District of Columbia; Federal Property
Clause 17. 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, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.
The Convention was moved to provide for the creation of a site in which to locate the Capital of the Nation, completely removed from the control of any state, because of the humiliation suffered by the Continental Congress on June 21, 1783. Some eighty soldiers, unpaid and weary, marched on the Congress sitting in Philadelphia, physically threatened and verbally abused the members, and caused the Congress to ﬂee the City when neither municipal nor state authorities would take action to protect the members.1793 Thus, Madison noted that “[t]he indispensable necessity of complete authority at the seat of government, carries its own evidence with it. . . . Without it, not only the public authority might be insulted and its proceedings interrupted with impunity, but a dependence of the members of the general government on the State comprehending the seat of government, for protection in the exercise of their duty, might bring on the national council an imputation of awe or inﬂuence, equally dishonorable to the government and dissatisfactory to the other members of the confederacy.”1794
The actual site was selected by compromise, Northerners accepting the Southern-favored site on the Potomac in return for Southern support for a Northern aspiration, assumption of Revolutionary War debts by the National Government.1795 Maryland and Virginia both authorized the cession of territory1796 and Congress accepted.1797 Congress divided the District into two counties, Washington and Alexandria, and provided that the local laws of the two states should continue in effect.1798 It also established a circuit court and provided for the appointment of judicial and law enforcement officials.1799
There seems to have been no consideration, at least none recorded, given at the Convention or in the ratifying conventions to the question of the governance of the citizens of the District.1800 Madison in The Federalist did assume that the inhabitants “will have had their voice in the election of the government which is to exercise authority over them, as a municipal legislature for all local purposes, derived from their own suffrages, will of course be allowed them. . . .”1801 Although there was some dispute about the constitutional propriety of permitting local residents a measure of “home rule,” to use the recent term,1802 almost from the first there were local elections provided for. In 1802, the District was divided into five divisions, in some of which the governing officials were elected; an elected mayor was provided in 1820. District residents elected some of those who governed them until this form of government was swept away in the aftermath of financial scandals in 18741803 and replaced with a presidentially appointed Commission in 1878.1804 The Commission lasted until 1967 when it was replaced by an appointed Mayor-Commissioner and an appointed city council.1805 In recent years, Congress provided for a limited form of self-government in the District, with the major offices filled by election.1806 District residents vote for President and Vice President1807 and elect a nonvoting delegate to Congress.1808 An effort by constitutional amendment to confer voting representation in the House and Senate failed of ratification.1809
Constitutionally, it appears that Congress is neither required to provide for a locally elected government1810 nor precluded from delegating its powers over the District to an elective local government.1811 The Court has indicated that the “exclusive” jurisdiction granted was meant to exclude any question of state power over the area and was not intended to require Congress to exercise all powers itself.1812
Chief Justice Marshall for the Court held in Hepburn v. Ellzey1813 that the District of Columbia was not a state within the meaning of the diversity jurisdiction clause of Article III. This view, adhered to for nearly a century and a half,1814 was overturned in 1949, the Court upholding the constitutionality of a 1940 statute authorizing federal courts to take jurisdiction of nonfederal controversies between residents of the District of Columbia and the citizens of a state.1815 The decision was by a five to four division, but the five in the majority disagreed among themselves on the reasons. Three thought the statute to be an appropriate exercise of the power of Congress to legislate for the District of Columbia pursuant to this clause without regard to Article III.1816 Two others thought that Hepburn v. Ellzey had been erroneously decided and would have overruled it.1817 But six Justices rejected the former rationale and seven Justices rejected the latter one; since five Justices agreed, however, that the statute was constitutional, it was sustained.
It is not disputed that the District is a part of the United States and that its residents are entitled to all the guarantees of the United States Constitution including the privilege of trial by jury1818 and of presentment by a grand jury.1819 Legislation restrictive of liberty and property in the District must find justification in facts adequate to support like legislation by a state in the exercise of its police power.1820
Congress possesses over the District of Columbia the blended powers of a local and national legislature.1821 This fact means that in some respects ordinary constitutional restrictions do not operate; thus, for example, in creating local courts of local jurisdiction in the District, Congress acts pursuant to its legislative powers under clause 17 and need not create courts that comply with Article III court requirements.1822 And when legislating for the District Congress remains the legislature of the Union, so that it may give its enactments nationwide operation to the extent necessary to make them locally effective.1823AUTHORITY OVER PLACES PURCHASED “Places”
This clause has been broadly construed to cover all structures necessary for carrying on the business of the National Government.1824 It includes post offices,1825 a hospital and a hotel located in a national park,1826 and locks and dams for the improvement of navigation.1827 But it does not cover lands acquired for forests, parks, ranges, wild life sanctuaries or ﬂood control.1828 Nevertheless, the Supreme Court has held that a state may convey, and the Congress may accept, either exclusive or qualified jurisdiction over property acquired within the geographical limits of a state, for purposes other than those enumerated in clause 17.1829
After exclusive jurisdiction over lands within a state has been ceded to the United States, Congress alone has the power to punish crimes committed within the ceded territory.1830 Private property located thereon is not subject to taxation by the state,1831 nor can state statutes enacted subsequent to the transfer have any operation therein.1832 But the local laws in force at the date of cession that are protective of private rights continue in force until abrogated by Congress.1833 Moreover, as long as there is no interference with the exclusive jurisdiction of the United States, an area subject to such jurisdiction may be annexed by a municipality.1834Duration of Federal Jurisdiction
A state may qualify its cession of territory by a condition that jurisdiction shall be retained by the United States only so long as the place is used for specified purposes.1835 Such a provision operates prospectively and does not except from the grant that portion of a described tract which is then used as a railroad right of way.1836 In 1892, the Court upheld the jurisdiction of the United States to try a person charged with murder on a military reservation, over the objection that the state had ceded jurisdiction only over such portions of the area as were used for military purposes and that the particular place on which the murder was committed was used solely for farming. The Court held that the character and purpose of the occupation having been officially established by the political department of the government, it was not open to the Court to inquire into the actual uses to which any portion of the area was temporarily put.1837 A few years later, however, it ruled that the lease to a city, for use as a market, of a portion of an area which had been ceded to the United States for a particular purpose, suspended the exclusive jurisdiction of the United States.1838
The question arose whether the United States retains jurisdiction over a place that was ceded to it unconditionally, after it has abandoned the use of the property for governmental purposes and entered into a contract for sale to private persons. Minnesota asserted the right to tax the equitable interest of the purchaser in such land, and the Supreme Court upheld its right to do so. The majority assumed that “the Government’s unrestricted transfer of property to nonfederal hands is a relinquishment of the exclusive legislative power.”1839 In separate concurring opinions, Chief Justice Stone and Justice Frankfurter reserved judgment on the question of territorial jurisdiction.1840Reservation of Jurisdiction by States
For more than a century the Supreme Court kept alive, by repeated dicta,1841 the doubt expressed by Justice Story “whether Congress are by the terms of the Constitution, at liberty to purchase lands for forts, dockyards, etc. , with the consent of a State legislature, where such consent is so qualified that it will not justify the ‘exclusive legislation’ of Congress there. It may well be doubted if such consent be not utterly void.”1842 But when the issue was squarely presented in 1937, the Court ruled that, when the United States purchases property within a state with the consent of the latter, it is valid for the state to convey, and for the United States to accept, “concurrent jurisdiction” over such land, the state reserving to itself the right to execute process “and such other jurisdiction and authority over the same as is not inconsistent with the jurisdiction ceded to the United States.”1843 The holding logically renders the second half of clause 17 superﬂuous. In a companion case, the Court ruled further that even if a general state statute purports to cede exclusive jurisdiction, such jurisdiction does not pass unless the United States accepts it.1844
1793 J. Fiske, The Critical Period Of American History, 1783–1789 112–113 (1888); W. Tindall, The Origin And Government Of The District Of Columbia 31–36 (1903).
1794 The Federalist, No. 43 (J. Cooke ed. 1961), 288–289. See also 3 J. Story, Commentaries On The Constitution Of The United States 1213, 1214 (1833).
1795 W. Tindall, The Origin And Government Of The District Of Columbia 5–30 (1903).
1796 Maryland Laws 1798, ch. 2, p. 46; 13 Laws of Virginia 43 (Hening 1789).
1797 Act of July 16, 1790, 1 Stat. 130. In 1846, Congress authorized a referendum in Alexandria County on the question of retroceding that portion to Virginia. The voters approved and the area again became part of Virginia. Laws of Virginia 1845–46, ch. 64, p. 50; Act of July 9, 1846, 9 Stat. 35; Proclamation of September 7, 1846; 9 Stat. 1000. Constitutional questions were raised about the retrocession but suit did not reach the Supreme Court until some 40 years later and the Court held that the passage of time precluded the raising of the question. Phillips v. Payne, 92 U.S. 130 (1875).
1798 Act of February 27, 1801, 2 Stat. 103. The declaration of the continuing effect of state law meant that law in the District was frozen as of the date of cession, unless Congress should change it, which it seldom did. For some of the problems, see Tayloe v. Thompson, 30 U.S. (5 Pet.) 358 (1831); Ex parte Watkins, 32 U.S. (7 Pet.) 568 (1833); Stelle v. Carroll, 37 U.S. (12 Pet.) 201 (1838); Van Ness v. United States Bank, 38 U.S. (13 Pet.) 17 (1839); United States v. Eliason, 41 U.S. (16 Pet.) 291 (1842).
1799 Act of March 3, 1801, 2 Stat. 115.
1800 The objections raised in the ratifying conventions and elsewhere seemed to have consisted of prediction of the perils to the Nation of setting up the National Government in such a place. 3 J. Story, Commentaries On The Constitution Of The United States 1215, 1216 (1833).
1801 The Federalist, No. 43 (J. Cooke ed. 1961), 289.
1802 Such a contention was cited and rebutted in 3 J. Story, Commentaries On The Constitution Of The United States 1218 (1833).
1803 Act of May 3, 1802, 2 Stat. 195; Act of May 15, 1820, 3 Stat. 583; Act of February 21, 1871, 16 Stat. 419; Act of June 20, 1874, 18 Stat. 116. The engrossing story of the postwar changes in the government is related in W. Whyte, The Uncivil War: Washington During The Reconstruction (1958).
1804 Act of June 11, 1878, 20 Stat. 103.
1805 Reorganization Plan No. 3 of 1967, 32 Fed. Reg. 11699, reprinted as appendix to District of Columbia Code, Title I.
1806 District of Columbia Self-Government and Governmental Reorganization Act, Pub. L. 93–198, 87 Stat. 774.
1807 Twenty-third Amendment.
1808 Pub. L. 91–405, 84 Stat. 848, D.C. Code, § 1–291.
1809 H.J. Res. 554, 95th Congress, passed the House on March 2, 1978, and the Senate on August 22, 1978, but only 16 states had ratified before the expiration of the proposal after seven years.
1810 Loughborough v. Blake, 18 U.S. (5 Wheat.) 317 (1820); Heald v. District of Columbia, 259 U.S. 114 (1922).
1811 District of Columbia v. John R. Thompson Co., 346 U.S. 100 (1953). The case upheld the validity of ordinances enacted by the District governing bodies in 1872 and 1873 prohibiting racial discrimination in places of public accommodations.
1812 346 U.S. at 109–10. See also Thompson v. Lessee of Carroll, 63 U.S. (22 How.) 422 (1860); Stoutenburgh v. Hennick, 129 U.S. 141 (1889).
1813 6 U.S. (2 Cr.) 445 (1805); see also Sere v. Pitot, 10 U.S. (6 Cr.) 332 (1810); New Orleans v. Winter, 14 U.S. (1 Wheat.) 91 (1816). The District was held to be a state within the terms of a treaty. Geofroy v. Riggs, 133 U.S. 258 (1890).
1814 Barney v. City of Baltimore, 73 U.S. (6 Wall.) 280 (1868); Hooe v. Jamieson, 166 U.S. 395 (1897); Hooe v. Werner, 166 U.S. 399 (1897).
1815 National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582 (1949).
1816 337 U.S. at 588–600 (Justices Jackson, Black and Burton).
1817 337 U.S. at 604 (Justices Rutledge and Murphy). The dissents were by Chief Justice Vinson, id. at 626, joined by Justice Douglas, and by Justice Frankfurter, id. at 646, joined by Justice Reed.
1818 Callan v. Wilson, 127 U.S. 540 (1888); Capital Traction Co. v. Hof, 174 U.S. 1 (1899).
1819 United States v. Moreland, 258 U.S. 433 (1922).
1820 Wright v. Davidson, 181 U.S. 371, 384 (1901); cf. Adkins v. Children’s Hospital, 261 U.S. 525 (1923), overruled in West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937).
1821 Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524, 619 (1838); Shoemaker v. United States, 147 U.S. 282, 300 (1893); Atlantic Cleaners & Dyers v. United States, 286 U.S. 427, 435 (1932); O’Donoghue v. United States, 289 U.S. 516, 518 (1933).
1822 In the District of Columbia Court Reform and Criminal Procedure Act of 1970, Pub. L. 91–358, 111, 84 Stat. 475, D.C. Code, § 11–101, Congress specifically declared it was acting pursuant to Article I in creating the Superior Court and the District of Columbia Court of Appeals and pursuant to Article III in continuing the United States District Court and the United States Court of Appeals for the District of Columbia. The Article I courts were sustained in Palmore v. United States, 411 U.S. 389 (1973). See also Swain v. Pressley, 430 U.S. 372 (1977). The latter, federal courts, while Article III courts, traditionally have had some non-Article III functions imposed on them, under the “hybrid” theory announced in O’Donoghue v. United States, 289 U.S. 516 (1933). E.g., Hobson v. Hansen, 265 F. Supp. 902 (D.D.C. 1967), appeal dismissed, 393 U.S. 801 (1968) (power then vested in District Court to appoint school board members). See also Keller v. Potomac Elec. Co., 261 U.S. 428 (1923); Embry v. Palmer, 107 U.S. 3 (1883).
1823 Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 428 (1821).
1824 James v. Dravo Contracting Co., 302 U.S. 134, 143 (1937).
1825 Battle v. United States, 209 U.S. 36 (1908).
1826 Arlington Hotel v. Fant, 278 U.S. 439 (1929).
1827 James v. Dravo Contracting Co., 302 U.S. 134, 143 (1937).
1828 Collins v. Yosemite Park Co., 304 U.S. 518, 530 (1938).
1829 304 U.S. at 528.
1830 Battle v. United States, 209 U.S. 36 (1908); Johnson v. Yellow Cab Co., 321 U.S. 383 (1944); Bowen v. Johnston, 306 U.S. 19 (1939).
1831 Surplus Trading Co. v. Cook, 281 U.S. 647 (1930).
1832 Western Union Tel. Co. v. Chiles, 214 U.S. 274 (1909); Arlington Hotel v. Fant, 278 U.S. 439 (1929); Pacific Coast Dairy v. Department of Agriculture, 318 U.S. 285 (1943). The Assimilative Crimes Act of 1948, 18 U.S.C. § 13, making applicable to a federal enclave a subsequently enacted criminal law of the state in which the enclave is situated entails no invalid delegation of legislative power to the state. United States v. Sharpnack, 355 U.S. 286, 294, 296–97 (1958).
1833 Chicago, R.I. & P. Ry. v. McGlinn, 114 U.S. 542, 545 (1885); Stewart & Co. v. Sadrakula, 309 U.S. 94 (1940).
1834 Howard v. Commissioners, 344 U.S. 624 (1953). As Howard recognized, such areas of federal property do not cease to be part of the state in which they are located and the residents of the areas are for most purposes residents of the state. Thus, a state may not constitutionally exclude such residents from the privileges of suffrage if they are otherwise qualified. Evans v. Cornman, 398 U.S. 419 (1970).
1835 Palmer v. Barrett, 162 U.S. 399 (1896).
1836 United States v. Unzeuta, 281 U.S. 138 (1930).
1837 Benson v. United States, 146 U.S. 325, 331 (1892).
1838 Palmer v. Barrett, 162 U.S. 399 (1896).
1839 S.R.A., Inc. v. Minnesota, 327 U.S. 558, 564 (1946).
1840 327 U.S. at 570, 571.
1841 Fort Leavenworth R.R. v. Lowe, 114 U.S. 525, 532 (1885); United States v. Unzeuta, 281 U.S. 138, 142 (1930); Surplus Trading Co. v. Cook, 281 U.S. 647, 652 (1930).
1842 United States v. Cornell, 25 Fed. Cas. 646, 649 (No. 14,867) (C.C.D.R.I. 1819).
1843 James v. Dravo Contracting Co., 302 U.S. 134, 145 (1937).
1844 Mason Co. v. Tax Comm’n, 302 U.S. 186 (1937). See also Atkinson v. Tax Comm’n, 303 U.S. 20 (1938).