The opinion of the court was delivered by: ELLEN S. HUVELLE, District Judge
This lawsuit presents yet another chapter in the District of
Columbia's longstanding struggle to achieve self-government. The
District, its Mayor, its Council and Council members, and eighteen of its
residents challenge Congress' refusal to permit taxation of income earned
by nonresidents who work within its borders. Plaintiffs contend that the
ban constitutes unconstitutional discrimination against residents of the
District, who lack the right to vote in Congress. Arguing that commuters
in the District should be required to compensate the jurisdiction in
which they are employed for the costs they impose, plaintiffs charge that
the District's inability to tax nonresidents creates financial deficits
not counterbalanced by its federal subsidies, forcing it to impose
disproportionately high tax burdens upon its own residents.
Amici for plaintiffs argue that the District is the only
jurisdiction in the United States denied the benefit
of taxing income earned within its borders, and that even the
federal government profits from the income earned by foreigners within
the nation's borders.*fn1
Plaintiffs' grievances are serious, and their goal is a laudable one.
The unfairness of the District's situation is obvious and regrettable.
Since the establishment of the District, courts have, however, understood
that its unique constitutional position results in unfairness. As early
as 1805, then Chief Justice Marshall recognized the inequities compelled
by the Constitution as he concluded that the Supreme Court could not
grant the District the same benefits enjoyed by the states. See
Hepburn & Dundas v. Ellzey, 6 U.S. (2 Cranch) 445, 453 (1805).
Chief Justice Marshall's sentiments have been reiterated in subsequent
Supreme Court decisions, as well as in rulings from courts in this
jurisdiction, all of which have upheld the District's lack of
congressional representation. See, e.g., Loughborough v.
Blake, 18 U.S. (5 Wheat.) 317, 324-25 (1820) ("Although in theory
it might be more congenial to the spirit of our institutions to admit a
representative from the district, . . . certainly the constitution does
not consider their want of a representative in Congress as exempting it
from equal taxation."); United States v. Thompson,
452 F.2d 1333, 1341 (D.C. Cir. 1971) ("[F]or residents of the District, the
right to vote in congressional elections is . . . totally denied. This
regrettable situation is the product of historical and legal forces over
which this court has no control."); Adams v. Clinton,
90 F. Supp.2d 35, 37 (D.D.C.), aff'd, 531 U.S. 941 (2000) ("[T]he
dictates of the Constitution and the decisions of the Supreme Court bar
us" from granting District residents the "right to elect representatives
to the Congress of the United States.").
This Court is likewise mindful of the unfairness of the situation
plaintiffs seek to change. But longstanding judicial precedent compels
the Court to conclude that plaintiffs do not enjoy the right they seek to
obtain. As has been the case for over two hundred years, the residents of
this jurisdiction "must plead their cause in other venues," for this
Court has no authority to overturn Congress' ban on a commuter tax.
Adams, 90 F. Supp. at 72.
The District of Columbia is "an exceptional community . . .
established under the Constitution as the seat of the National
Government." United States v. Murphy, 314 U.S. 441, 452
(1941).*fn2 The Constitution grants to Congress plenary legislative
authority over the District: "The Congress shall have the power . . .
[t]o 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 the
Government of the United States. . . ." U.S. Const. art. I, § 8,
cl. 17 ("the District Clause").
Until recently, Congress exercised its exclusive control over the
District through direct legislation and the appointment of local
governors, with only minimal input from residents. See Marijuana
Policy Project v. United States, 304 F.3d 82, 83 (D.C. Cir. 2002).
In 1871, when Washington City, Georgetown, and Washington County were
combined to create the District of Columbia, the Organic Act provided for
a presidentially-appointed District governor and a legislature with
limited power. See Dist. of Columbia v. John R. Thompson Co.,
346 U.S. 100, 105 (1953); An Act for the Government of the District of
Columbia, ch. 62, 16 Stat. 419 (1871). This attempt to provide the
District with territorial home rule lasted only a few years, for
Congress revoked the self-government provisions of the Organic Act in
1878, and for almost a century the District was governed by a
three-person commission appointed by the President. See Adams,
90 F. Supp.2d at 47 n.19; An Act for the Government of the District of
Columbia, and for Other Purposes, ch. 337, 18 Stat. 116 (1874); An Act
Providing a Permanent Form of Government for the District of Columbia,
ch.180, 20 Stat. 102 (1878).
Between 1948 and 1966, the Senate passed six different bills granting
the District some form of home rule, but each time a similar bill died in
the House Committee for the District of Columbia. The commissioner system
was replaced in 1967 by a presidentially-appointed mayor and council form
of government, see Adams, 90 F. Supp.2d at 47 n.19; see
also Reorganization Plan of 1967, Pub.L. No. 90-623, 81 Stat. 948
(1967), and in 1973, Congress enacted the "Home Rule Act," providing for
a mayor and council elected by the citizens of the District. See
District of Columbia Self-Government and Governmental Reorganization Act,
Pub.L. No. 93-198, 87 Stat. 774 (1973) (codified as amended at D.C. Code
Ann. § 1-201.01 et seq.) ("the Act"). The existing local
government provides the District with the most expanded form of
self-government to date.
The Home Rule Act delegates to the District of Columbia Council
"certain legislative powers," "[s]ubject to the retention of Congress of
the ultimate legislative authority over the nation's capital." D.C. Code
Ann. § 1-201.02. The Act protects Congress' exclusive legislative
authority over the District by providing that Council enactments become
law only if Congress declines to pass a joint resolution of disapproval
within thirty days (or sixty days in the case of criminal laws) and by
reserving the power to repeal Council enactments at any time. See
id. §§ 1-206.01, 1-206.02(c)(1)-(c)(2).
The Act also specifically limits the Council's lawmaking powers,
enumerating matters that are not "rightful subjects of [Council]
legislation." Id. § 1-203.02. The District may not, for
example, impose any tax on federal property; it may not regulate federal
or local courts, or the Commission on Mental Health; and it may not
permit the construction of buildings taller than certain height
restrictions. See id. § 1-206.02(a)(1)-(a)(8). Plaintiffs'
challenge in this case addresses the Act's commuter tax prohibition (the
"Prohibition"), which is among these enumerated limitations: "The Council
shall have no authority to . . . [i]mpose any tax on the whole or any
portion of the personal income, either directly or at the source thereof,
of any individual not a resident of the District. . . ." Id.
Congress passed the Home Rule Act as a compromise, granting "the people
of the District of Columbia an opportunity in exercising their rights
once more and yet with adequate safeguards for the Federal interest
component." Home Rule for the District of Columbia, 1973-1974: Background
and Legislative History of H.R. 9056, H.R. 9682, and Related Bills
Culminating in the District of Columbia Self-Government and Governmental
Reorganization Act, at 2106 (1974) (statement of Rep. Diggs, reprinted
from the Cong. Rec., Oct. 9, 1973). The Chairman of the Committee on the
District of Columbia viewed the legislation as "a reasonable and rational
accommodation between the interests of all Americans in their Nation's
Capital and the basic principle that government should be responsible to
the people." Id. at 3052 (statement of Rep. Diggs, reprinted
from the Cong. Rec., Dec. 17, 1973).
The Act provided for an annual federal payment to be allotted to the
District upon the Mayor's request. To formulate the fund petition, the
Mayor was to "prepar[e] an annual budget for the government of the
district, . . . identify[ing] elements of cost and benefits to the
district which result from the unusual role of the district as the
Nation's Capital," considering, among
other things, the "potential revenues that would be realized if
exemptions from district taxes were eliminated," and the "relative tax
burden on District residents compared to that of residents in other
jurisdictions in the . . . metropolitan area and in other cities of
comparable size." D.C. Code Ann. §§ 1-205.01(a), (b)(3), (b)(9)
(repealed 1997). Thereafter, Congress authorized a maximum annual amount
for the appropriation. The federal payment was not to exceed $230 million
for the fiscal year ending June 30, 1975, $254 million for 1976, $280
million for 1977, and $300 million for 1978. Id. §§ 1-205.02
(repealed 1997). By the mid-1990s, the federal payment had increased to
$660 million per year.
By 1997, however, lawmakers concluded that the "financial constraints
uniquely applicable to the District" required greater federal budgetary
and management responsibility "for some very costly District operations
which are either state-like functions which virtually no other city in
the nation performs, or which are burdens which the federal government
itself created and unfairly transferred to the District government as
part of the home rule deal." Hearing before the Senate and House
District of Columbia Subcommittees on the President's National Capital
Revitalization and Self-Government Improvement Plan, 105th Cong.
(1997) (statement of Charlene Drew Jarvis, District of Columbia
Councilmember). Thus, through the National Capital Revitalization and
Self-Government Improvement Act of 1997, Pub.L. 105-33, 111 Stat. 712
(§§ 11000-11723) (1997) ("the Revitalization Act"), Congress repealed
the federal payment provision of the Home Rule Act, and began to
subsidize some of the District's "state functions," including its
transportation and infrastructure system development, pension
liabilities, Medicaid program payments, and courts and prison system
Through the Revitalization Act, Congress attempted to financially
compensate the District for costs associated with "the extraordinary
Federal presence," including "crowd control, restrictions on revenue
raising capacity because of tax exempt property, height restrictions, and
restrictions on non-residence income taxes." Hearing before the House
District of Columbia Subcommittee on the White House Plan to Revitalize
D.C., 105th Cong. (1997) (statement of Andrew Brimmer, Chairman,
District of Columbia Financial Responsibility and Assistance Authority)
(emphasis added). The "forgone nonresident income taxes" were "estimated
to be $1.2 billion annually," an amount only expected to increase "as
more District residents migrate to neighboring jurisdictions but
continue to work in the city." Id. Congress was, therefore,
directed to take into account the restrictions upon the overall size of
the District's economy and the limitations upon its ability to tax income
when determining "such amount as may be necessary" for the District's
appropriation. See Revitalization Act, Pub.L. 105-33, 111 Stat.
at 778 (§ 11601(c)(1), (c)(2)(B)). Thus, despite concerns surrounding
the discontinuation of the District's federal payment, the Revitalization
Act was touted as "`the most promising and certainly the most innovative
approach yet to emerge for relieving the District government of costs it
can no longer shoulder.'" David A. Vise, Clinton Proposes U.S. Run
Many D.C. Services, Washington Post, Jan. 14, 1997, at Al (quoting
Del. Eleanor Holmes Norton).
While income tax from commuters would undeniably increase the
District's revenues, Congress has chosen to address the District's
financial situation through other means, and has rejected every proposed
commuter tax since 1975. Bills introduced shortly after the passage of
the Home Rule Act sponsored by Representative McKinney (Amendment
to the District of Columbia Income and Franchise Tax Act of 1947, H.R.
11579, 94th Cong. (1976)) and Representative Dellums (Amendment to the
District of Columbia Self-Government and Governmental Reorganization Act,
H.R. 11303, 95th Cong. (1978)) died in committee. More recent proposals
introduced by District Delegates Walter Fauntroy (Amendment to the
District of Columbia Self-Government and Governmental Reorganization Act,
H.R. 2641, 99th Cong. (1985)) and Eleanor Holmes Norton (District of
Columbia Fair Federal Compensation Act of 2002, H.R. 3923, 107th Cong.
(2002)) have suffered similar fates. Former District Mayor Sharon Pratt
Kelly launched a highly-publicized campaign in 1992 promoting a commuter
tax, but gave up her efforts in response to political pressure.
See Kent Jenkins, Jr., Kelly Drops Commuter Tax Effort,
Washington Post, Dec. 6, 1992, at A1.
Plaintiffs now challenge Congress' refusal to permit passage of a
commuter tax. While plaintiffs cite to the Equal Protection, Uniformity,
and Privileges and Immunities Clauses as the grounds for invalidating the
Prohibition, these claims are premised on a series of Supreme Court tax
cases that plaintiffs use to craft a legal principle outlawing
discrimination in the imposition of taxes against unrepresented citizens
in favor of represented ones. Applying this principle to Congress' ban on
the District's use of a commuter tax, plaintiffs argue that the
Prohibition must be invalidated.
Defendants and the intervenors (the State of Maryland and the
Commonwealth of Virginia) have moved to dismiss plaintiffs' claims.*fn4
As an initial matter, they challenge the
Court's subject matter jurisdiction arguing that plaintiffs lack
standing to challenge the Prohibition and that the issue is
nonjusticiable because it presents a political question. As to the
merits, defendants and the intervenors seek dismissal on the grounds that
since Congress' prohibition on a commuter tax is constitutionally
permissible under its plenary power over the District, there is no legal
basis for invalidating Congress' action. Having heard oral argument on
the motions to dismiss on February 17, 2004, the Court will now turn to
defendants' jurisdictional arguments, as well as their arguments
regarding plaintiffs' constitutional claims.
Plaintiffs have standing if they have suffered an "injury in fact," are
able to establish a causal connection between the injury and the
offensive conduct, and demonstrate that the injury will be redressed by a
favorable decision. See Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-61 (1992).
The complaint alleges that approximately 500,000 residents commute into
the capital each workday, imposing significant uncompensated costs on the
District. As a result of the District's inability to tax these commuters,
the individual plaintiffs "bear substantially higher than normal tax
burdens," while the District "perennially suffers revenue deficiencies,"
as well as "an inability to fund critical infrastructure
improvements."*fn5 (Compl. ¶¶ 50-52.) These injuries
are not "conjectural or hypothetical," they are specifically
alleged, and they are suffered only by the District and its residents.
See Lujan, 504 U.S. at 560-61. Thus, contrary to defendants'
contention, plaintiffs' challenge is not a generalized taxpayer grievance
where the injury is undifferentiated and common to all members of the
public. See id. at 575-76. Instead, the legislative act at issue
allegedly unconstitutionally burdens a particular class of citizens, and
"[t]he burden alone is sufficient to establish standing." Orr v.
Orr, 440 U.S. 268, 273 (1979).*fn6
The complaint also contains sufficient allegations to establish a
causal connection between the injury and the District's inability to tax
commuters, claiming that the inability to tax commuters "is the
substantial cause of the District's structural deficit" that forces it to
overtax its residents and to reduce necessary public services. (Compl.
¶ 38.) But for the commuter tax ban, plaintiffs contend, the Council
could "tax non-resident income earned within its borders
[providing] hundreds of millions of dollars in needed revenue for
the District [which would] ease the burden on overtaxed District
residents [and] provide more and better services to residents and
nonresidents." (Id. ¶ 53.*fn7
Finally, defendants challenge the redressibility of plaintiffs' injury,
pointing to the fact that, in the event that the Court were to strike
down the Prohibition, relief would be obtained only if the Council were
to enact a commuter tax and Congress were to abstain from exercising its
veto power over such legislation, which, as defendants argue, would be
highly unlikely given its consistently hosfile response to such
legislation.*fn8 The complaint disposes of the first concern, by
including a Council declaration stating that if it could, "the Council
would enact a law to reduce income tax rates on its overtaxed residents
and impose a fair and reasonable income tax on non-residents." (Mot. at
31 (citing Compl. ¶¶ 44, 53-55).) And, although the Act entitles
Congress to veto or repeal laws enacted by the Council, if the Court were
to hold the Prohibition
unconstitutional, its holding would prohibit Congress from
exercising these powers on a commuter tax law passed by the Council.
See Adams, 90 F. Supp.2d at 42 (citing Franklin v.
Massachusetts, 505 U.S. 788, 803 (1992) (the Court may "assume that
the President and the congressional officials would then follow the law
as the Court articulated it")). Moreover, the possibility that a
coordinate branch might subsequently negate or undermine the Court's
relief does not necessarily destroy standing. See Swan v.
Clinton. 100 F.3d 973, 980-81 (D.C. Cir. 1996). Plaintiffs therefore
have standing to bring their challenge.
The political question doctrine arises from two constitutional
principles: the separation of powers among the three coordinate branches
of government and the inherent limits on judicial capabilities.
United States ex rel. Joseph v. Cannon, 642 F.2d 1373, 1378-79
(D.C. Cir. 1981) (citing Baker v. Carr, 369 U.S. 186, 217
(1962)).*fn9 The doctrine prohibits a court from interfering in a
political matter that is principally within the dominion of another
branch of government. See Spence, 942 F. Supp. at 39.
The issue here is whether the Court can review plaintiffs'
constitutional challenge to the Prohibition by applying manageable
standards without usurping Congress' authority over the
District. See Baker, 369 U.S. at 217. Defendants argue
that because Congress' power over the District is "plenary in every
respect," its decision to enjoin the imposition of a nonresident income
tax is one for "legislative, not judicial, consideration." (Mot. at
12-13.) Moreover, because they contend that plaintiffs do not have the
rights they claim, they argue that there are no appropriate standards to
review plaintiffs' challenge. (Id. at 16.)
That Congress' power is "plenary" is, as even defendants admit (see
id. at 14 n.5), insufficient to insulate a law from judicial review.
See, e.g., INS v. Chadha, 462 U.S. 919, 940-41 (1983) ("The
plenary authority of Congress over aliens . . . is not open to
question, but what is challenged here is whether Congress has chosen a
constitutionally permissible means of implementing that power.");
Delaware Tribal Bus. Comm. v. Weeks, 430 U.S. 73, 84 (1977)
(quoting United States v. Alcea Band of Tillamooks, 329 U.S. 40,
54 (1946) ("The power of Congress over Indian affairs may be of a plenary
nature; but it is not absolute.")). Congress can exercise its plenary
power over the District only "so long as it does not contravene any
provision of ...