoever." Courts have described this authority as "extraordinary and plenary power" as well as "full and unlimited jurisdiction." Whether the word "states" trumps this legislative authority over the District depends upon considerations the News did not mention.
For more than two centuries, courts have approved application to the District of constitutional, statutory and treaty provisions that are similarly phrased in terms of states. The original Constitution, for example, said that "direct taxes shall be apportioned among the several states." Article I gives Congress authority to regulate commerce "among the several states." Article III says that federal courts have jurisdiction over lawsuits between "citizens of different states." The Sixth Amendment requires a speedy criminal trial in the "state" where the crime was committed. An international treaty refers to "all states of the Union." Each of these now applies to the District.
Even more to the point, in 2000 the Supreme Court affirmed that while the Constitution itself does not provide for District representation in Congress, this goal may be sought "in other venues." That is exactly what is happening today.
Remember that the District did not even exist when the Constitution was drafted describing House composition in terms of "states." After 1790, however, when the land ceded for the District was no longer part of any state, Congress provided by legislation for the citizens living there to be represented in the House. It is inconceivable that, once the capital moved to the District in 1800, America's founders suddenly turned their backs and intended to strip those very same Americans of that representation.
Both conservative and liberal legal scholars have made arguments for and against the constitutionality of this legislation, and the Senate bill provides for expedited judicial review in the event of an appropriate legal challenge. It is the job of the courts to consider such cases. But it is the job of Congress to legislate on important policy issues once the constitutional ground is sufficiently firm. Considering all the relevant factors shows that this standard is more than met for this legislation.
This legislation would give Utah the fourth House seat we deserve and years of seniority before the next census and redistricting process would be complete. I remind those who insist that process will necessarily give Utah a fourth (the News says even a fifth) seat that we thought so after the last census. However, the extra seat is not guaranteed some other states are already claiming it. So this legislation would not jump the representation gun; it would correct an injustice.I agree with the News that this issue must be addressed "in the proper way on its merits." Doing so requires putting all the pieces together. The Constitution does not prevent accomplishing by legislation the goal of America's founders that Americans, including in Utah and the District, be properly represented in Congress.
Orrin G. Hatch is Utah's senior senator and a former chairman of the Senate Judiciary Committee.