Some defenders of the proposed legislation to grant the District of Columbia voting representation in Congress argue that whether the statute is constitutional is a question that should be left to the courts. I find this problematic on multiple grounds. First, all three branches have an obligation to ensure that their actions are constitutional -- all take an oath to uphold the constitution. Second, not all federal government actions are amenable to judicial resolution (see, e.g., the post below). Some questions about the constitutionality of executive or legislative action can only be resolved by the political branches. Thus, if the executive does not make an independent effort to ensure that it is acting in accord with the constitution, there will be instances in which there is no assurance that the Executive is, in fact, acting constitutionally, because there is no judicial oversight.

While it may be appropriate for the executive branch to show some degree of deference to the independent determination of the legislature about a bill's constitutionality -- as some Founders did -- the Executive still has an independent obligation to assess the constitutionality of proposed legislation, particularly where (as here) the Executive may be the last word on proposed legislation's constitutionality. This does not mean that the President is obligated to follow OLC's lead, but it does mean the President does have an obligation to consider the constitutionality of legislation before he signs it (and, in my view, the President has an obligation to veto legislation he believes to be unconstitutional -- an obligation quite a few Presidents have violated).

In the present case, it is unclear whether anyone would have standing to challenge the constitutionality of the proposed legislation. In Raines v. Byrd, the Supreme Court held that members of Congress did not have standing to challenge the constitutionality of legislation creating the line-item veto, even though the legislation had the effect of lessening their political influence. I think Raines is potentially distinguishible, as there is a more direct "vote dilution" claim here, but it's anything but an open and shut case.

Calvin Massey is more optimistic that either House members, or perhaps a state, would have standing to challenge the bill. He writes:

There are several possible entities with standing. After Massachusetts v. EPA states have standing, as parens patriae, to secure the benefits of federal union to their citizens. One of those benefits is a Congress composed of representatives of the states, and only the states. A Congress that includes representatives from the federal district is not such a Congress. Any state has standing to challenge the validity of the act. It is also possible that members of the House have standing to challenge the validity of the act. In Raines v. Byrd members of Congress lacked standing to challenge the Line Item Veto act on the ground that their votes were rendered ineffective, because their votes "were given full effect. They simply lost that vote." But in this case, a House member's vote is not given full effect, because it is diluted by the vote of an imposter -- a "member" who is not entitled to be a member.

These are reasonable arguments. (I particularly like the reliance on Mass v. EPA.) Still, I wonder whether the Court would insist that a party asserting standing identify a specific instance in which the diultion of their vote had an influence on specific legislation, much as the Supreme Court waited for a plaintiff to identify a specific vetoed item before hearing a challenge to the line-item veto act. Perhaps we'll see.