concurring:
I fully concur in Judge Leval’s opinion for the court, but I write separately to take issue with his suggestion that “statehood or a constitutional amendment may not be necessary prerequisites to permitting U.S. citizens residing in Puerto Rico or [the] other territories1 to vote for the office of President.” Ante at 128 (Leval, /., writing separately). See also Amber L. Cottle, Comment, Silent Citizens: United States Territorial Residents and the Right to Vote in Presidential Elections, 1995 U. Chi. Legal. F. 315, pt. II.B. (1995). Judge Leval advances the following proposal: “Congress might permit every voting citizen residing in a territory to vote for the office of President by requiring every state that chooses its electors by popular vote (which all States do) to include in that State’s popular vote the State’s pro rata share of the votes cast by U.S. citizens in the territories” (“the Pro Rata Proposal”). Id. at 129-30 (Leval, /., writing separately). Respectfully, I cannot agree with my colleague: I find no authority in the Constitution for the Congress . (even with the states’ consent) to enact such a provision.
“The Constitution creates a Federal Government of enumerated powers,” United States v. Lopez, 514 U.S. 549, 552, 115 *132S.Ct. 1624, 131 L.Ed.2d 626 (1995); see Gregory v. Ashcroft, 501 U.S. 452, 457, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991), and it is on these enumerated powers that every congressional enactment having the force of law must rest. I can identify only four constitutionally enumerated powers that could arguably be candidates to support enactment of the Pro Rata Proposal: the Commerce Clause, § 5 of the Fourteenth Amendment, § 2 of the Fifteenth Amendment, and the Spending Clause.2 However, as I shall explain, none of these provisions can support the Pro Rata Proposal.
As recent jurisprudence has made clear, the Commerce Clause is wholly deficient as a potential source of authority for Congress to mandate that the states accept the votes of U.S. citizens residing in the territories. First of all, a reasonable nexus to interstate commerce is lacking. See United States v. Morrison, 529 U.S. 598, 609, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000) (holding that, at a minimum, regulated activity must “substantially affect” interstate commerce); United States v. Lopez, 514 U.S. 549, 558-59, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) (same). Second, even assuming an interstate commerce nexus could be advanced, the Commerce Clause does not afford Congress the authority to “issue directives requiring the States to address particular problems, [or to] command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.” Printz v. United States, 521 U.S. 898,. 936, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997). “[S]uch commands are fundamentally incompatible with our constitutional system of dual sovereignty.” Id.; see also New York v. United States, 505 U.S. 144, 162, 112 S.Ct. 2408 , 120 L.Ed.2d 120 (1992) (“While Congress has substantial powers to govern the Nation directly, including in areas of intimate concern to the States, the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ intentions.”); id. at 166, 112 S.Ct. 2408 (“We have always understood that even where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts.”). I see no distinction between the Pro Rata Propos*133al’s mandate that state officials tabulate a share of the votes of the territories in federal elections and other constitutionally infirm federal mandates commandeering the states.
The Pro Rata Proposal would fare no better as an enactment under either § 5 of the Fourteenth Amendment or § 2 of the Fifteenth Amendment. Congress’s authority under § 5, and presumably under § 2 as well,3 is limited to (1) prohibiting conduct that itself violates the amendments’ substantive guarantees and (2) remedying or deterring violations of these guarantees by “prohibiting a somewhat broader swath of conduct” than is otherwise unconstitutional, Bd. of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 121 S.Ct. 955, 963, 148 L.Ed.2d 866 (2001), subject to the requirement that there be a “congruence and proportionality between the [violation] to be prevented or remedied and the means adopted to that end.” City of Boerne v. Flores, 521 U.S. 507, 520, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997); see College Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 673, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999) (“[T]he term ‘enforce’ [in § 5] is to be taken seriously — ... the object of valid § 5 legislation must be the carefully delimited remediation or prevention of constitutional violations.”).
It could be argued that because a large segment of the population of the territories is Latino, black, or of Pacific Islander or Asian extraction, the exclusion of U.S. citizens residing in the territories from the vote for electors to the electoral college therefore has a disproportionately discriminatory effect. Cf. Jamin B. Raskin, Is This America? The District of Columbia and the Right to Vote, 34 Harv. C.R.-C.L. L.Rev. 39, 65-70 (1999). Of course, this does not make the enfranchisement of U.S. citizens residing in the territories a proper subject of congressional action under § 5 or § 2 because neither the Fourteenth Amendment nor the Fifteenth Amendment proscribes “discriminatory effects.” Only intentional discrimination is barred by these amendments.4 See Mobile v. Bolden, 446 U.S. 55, 63-64, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980); Washington v. Davis, 426 U.S. 229, 239-45, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976); see, e.g., Voinovich v. Quitter, 507 U.S. 146, 158, 113 S.Ct. 1149, *134122 L.Ed.2d 500 (1993); Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 484-85, 102 S.Ct. 3187, 73 L.Ed.2d 896 (1982); see also Garrett, 531 U.S. 356, 121 S.Ct. 955, 967, 148 L.Ed.2d 866 (2001) (“Although disparate impact may be relevant evidence of racial discrimination, such evidence alone is insufficient even where the Fourteenth Amendment subjects state action to strict scrutiny.” (internal citation omitted)); see generally Michael Selmi, Proving Intentional Discrimination: The Reality of Supreme Court Rhetoric, 86 Geo. L.J. 279, 309-17 (1997).
More significantly, the inability of U.S. citizens residing in the territories to vote for presidential electors is simply not a violation of either amendment, and therefore cannot be “remedied” under either § 5 or § 2.5 To the contrary, the exclusion of the territories from the presidential-selection process is a deliberate product of our Constitution.6 As our decision today states,
The Constitution ... confers the right to vote in presidential elections on electors designated by the States, not on individual citizens.... The states have uniformly exercised their Article II authority by delegating the power to appoint presidential (and vice-presidential) electors to U.S. citizens residing in the states to be exercised in democratic elections.... U.S. citizens who are residents of Puerto Rico and the other U.S. territories have not received similar rights to vote for presidential electors because the process set out in Article II for the appointment of electors is limited to “states” and does not include territories. U.S. territories (including Puerto Rico) are not states, and therefore ... the absence of presidential and vice-presidential voting rights for U.S. citizens living in U.S. territories does not violate the Constitution.
Ante at 123-24 (paragraph breaks omitted).
The Spending Clause of Article I does not provide congressional authority to enact Judge Leval’s Pro Rata Proposal either.7 While “the power of Congress to *135authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution,” the spending power is “not unlimited.” South Dakota v. Dole, 483 U.S. 203, 207, 107 S.Ct. 2793, 97 L.Ed.2d 171 (1987) (internal quotation marks and citations omitted).
Under the Spending Clause, Congress may provide federal funds to a state in exchange for that state’s acceptance of an attached condition. In this way, Congress and the state are essentially contracting parties, with the federal funds simply serving as consideration for the state’s adherence to the condition. In so far as the Pro Rata Proposal might simply “require” a state to accept a share of the votes from the territories without the state’s consent, it could not be supported under the Spending Clause.
Even if the Pro Rata Proposal were conditioned on state consent as the Spending Clause requires, it could still not be sustained under Congress’s spending authority. For Congress to exercise its spending authority validly, the state government must have the authority, both under the Federal Constitution and the state’s constitution, to agree to the particular condition. See Dole, 483 U.S. at 207-08, 107 S.Ct. 2793 (noting that “other constitutional provisions may provide an independent bar to the conditional grant of federal funds”). It is plain that the Federal Constitution does not afford a state government the authority to “accept a proportionate share of the presidential votes of citizens of the territories.” Ante, at 130 (Leval, J., writing separately); cf. New York, 505 U.S. at 181, 112 S.Ct. 2408 (stating that the states cannot consent to “depart[ures] from the constitutional plan”).
To fully understand why, one need simply consider the structural effect of the Pro Rata Proposal: under it, a state would in essence “share” with the territories (albeit on a pro rata basis) its authority to select electors. Yet, Article II, § 1 of the Federal Constitution provides that the “State shall appoint” “a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.” U.S. Const, art. II, § 1 (emphasis added). The text is both clear and obligatory: the selection of a state’s electors is to rest with the “State,” either through the people directly or through the state legislature. Thus, this power may not be shared, pooled, or otherwise diluted even with a state’s consent.
The Constitution having assigned the authority to select electors to the states exclusively, neither the Congress nor the officials of the states may, consistent with the Supremacy Clause, alter that scheme.8 *136See generally 1 Laurence H. Tribe, Amen-can Constitutional Law § 6-1, at 1024 (3d ed. 2000) (“[T]here are Union-reinforcing restrictions that flow from the Constitution’s structure alone, without any reliance upon grants of power to Congress, and that are clearly as binding on Congress as on the states. Such restrictions include ... the principle that neither the states nor Congress may reshape the relationships specified in the Constitution between citizens of the nation and their federal representatives.”); id. § 6-35, at 1246 (“[S]ome federalism-based limits on state action reflect structural considerations so basic to the nature and cohesion of the Union that Congress should be no more empowered to waive those limits than the states are authorized to transgress them.”).
My belief that Judge Leval’s proposal would be constitutionally infirm does not undermine the concern I share with him that the U.S. citizens residing in the territories are not being afforded a meaningful voice in national governance.9 See generally T. Alexander Aleinikoff, Puerto Rico and the Constitution: Conundrums and Prospects, 11 Const. Comment. 15, 43 (1994). However, I see only two remedies afforded by the Constitution: (1) statehood for each of the territories, see U.S. Const, art. IV, § 3, or (2) a constitutional amendment providing the territories with voting representatives to Congress and the electoral college.10
. In addition to the Commonwealth of Puerto Rico, the territories of the United States with permanent populations include the Territory of Guam, the Territory of the U.S. Virgin Islands, the Commonwealth of the Northern Mariana Islands, and the Territory of American Samoa. Through legislation, Congress has conferred U.S. citizenship on those born in Puerto Rico, see 8 U.S.C. § 1402, Guam, see id. § 1407, the U.S. Virgin Islands, see id. § 1406, and the Northern Mariana Islands, see 48 U.S.C. § 1801 (approving the "Covenant to Establish a Commonwealth of the Northern Mariana Islands,” § 301 of which provides for U.S. citizenship). Those born in American Samoa, on the other hand, are not citizens but rather "American nationals.” 8 U.S.C. § 1101(a)(21), (22). See generally Jonathan C. Drimmer, The Nephews of Uncle Sam: The History, Evolution, and the Application of Birthright Citizenship in the United States, 9 Geo. Immigr. L.J. 667, 700 (1995) (criticizing the fact that the Fourteenth Amendment’s citizenship guarantee, which provides that "[a]U persons born ... in the United States ... are citizens of the United States,” has not been extended to the territories).
. In his separate views, Judge Leval suggests that the Territorial Clause of Article IV, § 3, cl. 2, which provides that Congress has the power to “make all needful Rules and Regulations respecting the Terrilor[ies],” could also serve as a source of constitutional authority for Congress to require the states to accept a pro rata share of the votes of the territories.
While it is true that the Territorial Clause affords Congress substantial leeway to govern the territories, Simms v. Simms, 175 U.S. 162, 20 S.Ct. 58, 44 L.Ed. 115 (1899), that power is not without limitations. See, e.g., Dorr v. United States, 195 U.S. 138, 24 S.Ct. 808, 49 L.Ed. 128 (1904); see also United States v. Verdugo-Urquidez, 494 U.S. 259, 268-69, 110 S.Cl. 1056, 108 L.Ed.2d 222 (1990) ("Only fundamental constitutional rights are guaranteed to inhabitants of those territories.”); see generally Jon M. Van Dyke, The Evolving Legal Relationships Between the United States and Its Affiliated U.S.-Flag Islands, 14 U. Haw. L.Rev. 445, 453-71 (1992). The provision by ils terms does not afford Congress the authority to impose requirements on the states in Congress's regulation of the territories. See also U.S. Const, amend. X (non-delegated powers are reserved to the states); U.S. Const. arL. IV, § 3 (territory of a state cannot be changed without the consent of the concerned state's legislature); Texas v. White, 7 Wall. 700, 725, 19 L.Ed. 227 (1868) (holding unconstitutional Texas's attempted secession from Lhe Union: “[T]he preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as Lhe preservation of Lhe Union and the maintenance of the National government. The Constitution, in all of its provisions, looks to an indestructible Union, composed of indestructible States.” (emphasis added)).
. Although the Supreme Court has not yet articulated the standard for accessing the scope of Congress's authority under § 2 of the Fifteenth Amendment, the fact that both § 5 and § 2 by their terms provide Congress with only the “power to enforce” the substantive provisions of the Amendments strongly suggests that the limitations on Congress’s authority under § 2 are similar to those under § 5. See Bd. of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 121 S.Ct. 955, 967 & n. 8, 148 L.Ed.2d 866 (2001) (discussing the Voting Rights Act of 1965, which was enacted by Congress under § 2 of the Fifteenth Amendment, as a model of "congruent and proportional” legislation). But see City of Rome v. United States, 446 U.S. 156, 176-77, 100 S.Ct. 1548, 64 L.Ed.2d 119 (1980) (suggesting legislative enactments under Congress’s § 2 authority need only be "rationally” related to “attacking the perpetuation of earlier, purposeful racial discrimination”).
. To be sure, Congress may strike at discriminatory effects with its § 2 authority as a means of deterring or remedying historic patterns of intentional state discrimination in the denial of the vote. See, e.g., City of Rome, 446 U.S. at 177, 100 S.Ct. 1548 (“Congress could rationally have concluded that, because electoral changes by jurisdictions with a demonstrable history of intentional racial discrimination in voting create the risk of purposeful discrimination, it was proper to prohibit changes that have a discriminatory impact.”). This is of no moment here, however, because the denial of the vote to the territories, regardless of the disparate effects it may have, is not an intentional denial of the vote by the states, and therefore may not be deterred or remedied by Congress under § 2.
. This differs from the situation where a U.S. citizen is actually residing in the state, but is denied the right to vote due to a durational residency requirement. In this latter instance, the Fourteenth Amendment's equal protection guarantee is offended if the period is significant because state residents are being treated differently in their access to the ballot box without a compelling state interest for the disparate treatment. See Dunn v. Blumstein, 405 U.S. 330, 336-37, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972). Therefore, Congress may remedy this constitutional violation through its authority under § 5. See Oregon v. Mitchell, 400 U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970).
. Significantly, at the time the Constitution was drafted, the Continental Congress in New York was in control of the Northwest Territories. See generally Denis P. Duffey, Note, The Northwest Ordinance as a Constitutional Document, 95 Colum. L.Rev. 929, 929, 934-40 (1995). Yet, the Framers did not provide this territory with representation to the new federal government. This, I believe, suggests that the exclusion of territorial lands generally from the electoral college was not simply a historical oversight, but rather a conscious product of the constitutional design.
.For the same reasons that I believe Judge Leval's proposal would exceed Congress's authority under the Commerce Clause and the enforcement clauses of the Fourteenth and Fifteenth Amendments, UOCAVA's directive to the states to extend the franchise in federal elections to non-resident U.S. citizens living overseas, see 42 U.S.C. §§ 1973ff-l, 1973ff-6(5)(C), appears constitutionally infirm. While Congress's authority under the Spending Clause might support UOCAVA’s requirement that the states accept the votes of nonresident U.S. citizens living abroad, it does not appear to me that, at present, state adherence to this requirement is conditioned on the acceptance of federal monies.
*135It is possible, however, that those provisions of UOCAVA governing military voting, see 42 U.S.C. § 1973ff — 1(1) & (2), may well be a "necessary and proper" exercise of Congress’s authority to provide for an army and navy, see U.S. Const, art. I, § 8, els. 12-14, 18, by ensuring that military personnel are not disenfranchised by virtue of their "active duty” service away from their "place of residence,” see 42 U.S.C. § 1973ff-6(l)(A).
. In Igartua De La Rosa v. United States, 32 F.3d 8, 10 n. 1 (1995) (per curiam), the plaintiffs, who were U.S. citizens residing in Puer-to Rico, argued that their right to vote in the presidential election is secured by Article 25 of the International Covenant on Civil and Political Rights, 6 I.L.M. 368 (1967), which the United States has ratified. Article 25 provides in pertinent part:
Every citizen shall have the right and the opportunity, ... without unreasonable restriction[ ] ... to vote ... at genuine periodic elections which shall be universal and equal suffrage....
Presently, Article 25 is not self-executing, see Cong. Rec. S4784 (daily ed. Apr. 2, 1992),
*136and therefore cannot be privately enforced. See Igartua De La Rosa, 32 F.3d at 10 n. 1.
Assuming for the sake of discussion that the voting status of the territories does violate Article 25, the question arises whether, in order to comply with our treaty obligations under Article 25, Congress could implement the Pro Rata Proposal under the Treaty Clause of Article II, § 2. I believe the answer is plainly “no.” While the scope of Congress's authority under the Treaty Clause is separate and independent of its other enumerated powers, see, e.g., Missouri v. Holland, 252 U.S. 416, 433-34, 40 S.Ct. 382, 64 L.Ed. 641 (1920) (Holmes, J.), it (like Congress's spending power) cannot be used to alter the structural relationships enshrined in the Constitution, something the Pro Rata Proposal would plainly do. See U.S. Const. art. VI (providing that the Constitution is the “Supreme Law of the Land”); Reid v. Covert, 354 U.S. 1, 16-17, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1956) (plurality opinion); Igartua De La Rosa, 32 F.3d at 10 n. 1.
. Notably, the D.C. Circuit has held that the House of Representatives’ may permit the territorial delegates to the House limited voting authority. See Michel v. Anderson, 14 F.3d 623, 632 (D.C.Cir.1994). But see generally Jamin B. Raskin, Is There a Constitutional Right to Vote and Be Represented?: The Case of the District of Columbia, 48 Am. U.L.Rev. 589, 592 (1999) (arguing that the "Constitution fully protects the right to vote and be represented in national government for every community of American citizens taxed, drafted, and governed by our institutions").
. This view was also expressed by the First Circuit in Igartua De La Rosa, 32 F.3d at 10:
The only jurisdiction, not a state, which participates in the presidential election is the District of Columbia, which obtained that right through the twenty-third amendment to the Constitution.... Only a similar constitutional amendment or a grant of statehood to Puerto Rico, therefore, can provide appellants the right to vote in the presidential election which they seek.