David Seidman (Capital Rights Lab) has posted Governing The Seat, Not the City: The Constitutional Limits of Plenary Power in the District of Columbia, forthcoming in 95 Geo. Wash. L. Rev. Arguendo (2026), on SSRN. Here is the abstract:
Congress’s authority over the District of Columbia is often described as plenary, but it is not unlimited. This Article argues that prevailing District Clause doctrine impermissibly collapses two distinct constitutional functions: protecting the federal Seat of Government and governing a permanent civilian population. The resulting jurisprudence permits Congress to regulate local affairs with minimal scrutiny, despite the absence of electoral safeguards that ordinarily justify deference. The Article advances a textual and structural rereading of the District Clause. The Clause grants Congress authority over the “Seat of Government,” not “a city,” reflecting a design in which power follows function, not geography. The parallel Enclave Clause confers “like Authority” over federal enclaves, yet courts have recognized that power as functionally limited, not geographically unbounded. Recent dissents in Veneno and Vaello Madero suggest the Supreme Court is increasingly skeptical of plenary power over Tribes and Territories resting on geography alone. The same critique applies to the District. To resolve this tension, the Article proposes a Bifurcation Test. When Congress regulates seat of government functions, such as securing federal property or ensuring the independent operation of the national government, courts apply traditional Palmore deference. But when Congress regulates purely municipal affairs, it must identify a substantial federal interest tied to seat of government functions, and the regulation must bear a meaningful relationship to that interest. This approach does not create a new tier of scrutiny; it withdraws deference where political safeguards are absent and ensures that congressional authority does not become self-validating.
Lawrence Solum