Comment: Constitution doesn’t back D.C. statehood’s opponents

By Erwin Chemerinsky / Special To The Washington Post

In April, a Wall Street Journal editorial described the issue of Washington, D.C., statehood as a “dilemma” and the current push to make it happen as an unconstitutional “gambit.” Washington Post columnist George Will zeroed in on the 23rd Amendment as the “impediment” to D.C. statehood. Texas’s Republican Attorney General Ken Paxton, who signed a letter to President Biden along with 21 other state attorneys general opposing D.C. statehood, said: “If Washington D.C. unlawfully becomes a state, which is what many Democrats are proposing now, it will not join the others in equal standing. Rather, it will create a superstate that has privilege and primacy over all others.” His reasoning was, as we say in the law, mere dicta; color commentary rather than legal argument.

With the issue being heard Tuesday by the Senate Committee on Homeland Security and Governmental Affairs, it is likely some of the same objections will have been raised. But they’re wrong. Creating a 51st state from what is now the District of Columbia is constitutionally permissible and only requires Congress to act. Those who say otherwise are making a political or, at best, a logistics argument, not a legal one.

The admissions clause in Article IV, Section 3, of the Constitution grants Congress the authority to admit states into the union, just as it has done with the 37 states that followed the original 13 colonies. Never has a state’s admission to the union required a constitutional amendment.

Some suggest that application of the admissions clause in this instance would require Maryland’s acquiescence, or that as an alternative to statehood, most of D.C. should be returned to Maryland. But Maryland relinquished authority over D.C.’s territory when the district was created from parts of Maryland and Virginia in the 1790s. Maryland’s legislature passed an act “to cede to the congress of the United States any district in this state not exceeding ten miles square, which the congress may fix upon and accept for the seat of government of the United States.” Though the original purpose was to provide land for the district, by ceding the land, Maryland gave Congress the power to dispose of it.

Yes, the Constitution requires that there be a federal district. But the proposed legislation to make D.C. the 51st state — H.R. 51, the Washington, D.C. Admission Act, which has passed in the House of Representatives — addresses this: The bill maintains the existence of the neutral federal district that the Founders created and shrinks it. This geographic reduction has been done before, as the area that now contains Alexandria, Va., was ceded to Washington, D.C., before being “retroceded” back to Virginia in the 1840s. The new federal district would encompass the White House, the Capitol, the Supreme Court and other federal buildings. This seems closer to the Founders’ vision. Practically no one would reside in this new area, which would exist solely to house the governing apparatus and important monuments, rather than continue as it currently exists, a major American city with its own unique politics, commerce, art and traditions.

In the Federalist No. 43, James Madison argued that in a federal district, the rights of residents would be protected by “a municipal legislature for local purposes, derived from their own suffrages, will of course be allowed them.” But while Washingtonians indeed elect their municipal government, its power is circumscribed by congressional oversight and by its lack of powers possessed by the states. On Jan. 6, for instance, D.C. Mayor Muriel E. Bowser could not activate D.C. National Guard units to quell the U.S. Capitol riot — as a state governor could have — without Defense Department approval.

The 23rd Amendment, ratified in 1961, grants three electoral college votes to “the District constituting the seat of Government,” allowing D.C. residents to have a say in presidential elections. Statehood opponents say the amendment must be repealed before part of the district can become a state, but not only does it defy sense to strip electoral college representation from D.C.’s citizens to achieve statehood, it’s also a false choice.

Section 2 of the amendment gives Congress the “power to enforce” it “by appropriate legislation.” Congress used that power to create enabling legislation defining the District of Columbia as a “state” for the purposes of a presidential election. H.R. 51 repeals that, removing the mechanism to distribute those electoral votes.

Even if there isn’t enough support among the states to ratify repeal of the 23rd Amendment, then Congress has the power to contract the district’s boundaries, take away the district’s electors and to create a new state that, by definition, would have its own electors and members of Congress. Consider, too, that the 23rd Amendment restricts the number of D.C.’s electors to no more “than the least populous State.” So, in the future, if D.C.’s population roughly doubled to that of the current size of Hawaii, it would still only have three electoral votes, even though Hawaii, the last state admitted to the union, has four; taxation without representation if there ever was.

In response to those who say the 23rd Amendment is worded such that it must be repealed before Congress can dispense with its electors, there’s an alternative approach that was recently floated by the White House. A new statute could preserve the existence of D.C.’s electors but mandate they vote in favor of the presidential ticket that receives the most electoral college votes or the winner of the national popular vote, effectively making these votes irrelevant.

Americans in D.C. should be able to govern themselves, as all others in this country do, and have the same representation in Congress. Congress fashioned the District of Columbia as a neutral federal district because the Founders wanted to protect themselves: In 1783, when Philadelphia remained the nation’s capital, members of Pennsylvania’s state militias marched on the Confederation Congress to demand back pay. Pennsylvania’s chief executive refused Alexander Hamilton’s request to have loyal militia members confront mutineers, leaving the fledgling government helpless. Years later, Hamilton negotiated “removal of the seat of government to the Patowmac,” as Thomas Jefferson described it (and as was more recently recalled in the hit Broadway song, “The Room Where it Happens”), paving the way for a relocated capital city over which Congress exercised control.

The Founders wanted a federal district to serve the federal government. That’s why Article I, Section 8, gives Congress the power to “exercise exclusive Legislation in all Cases whatsoever” over the district. Under this structure, Congress maintains its grip over the residents — the citizens — of Washington, D.C.: It controls the budget and can block local laws. But the Founders didn’t conceive of a district with close to 700,000 residents. Nor were they likely to find it equitable that two states with fewer people, Wyoming and Vermont, would be represented in Congress while the district’s body politic was not.

And statehood opponents give away their game when they try to tie political arguments to founding principles. The Journal’s editorial board offered that many district residents “hold influence over the federal government as employees and contractors or in other positions, and in the Founding era proximity to the seat of power was itself considered a form of representation”; an unserious argument no one would make to deny congressional representation to the residents of Northern Virginia.

There is no constitutional problem with D.C. statehood. And it is long overdue. D.C. residents pay federal taxes and serve in our military while being denied the representation of two senators and a voting representative in the House. Certainly, there are political arguments against statehood — chiefly that Republicans don’t want what would almost surely be the election of three additional congressional Democrats — and those against statehood can make that case. But their legal arguments don’t hold up.

Erwin Chemerinsky is dean and Jesse H. Choper distinguished professor at the University of California, Berkeley School of Law.