The Bifurcation Test

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Congress has a lot of power in DC, but it's not a blank check. This article argues that courts have made a basic mistake: they have treated Congress's power to protect the federal capital as if it also gives Congress unlimited power to run the daily life of the people who live there.

Those are two different things. One is making sure the national government can function safely and independently in the capital. The other is governing a city with hundreds of thousands of residents. Courts have too often blended them together. As a result, Congress can interfere in ordinary local DC matters with very little judicial pushback, even though DC residents do not have the normal political protections that people in states do.

It argues that the Constitution gives Congress authority over the "Seat of Government," meaning the federal capital as a functioning national institution, not over "a city" in the broadest sense. The article draws a parallel with the Constitution's Enclave Clause, which gives Congress similar authority over places like military bases and federal sites. Courts have recognized that this power is tied to function, not unlimited control over all land or all people in those places. The same logic must apply to DC. The article also notes that some Supreme Court dissents show growing skepticism toward broad claims of "plenary" power based only on geography in other contexts, like territories and tribes.

To fix the problem, the article proposes a "Bifurcation Test." Under that approach, courts would treat two kinds of congressional action differently. If Congress is dealing with true seat-of-government functions, like protecting federal property or making sure the national government can operate, courts would still give Congress broad leeway. But if Congress is trying to regulate ordinary local city matters, courts should not automatically defer. Instead, Congress should have to show a real federal interest connected to the capital's national role, and the law should actually relate to that interest.

In other words: Congress can protect the capital as the capital, but it should not get automatic deference when it is simply acting like a city council for people who cannot vote it out.