Opinion for the Court filed by Circuit Judge SCALIA, in which Circuit Judges TAMM, WILKEY, GINSBURG, BORK and Senior Circuit Judge MaeKINNON join.
Concurring opinion filed by Circuit Judge WILKEY.
Concurring opinion filed by Circuit Judge MIKVA, in which Chief Judge SPOTTSWOOD W. ROBINSON, III and Circuit Judge J. SKELLY WRIGHT join.
Concurring opinion filed by Senior Circuit Judge MaeKINNON.
Separate concurring statement filed by Circuit Judge HARRY T. EDWARDS.
Circuit Judge WALD concurs in the result only.
SCALIA, Circuit Judge:
We hold today that procedures enacted by Congress-for automatic commitment to mental institutions of federal criminal defendants successfully asserting the insanity defense do not violate the equal protection component of the due process clause of the Fifth Amendment merely because they are applicable only to persons charged in the District of Columbia.
I
Appellant Jeffrey Cohen was arrested on July 23, 1980, near the embassy of the People's Republic of China. In his possession were three home-made bombs and a loaded 30.06 rifle. As he was being apprehended,' Cohen attempted to ignite one of the bombs with a cigarette lighter, apparently in an attempt to kill himself. The next day he was charged with possession of unregistered destructive devices, a federal offense under 26 U.S.C. § 5861(d) (1976). Following a determination of his competency to stand trial, Cohen was tried, initially found guilty as charged, and then, upon consideration of his uncontested insanity defense, and testimony by a clinical psychologist as to his mental state at the time of the arrest, found not guilty by reason of insanity.
The court immediately ordered Cohen committed to Saint Elizabeths Hospital, a hospital for the mentally ill in the District of Columbia, pursuant to the provisions of D.C.Code § 24-301 (1981). Shortly thereafter he received a hearing on his then present mental state, as the statute requires, and was recommitted. Cohen ap peals both commitment orders, contending that the statute's application of the commitment procedures only to defendants in the District of Columbia and not to other defendants tried for identical federal offenses elsewhere, constitutes an arbitrary classification and thereby deprives him of equal protection of the laws.
The statute at issue here, D.C.Code § 24-301 (1981), is no stranger to this court. Its central provisions — establishing a special verdict of "not guilty by reason of insanity" applicable to all cases in which an insanity defense is raised, and providing that a person acquitted by such verdict be automatically committed to a hospital for the mentally insane — represented a conscious and direct congressional response to our opinion in Durham v. United States, 214 F.2d 862 (D.C.Cir.1954), where we abandoned the venerable M'Naghten rule and adopted a more lenient test to establish criminal insanity. Congress believed that the Durham test would " 'result in a flood of acquittals by reason of insanity and fear[ed] that these defendants would be immediately set loose.' " Lynch v. Overholser, 369 U.S. 705, 715, 82 S.Ct. 1063, 1070, 8 L.Ed.2d 211 (1962), quoting Krash, The Durham Rule and Judicial Administration of the Insanity Defense in the District of Columbia, 70 Yale L.J. 905, 941 (1961).
Once committed, the acquitted defendant is entitled to a judicial hearing within 50 days and at six-month intervals thereafter to determine his present mental state. The former provision was also a response to one of our decisions, Bolton v. Harris, 395 F.2d 642 (D.C.Cir.1968). That ruling struck down the statute's automatic commitment provision and permitted the acquitted defendant to be held in a mental institution only long enough to prepare for and conduct a post-trial hearing to establish, by a preponderance of the evidence, that his present mental condition justified his continued incarceration. Id. at 651. Congress found that the situation created by our decision posed a danger to society:
This ruling [Bolton ] permits dangerous criminals . to win acquittals of serious criminal charges on grounds of insanity by raising a mere reasonable doubt as to their sanity and then to escape hospital commitment because the government is unable to prove their insanity following acquittal by a preponderance of the evidence. The result is a revolving door which . allows defendants "to have it both ways" — to escape both conviction and commitment to a hospital.
H.R.Rep. No. 907, 91st Cong., 2d Sess. 74 (1970). Accordingly, Congress amended § 24-301 to reestablish the mandatory commitment feature, to shift the burden of establishing an insanity defense at trial to the defendant, and to provide for the 50-day and subsequent six-month hearings — in which (unlike the hearing required by Bolton) the acquitted defendant bears the burden of establishing his sanity. If he can prove, "by a preponderance of the evidence," see D.C.Code § 24-301(d)(2)(B), (k)(3), that he is no longer mentally ill and dangerous to himself or others, at any of the post-commitment hearings, the statute requires that he be released. Jones v. United States, 432 A.2d 364, 372 & n. 16 (D.C.1981) (en banc), aff'd, 463 U.S. 354, 103 S.Ct. 3043, 77 L.Ed.2d 694 (1983).
Outside of the District of Columbia things are quite different. Several states have enacted automatic criminal commitment procedures similar to D.C.Code § 24-301, but they are applicable only to persons charged with state offenses. There is no comparable federal statutory authority for the commitment of defendants who have successfully presented an insanity defense to a federal criminal charge in United States District Courts in the several states. See United States v. McCracken, 488 F.2d 406, 416 (5th Cir.1974). Indeed, only in the District of Columbia is the special verdict prerequisite to such commitment ("not guilty by reason of insanity") statutorily required. Outside the District, acquitted federal defendants are released from federal custody and will remain free from any custody unless committed by the state through its generally applicable civil commitment procedures. Those procedures, whose nature varies from state to state, are required by the Supreme Court's decision in Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979), to employ at a minimum a "clear and convincing" standard for commitment. Thus, the "gap" eliminated by Congress in the District of Columbia persists elsewhere, creating the disparity in treatment among federal defendants which forms the basis of the equal protection challenge in this action.
II
Before proceeding to the merits of the appeal, a few preliminary issues can usefully be disposed of.
A. Interpretation of § 21¡.-301(d)(l)
In his initial brief appellant asserted that the question of the constitutionality of § 24-301(d)(l) did not have to be reached. He argued that, to avoid constitutional doubt, the statute should not be interpreted "to apply to federal as well as D.C.Code offenses," Appellant's Brief at 27, and should govern "only proceedings involving local criminal offenses," id. at 30. The government met this argument by pointing out, among other things, that such an interpretation would avoid one constitutional issue of equal protection only by raising another — namely, "the establishment of one policy for persons found not guilty of District of Columbia Code offenses by reason of insanity and a different policy for those similarly acquitted of United States Code offenses," Appellee's Brief at 35; and that it is an ephemeral equal protection guarantee which can be avoided by simply prosecuting the defendant for the same offense set forth in the D.C.Code instead of the U.S.Code, Appellee's Supplemental Brief for the En Bane Court at 45.
Appellant has responded by essentially abandoning the assertion that this case can be disposed of on statutory interpretation grounds. The issue, he now maintains, is "whether Congress could legitimately single out persons in the District of Columbia for [burdens] not imposed upon citizens everywhere else, when Congress has chosen to subject all to substantively identical laws furthering the same national interest____ Whether the statute could be packaged in a local rather than a federal code is not relevant once Congress has declared that nationwide concerns are at stake." Appellant's Reply Brief for the En Banc Court at 2. Obviously, if the equal protection inquiry does not depend upon whether the substantive offense is contained in the D.C.Code or the U.S.Code, we would not avoid the constitutional doubt by unnaturally construing the provision under attack to apply only to the former.
In any event, the legislative history of the'provision and decisions of this court indicate its intended application to federal crimes. In 1955, when Congress amended § 24-301 specifically to overrule our decision in Wear v. United States, 218 F.2d 24 (D.C.Cir.1954) — which had held that the more lenient provisions relating to pretrial psychiatric examinations contained in 18 U.S.C. § 4244 superseded the conflicting provisions of D.C.Code § 24-301 — it clearly contemplated the applicability of § 24-301 to all offenses committed in the District, including U.S.Code offenses. See H.R.Rep. No. 892, 84th Cong., 1st Sess. 11 (1955). And we have implemented the provision in accordance with that understanding. See Bolton v. Harris, supra.
We therefore interpret the statute — as it reads — to apply to all offenses prosecuted in the District of Columbia.
B. Standard of Review
Appellant asserts that the application of equal protection principles to the present case must be subject to the so-called "strict scrutiny" test set forth in such cases as In re Griffiths, 413 U.S. 717, 721-22, 93 S.Ct. 2851, 2854-55, 37 L.Ed.2d 910 (1973). That test is applied to legislation that discriminates against a "suspect class," e.g., a minority racial group, see McLaughlin v. Florida, 379 U.S. 184, 191— 92, 85 S.Ct. 283, 287-88, 13 L.Ed.2d 222 (1964), or that impinges upon a "fundamental" right or interest, see, e.g., Shapiro v. Thompson, 394 U.S. 618, 638, 89 S.Ct. 1322, 1333, 22 L.Ed.2d 600 (1969). We find neither here.
In the vast majority of equal protection cases, the focus, for purposes of determining whether a "fundamental interest" is involved, is not upon the punishment or other imposition to which the complaining party has been subjected, but rather upon the activity of the complaining party which has been made the reason for the punishment or imposition. See, e.g., Jones v. Helms, 452 U.S. 412, 425, 101 S.Ct. 2434, 2443, 69 L.Ed.2d 118 (1981). Thus, the rational basis justification normally required to sustain commercial regulation against equal protection attack is not replaced by a "strict scrutiny" test when the consequence of violating the regulation is a deprivation of physical freedom through a jail term, e.g., Seagram & Sons v. Hostetter, 384 U.S. 35, 50-51, 58, 86 S.Ct. 1254, 1263-1264, 1268, 16 L.Ed.2d 336 (1966); nor is the strict scrutiny normally applicable to laws abridging the "fundamental right" to travel, Shapiro v. Thompson, supra, reduced to a rational basis test merely because the deprivation at issue is a nonfundamental entitlement to government benefits, cf. Zobel v. Williams, 457 U.S. 55, 102 S.Ct. 2309, 72 L.Ed.2d 672 (1982). If this focus of inquiry were adopted in the present case, the appellant would of course have no arguable claim to a strict scrutiny standard, since the activity at issue (commission of a federal crime while insane) is hardly a fundamental or even a legitimate one.
In the present case, however, the equal protection attack is directed not at the nature or effect of a substantive law (the ban on possession of unregistered firearms and destructive devices) but at the inequity of the punishment or imposition prescribed for the appellant's violation. It could be argued that in such cases the focus of the "fundamental interest" inquiry shifts as well, from the activity affected by the substantive law to the activity curtailed by the penalty. One Supreme Court case arguably supports such an analysis. In Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942), which involved an equal protection challenge to the constitutionality of compulsory sterilization for some — but not all — third-felony offenders, the Supreme Court found the classification inadequately supported to curtail the "fundamental interest" in human reproduction. Unless, however, the basic right to physical liberty is not to be deemed "fundamental," Skinner's apparent indication that the nature of the penalty or imposition may invoke strict scrutiny for purposes of equal protection analysis is simply incompatible with more recent cases such as United States v. Batchelder, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979), which applied the rational basis test to an equal protection challenge of a statute effectively assigning two different prison sentences for the same offense. See also United States v. Shepard, 515 F.2d 1324 (D.C.Cir.1975). Skinner would probably be decided the same way today on "rational basis" analysis under the equal protection clause, see Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970), or perhaps even on substantive due process grounds, see Roe v. Wade, 410 U.S. 113, 152, 93 S.Ct. 705, 726, 35 L.Ed.2d 147 (1973); id. at 169, 93 S.Ct. at 735 (Stewart, J., concurring); Griswold v. Connecticut, 381 U.S. 479, 485, 85 S.Ct. 1678, 1682, 14 L.Ed.2d 510 (1965). It seems unlikely that strict scrutiny of the classification of punishments or impositions on the basis of "fundamental interest" analysis has any place in modern equal protection law.
It is, in any case, clear that the Supreme Court and this court have consistently applied the ordinary rational basis test in their opinions analyzing equal protection problems raised in the civil commitment of criminal defendants acquitted by reason of insanity. The most recent occasion involved the very statute at issue here. Jones v. United States, supra, 103 S.Ct. at 3048 n. 10. See also Jackson v. Indiana, 406 U.S. 715, 729, 92 S.Ct. 1845, 1853, 32 L.Ed.2d 435 (1972); Humphrey v. Cady, 405 U.S. 504, 508-12, 92 S.Ct. 1048, 1051-53, 31 L.Ed.2d 394 (1972); Baxstrom v. Herold, 383 U.S. 107, 111, 86 S.Ct. 760, 762, 15 L.Ed.2d 620 (1966); United States v. Jackson, 553 F.2d 109, 120 (D.C.Cir.1976) (considering and explicitly rejecting application of strict scrutiny); United States v. Ecker, 543 F.2d 178, 199 (D.C.Cir.1976), cert. denied, 429 U.S. 063, 97 S.Ct. 788, 50 L.Ed.2d 779 (1977); United States v. Brown, 478 F.2d 606, 610-12 (D.C.Cir.1973) (semble); Bolton v. Harris, supra, 395 F.2d at 651. Other federal appellate courts and state supreme courts have done the same. See Harris v. Ballone, 681 F.2d 225, 229 (4th Cir.1982); Powell v. Florida, 579 F.2d 324, 332-33 (5th Cir.1978); In re Franklin, 7 Cal.3d 126, 135, 496 P.2d 465, 470, 101 Cal.Rptr. 553, 558 (1972); People v. Chavez, 629 P.2d 1040, 1052 (Colo.1981) (en banc); Mills v. Delaware, 256 A.2d 752, 756 (Del.1969); Chase v. Kearns, 278 A.2d 132, 138 (Me.1971).
Nor does the statute involve a "suspect class." As described in the Supreme Court's most recent discussion of the subject, the touchstone of such status is that the class is "more likely than others to reflect deep-seated prejudice rather than legislative rationality in pursuit of some legitimate objective." Plyler v. Doe, 457 U.S. 202, 216 n. 14, 102 S.Ct. 2382, 2394 n. 14, 72 L.Ed.2d 786 (1982). It is hard to see why the federal legislature would have a particular "deep-seated prejudice" against individuals who are tried within the District of Columbia. The Court has further noted that "most of the classifications that we have recognized as suspect . [are] the product of [in]voluntary action," id. at 219 n. 19, 102 S.Ct. at 2396 n. 19, often "an immutable characteristic determined solely by the accident of birth," Frontiero v. Richardson, 411 U.S. 677, 686, 93 S.Ct. 1764, 1770, 36 L.Ed.2d 583 (1973). Commission of an act resulting in criminal prosecution in the District of Columbia is hardly an involuntary or immutable attribute. Finally, the Supreme Court has said that the "suspect class" designation applies to groups that "have historically been 'relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.' " Plyler v. Doe, supra, 457 U.S. at 217 n. 14, 102 S.Ct. at 2394 n. 14; quoting from San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 28, 93 S.Ct. 1278, 1294, 36 L.Ed.2d 16 (1973). Appellant asserts this to be applicable, on the assumption that the group affected by the statute consists of residents of the District of Columbia, who cannot vote in federal elections. That is not, however, the case, since the legislation applies to all individuals, wherever resident, tried within the District. This group consists principally of those who commit crimes within the District, a class within which some of the (assertedly politically powerless) District residents are likely to be included, but within which many residents of other states, particularly Virginia and Maryland, are likely to be included as well — and within which the most politically powerful members of society are particularly likely to be included. See, e.g., United States v. Kelly, 707 F.2d 1460 (D.C.Cir.1983) (former Member of Congress — Abscam investigation); United States v. Ehrlichman, 546 F.2d 910 (D.C.Cir.1976) (former Assistant to the President for Domestic Affairs — Watergate scandal); Fall v. United States, 49 F.2d 506 (D.C.Cir.1931) (former Secretary of the Interior — Teapot Dome scandal). Moreover, even if one accepts the thesis that the class in question is residents of the District of Columbia, the mere lack of the ballot does not establish political powerlessness, or, if it does, political powerlessness alone is not enough for "suspect class" status. Minors, for example, are not a suspect class. Williams v. City of Lewiston, 642 F.2d 26, 28 (1st Cir.1981). It is, in any event, fanciful to consider as "politically powerless" a city whose residents include a high proportion of the officers of all three branches of the federal government, and their staffs.
The notion that the residents of the District of Columbia constitute a "suspect class" formed an alternate ground for application of strict scrutiny by a panel of this court in United States v. Thompson, 452 F.2d 1333, 1340-41 (D.C.Cir.1971). That notion in particular, and the broader proposition that disparate treatment of District of Columbia defendants must be supported by more than mere "rational basis" justification, was implicitly but clearly disapproved by the Supreme Court in Swain v. Pressley, 430 U.S. 372, 97 S.Ct. 1224, 51 L.Ed.2d 411 (1977). That case involved a challenge to D.C.Code § 23-110(g), which required applications for habeas corpus by prisoners convicted of D.C.Code offenses to be lodged with Article I courts of the District, rather than with the Article III United States District Court. One of the grounds of challenge was an equal protection claim which had been accepted by this court in a companion case that had been consolidated with Pressley but that had been vacated and remanded before Pressley was decided. See Palmore v. Superior Court of the District of Columbia, 515 F.2d 1294 (D.C.Cir.1975) (en banc); 424 U.S. 907, 96 S.Ct. 1101, 47 L.Ed.2d 311 (consolidation with Pressley in government's petition for certiorari); 430 U.S. at 376 n. 7, 97 S.Ct. at 1227 n. 7 (description of vacation of judgment and remand). The Supreme Court said:
The Court below in Palmore . also suggested the possibility that § 23-110(g) might be unconstitutional because it denied persons convicted in the Superi- or Court equal protection of the laws. These persons must assert any collateral attack on their convictions before Art. I judges, whereas persons convicted under general federal law are allowed to attack their convictions before Art. Ill judges. But precisely the same classification is made with respect to the original trial and appeal process, which we have already held constitutional. Palmore v. United States, 411 U.S. 389 [93 S.Ct. 1670, 36 L.Ed.2d 342 (1973) ]. It is certainly reasonable to make the same classification for collateral-review purposes as for purposes of trial and direct review.
A rational basis for the classification is found in the purpose behind the Court Reform Act.
430 U.S. at 379 n. 12, 97 S.Ct. at 1229 n. 12 (citation omitted). Counsel before us in Palmore had addressed, and we had considered — with extensive citation to Thompson — the argument (similar to that raised by appellant here, at least at the en banc stage), that federal defendants in the District cannot be treated differently from federal defendants elsewhere solely on the basis of the particular code under which prosecution is brought. The Supreme Court's rejection of the equal protection claim on a mere "rational basis" analysis seems to us a considered rejection of Thompson's assertion that provisions uniquely applicable to the District demand a higher degree of scrutiny.
The classification in the present case also does not qualify for what the Supreme Court has called "intermediate scrutiny," Plyler v. Doe, supra, 457 U.S. at 218 n. 16, 102 S.Ct. at 2395 n. 16, which requires the classification to be justified by a "substantial" (rather than a "compelling") state interest, id. at 224, 102 S.Ct. at 2398. Variants of that review standard have thus far been applied to classification by sex, Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976), classification by legitimacy of birth, Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978), and classification by lawfulness of presence within the United States for the purpose of determining qualification for state-provided education, Plyler v. Doe, supra. What is needed to invoke that standard is unclear, but it surely includes a requirement that the class in question have some of the characteristics of a suspect class, or that the interest in question almost qualify as a fundamental right. See Trimble v. Gordon, 430 U.S. 762, 767, 97 S.Ct. 1459, 1463, 52 L.Ed.2d 31 (1977) ("illegitimacy is analogous in many respects to the personal characteristics that have been held to be suspect"); Plyler v. Doe, supra, 457 U.S. at 223, 102 S.Ct. at 2398 (the statute under challenge "imposes a lifetime hardship on a discrete class of children not accountable for their disabling status"). On that basis, the present legislation does not qualify, since we find it totally devoid of those characteristics invoking strict scrutiny.
Ill
We turn, then, to the merits of the matter, applying the requirement that in order for the statute to survive an equal protection challenge, the different treatment accorded federal defendants acquitted by reason of insanity within the District of Columbia and those acquitted on such grounds elsewhere, must have a "rational basis." The test is no more severe than the realities of government permit, as the following oft-quoted description makes clear:
The problem of legislative classification is a perennial one, admitting of no doctri naire definition. Evils in the same field may be of different dimensions and proportions, requiring different remedies. Or so the legislature may think____ Or the reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind____ The legislature may select one phase of one field and apply a remedy there, neglecting the others____ The prohibition of the Equal Protection Clause goes no further than the invidious discrimination.
Williamson v. Lee Optical Co., 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563 (1955) (citations omitted). Accord, Califano v. Jobst, 434 U.S. 47, 57, 98 S.Ct. 95, 101, 54 L.Ed.2d 228 (1977).
We proceed to discuss in detail the elements that make the legislative distinction here under attack an eminently reasonable one.
A. Federalism
The assertion that Congress acted irrationally when, in enacting mandatory commitment procedures applicable to the District, it "failed to act nationally to achieve the same purpose," Appellant's Brief for the En Banc Court at 17, totally ignores the substantial concern of federalism. It would be enough, for purposes of "rational basis" analysis, merely that that factor could have underlain the congressional reluctance to legislate more broadly. See United States Railroad Retirement Board v. Fritz, 449 U.S. 166, 179, 101 S.Ct. 453, 461, 66 L.Ed.2d 368 (1980) (where "there are plausible reasons for Congress' action," it is " 'constitutionally irrelevant whether this reasoning in fact underlay the legislative decision,' " quoting Flemming v. Nestor, 363 U.S. 603, 612, 80 S.Ct. 1367, 1373, 4 L.Ed.2d 1435 (I960)); McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961) ("a statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it"). In the present case, however, we need not rely upon a mere assessment of plausible reasons. Congress has on a number of occasions considered providing for the commitment, nationwide, of federal defendants acquitted on grounds of insanity. The most recent occasion brought forth a well considered analysis by the House Judiciary Committee of the major concern leading to rejection:
The Committee recognizes that the Federal government is one of specifically enumerated powers. State governments, on the other hand, may act in any given area unless specifically prohibited by the Constitution. Commitment and treatment of the mentally ill has traditionally been left to the states pursuant to their parens patriae or general police power. The Federal government has no such authority. Foote, A Comment on Pre-Trial Commitment of Criminal Defendants, 108 U.Pa.L.Rev. 832 (1960)____ [The report then considers in detail whether Congress has the constitutional authority to provide for a nationwide federal commitment procedure, but draws no firm conclusion.] [ ]
In view of these considerations, the Committee believes that a Federal procedure for the commitment of the dangerously mental [sic] disturbed would constitute an inappropriate interference with the balance of Federal and State powers. Moreover, such a procedure could constitute a precedent for further Federal involvement in the care of the mentally ill. Once the Federal Government takes on the task of caring for the dangerously mental [sic] ill that become involved in the Federal criminal system, Congress would most likely be asked to expand the Federal role even further. For example, legislation might be proposed allowing the Federal Government to take over State mental health institutions, or to accept the transfer of those incarcerated there, when the State is allegedly not doing a satisfactory job. The Committee thus believes that the care of the mentally ill is a task that uniquely belongs within the parens patriae powers of the States.
H.R.Rep. No. 1396, 96th Cong., 2d Sess. 559, 561 (1980). If we were reviewing this aspect of the legislation as though it were merely the rule of a- federal agency, we could hardly ask for a clearer and more persuasive statement of basis and purpose.
B. Special Concern for the District of Columbia
Even if a nationally uniform law on the present subject were not regarded as treading upon the prerogatives of the states, there would still be special reason for Congress to enact such a law in the District of Columbia and not elsewhere. Its responsibility for the general welfare of the citizenry in that location is especially grave because it is not shared. See Neild v. District of Columbia, 110 F.2d 246, 250-51 (D.C.Cir.1940). And even if the responsibility were nationally uniform, there would be special reason to exercise that responsibility with regard to confinement of the insane prone to criminal acts within the Nation's Capitol. Recent events demonstrate, if any demonstration is needed, that the attraction of the mentally disturbed to politically prominent figures is a strong one. See United States v. Hinckley, 525 F.Supp. 1342 (D.D.C.1981). The same concern for the welfare of its officials that induces the United States to assign protective personnel to particular persons and to particular buildings within the District also reasonably reflects itself in special steps to control the criminally insane in this location.
C. Separate Grant of Legislative Authority
The commitment procedures challenged in this case have been imposed under that constitutional grant which authorizes the federal government "[t]o exercise exclusive Legislation in all Cases whatsoever, over such District . as may . become^ the Seat of the Government of the United States." U.S. Const, art. I, § 8, cl. 17. Appellant's position amounts to the assertion that when the federal government has done as much as it can to achieve a particular goal through the exercise of this branch of its powers, it must yet further justify, under the Equal Protection Clause, its failure to pursue the same end under its other powers. We know of no authority for such a proposition and believe that the law is quite to the contrary.
Achieving a particular legislative goal through the exercise of a single legislative authority is almost the paradigm of the "one step at a time" approach approved by Williamson v. Lee Optical Co., supra, 348 U.S. at 489, 75 S.Ct. at 465, and has been the basis for the evolution of much of our law. For example, modern antidiscrimination sanctions were first imposed upon employers within reach of the federal government's war power, see, e.g., Exec. Order No. 8802 (June 25, 1941), 3 C.F.R., 1938-43 Comp, at 957 (requiring all federal contracting agencies to include an anti-discrimination covenant in defense contracts); were then extended to employers within reach of the contracting power, see Exec. Order No. 10,479 (Aug. 13, 1953), 3 C.F.R., 1949-53 Comp, at 961 (extending coverage to non-defense contracts); then to those within reach of the spending clause, see Exec. Order No. 11,114 (June 22, 1963), 3 C.F.R., 1959-63 Comp, at 774 (extending coverage to all federally assisted construction contracts); see generally Contractors Association v. Secretary of Labor, 442 F.2d 159, 168-71 (3d Cir.1971); then to those within reach of the commerce clause, see Title VII of the Civil Rights Act of 1964, 78 Stat. 253, 42 U.S.C. § 2000e et seq. (1970) (prior to 1972 amendment) covering employers, employment agencies and labor organizations engaged in an industry affecting commerce that employs 25 or more employees); and finally, to those (state and local governments as employers) within reach of the Fourteenth Amendment, see Equal Employment Opportunity Act of 1972, 86 Stat. 103, 42 U.S.C. § 2000e et seq. (1976 & Supp. V 1981); Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). At none of those stages was it, to our knowledge, contended — and it was certainly never held — that the failure to impose similar restrictions, for purposes of achieving the same policy, upon other employers within the reach of other federal powers constituted a denial of equal protection of the laws. Such a proposition would eliminate one of the major devices for achieving gradual reform, for the pattern described with respect to the civil rights laws has been followed in other fields as well— for example, minimum wage legislation. Compare Act of June 19, 1912, ch. 174, 37 Stat. 137, repealed by Act of Aug. 13, 1962, 76 Stat. 360, 40 U.S.C. § 324 (1976) (establishing a minimum wage for employees working on federal buildings), with the Fair Labor Standards Act of 1938, § 6, 52 Stat. 1062 (current version at 29 U.S.C. § 206 (1976 & Supp. V 1981)) (establishing a national minimum wage for all employees in interstate commerce). See also Dodd, From Maximum Wages to Minimum Wages: Six Centuries of Regulation of Employment Contracts, 43 Colum.L.Rev. 643, 666-79 (1943).
In other words, in a sense the Constitution itself establishes the rationality of the present classification, by providing a separate federal power which reaches only the present group. As the Supreme Court has said in rejecting equal protection challenges to legislation affecting a group which (unlike District residents) might otherwise qualify as a "suspect class": "[T]he Constitution itself provides support for legislation directed specifically at the Indian tribes____ [T]he Constitution therefore 'singles Indians out as a proper subject for separate legislation.' " United States v. Antelope, supra, 430 U.S. at 649 n. 11, 97 S.Ct. at 1400 n. 11, quoting from Morton v. Mancari, 417 U.S. 535, 552, 94 S.Ct. 2474, 2483, 41 L.Ed.2d 290 (1974). So also here. Just as one need not inquire whether a soldier is so distinctively situated that it is rational to impose upon him prohibitions not extended, under other constitutional powers, to the citizenry at large; or whether the interstate enterprise is for the relevant purposes different from the local employer who may be reached under other constitutional grants; or whether consumer protection provisions imposed upon merchants within the District of Columbia must rationally be imposed, under the commerce clause, upon merchants elsewhere; so also in the present case, there is no doubt that the treatment of individuals acquitted on grounds of insanity in criminal trials within the District of Columbia need not be extended to defendants similarly acquitted in federal trials elsewhere.
Judgment affirmed.
. He also initially urged, but has since abandoned, the argument that § 24-301 ought to be restrictively read as applying only to persons charged with local (i.e., D.C.Code) offenses. See infra at 131-32.
. D.C.Code § 24-301(c) provides:
When any person tried upon an indictment or information for an offense, or tried in the Family Division of the Superior Court of the District of Columbia for an offense, is acquitted solely on the ground that he was insane at the time of its commission, that fact shall be set forth by the jury in their verdict.
. D.C.Code § 24 — 301(d)(1) provides:
If any person tried upon an indictment or information for an offense raises the defense of insanity and is acquitted solely on the ground that he was insane at the time of its commission, he shall be committed to a hospital for the mentally ill until such time as he is eligible for release pursuant to this subsection or subsection (e) of this section.
. D.C.Code § 24-301(d)(2) provides in relevant part:
(A) A person confined pursuant to paragraph (1) of this subsection shall have a hearing, unless waived, within 50 days of his confinement to determine whether he is entitled to release from custody.
. D.C.Code § 24-301(k) provides in relevant part:
(1) A person in custody . pursuant to the provisions of this section, claiming the right to be released from custody, . may move the court having jurisdiction to order his release, to release him from custody____
(5) A court shall not be required to entertain a 2nd or successive motion for relief under this section more often than once every 6 months.
. D.C.Code § 24-30 l(j) provides in relevant part:
No person accused of an offense shall be acquitted on the ground that he was insane at the time of its commission unless his insanity, regardless of who raises the issue, is affirmatively established by a preponderance of the evidence.
. See, e.g., Colo.Rev.Stat.Ann. § 16-8-105 (1978 Replacement Vol.); Del.Code Ann. tit. 11, § 403 (Supp.1982); Ga.Code Ann. § 17-7-131 (Supp. 1983); Kan.Stat.Ann. § 22-3428 (1981); La.Code Crim.Proc.Ann. art. 654 (West Supp.1983) (capital offenses only); Me.Rev.Stat.Ann. tit. 15, § 103 (1980); Mo.Ann.Stat. § 552.040 (Vernon Supp. 1983); Nev.Rev.Stat. § 175.521 (1981 Replacement Page); Wisc.Stat.Ann. § 971.17 (West 1971 & Supp.1983).
. We express no opinion as to the constitutionality of extending such state statutes to defendants acquitted by reason of insanity in federal trials. See Appellee's Supplemental Brief for the En Banc Court at 14 n. 8.
. There is nothing in the text or history of the subsequently enacted District of Columbia Court Reform and Criminal Procedure Act of 1970, Pub.L. No. 91-358, 84 Stat. 473, to support appellant's contention that it was meant to alter the application of § 24-301, and our later decisions do not support that contention. See United States v. Greene, 489 F.2d 1145, 1171-72 & nn. 65, 66 (D.C.Cir.1973) (Statement of Chief Judge Bazelon as to Why He Would Grant Rehearing En Banc).
. The concurring opinion of Judge Mikva disagrees with our analysis of the standard of equal protection review, for reasons that we cannot address since they are unexpressed. Mikva op. at 150 n. *. The concurrence spares itself the necessity of conducting this analysis by constructing a dichotomy between action by Congress in its national capacity and action by Congress as a local sovereign. Where the latter is involved, the concurrence asserts, equal protection analysis "will virtually always yield an overriding governmental interest [to support the] congressional decision," Mikva op. at 144, and indeed "[t]he Equal Protection Clause is simply not called out," id. at 144. This resembles one branch of our analysis, see Part IIIC, infra, except for the unprecedented test which Judge Mikva would apply to determine whether Congress is acting as a local sovereign: It is not enough that the law in question applies only locally, in the District of Columbia. In addition to exercising its own authority locally, Congress must permit the states to exercise similar local authority within their own respective jurisdictions.
Although it might have been a good means of buttressing federalism and of assuring the District of Columbia some of the benefits of statehood, the Constitution does not contain the principle that Congress cannot exercise its powers as a local sovereign where it has preempted the states from exercising similar local powers. Nothing prevents Congress from mistrusting and thus overriding the local authority of the states with regard to certain matters, while leaving its own local authority, in which it may have greater confidence, unimpaired. It may, for example, impose a 55-mile-per-hour speed limit on interstate highways nationwide, while leaving itself free to permit higher speeds on the interstate highways in the District that are subject to its own local judgment. Judge Mikva, we take it, would not contest this — but he seeks to impose a similar limitation upon the federal structure through the Bill of Rights, erecting a requirement of greater justification, for equal protection purposes, of laws enacted by Congress for the District /which Congress is unwilling to permit the states to enact for themselves. Whether Congress has chosen to permit the states to act locally seems to us to have nothing to do with whether Congress itself may validly do so. If and when equal protection analysis requires a finding of "local interest" underlying congressional action, it is full and complete evidence of such an interest that Congress adopts a special rule locally with beneficial local effects. Nothing is subtracted from that reality by Congress's decision to preempt exercise of similar local authority by the states; and nothing is added to equal protection analysis by making it the crucible for new amalgams of federalism.
Judge Mikva's opinion is a concurrence rather than a dissent only because it has the good sense to misapply the theory it has miscreated. If the equal protection distinction between national action and local action (as Judge Mikva defines them) existed, it would leave this case on the wrong side of the door. The ability of the states to treat other federal defendants as Mr. Cohen has been treated in the District depends upon the rendering, by a federal court, of a verdict of not guilty by reason of insanity. Yet such a verdict on the part of federal courts obviously cannot be compelled by state legislá-
tures, and has been prescribed by Congress only for federal courts within the District of Columbia. It is true enough, as Judge Mikva argues, Mikva op. at 147-48, that the mere prescription of a different verdict for District defendants does not give rise in and of itself to equal protection concerns. But it is utterly unrealistic thus to analyze the prescribed verdict in isolation from its intended consequences. It seems to us undeniable that Congress has prescribed for defendants tried for federal crimes within the District a treatment that is different, in fundamental and significant respects, from the treatment which the states have the power to impose upon defendants tried for federal crimes elsewhere: exposure to a verdict of not guilty by reason of insanity, which results in automatic commitment and a shifting of the burden of proof. If the theory of equal protection analysis were as Judge Mikva suggests, it would be unjust to deprive this appellant of his rights by the device of analyzing separately the two parts of a unitary legislative scheme.
. Appellant quotes Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 1809, 60 L.Ed.2d 323 (1979), for the proposition that "civil commitment for any purpose constitutes a significant deprivation of liberty." He might also quote Jones v. United States, supra, 103 S.Ct. at 3048, for the same proposition. He omits, however, the last part of the quoted sentence, which is "that requires due process protection," id. These are due process rather than equal protection cases. In procedural due process analysis unlike equal protection analysis, the gravity of the punishment or imposition is critical, both for the purpose of determining whether it constitutes a "deprivation of liberty or property," see Board of Regents v. Roth, 408 U.S. 564, 569-70, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972), and for the purpose of determining the procedures such a degree of deprivation may demand, compare Goss v. Lopez, 419 U.S. 565, 577-83, 95 S.Ct. 729, 738-40, 42 L.Ed.2d 725 (1975), with Ingraham v. Wright, 430 U.S. 651, 682, 97 S.Ct. 1401, 1418, 51 L.Ed.2d 711 (1977).
. We do not have the facts of Thompson before us, and so do not speak to the holding of that case, which was based upon alternate grounds. We do disapprove, however, the rationale expressed in that decision, and which the concurring opinion in this case would seek to preserve in some diluted form, see Mikva op. at 145-46, that distinctive legislative treatment of the District is "particularly suspect" and thus requires more than a rational basis to support it. Thompson, supra, 452 F.2d at 1341. We reject that concept whether applied to legislation that is assertedly "local" or assertedly "national" under Judge Mikva's analysis, see note 10, supra.
. The Supreme Court has said that intermediate scrutiny will be applied only "when concerns sufficiently absolute and enduring can be clearly ascertainable from the Constitution and our cases," Plyler v. Doe, supra, 457 U.S. at 218 n. 16, 102 S.Ct. at 2395 n. 16.
. See, e.g., H.R.15046, 91st Cong., 1st Sess. (1969); H.R.3907, 94th Cong., 1st Sess. § 3613 at 264 (1975); S.979, 91st Cong., 1st Sess. (1969); S.1437, 95th Cong., 2d Sess. § 3613 at 254 (1978).
. The issue, of course, is whether such congressional action would run afoul of the Tenth Amendment, because legislative authority in the general field of lunacy is reserved to the states. That issue was raised, but not resolved by the Supreme Court's decision, in Greenwood v. United States, 350 U.S. 366, 76 S.Ct. 410, 100 L.Ed. 412 (1956), which involved federal treatment of a defendant found not competent to stand trial on federal charges. The narrow basis on which the Court found such treatment permissible— i.e., not barred by the Tenth Amendment — was that until the federal charges had been disposed of, the individual was properly in the custody of the United States. Id. at 375, 76 S.Ct. at 415. If that is the only permissible basis for federal action in this field, then once the criminal custody is terminated, which may occur at the moment the defendant is acquitted, see Note, Federal Commitment of Defendants Found Not Guilty by Reason of Insanity — Proposed Legislation, 52 Iowa L.Rev. 930 (1967), the constitutional underpinnings of federal treatment may also dissolve.
Neither the government nor (of course) the appellant urges this view, and we decline to reach the issue here, since we find more than adequate basis for Congress's special treatment of District of Columbia acquittals even if Congress has the power to legislate nationwide. If it does not have that power, of course, appellant's equal protection claim becomes utterly frivolous: Defendants acquitted in federal courts in the several states, no longer being subject to federal jurisdiction, would not constitute a proper reference class for equal protection purposes. See United States v. Antelope, 430 U.S. 641, 649 n. 12, 97 S.Ct. 1395, 1400 n. 12, 51 L.Ed.2d 701 (1977).