On April 13, the Attorneys General of 20 Republican-led states wrote a letter to President Biden, the Speaker of the House and the Majority and Minority Leaders of the Senate informing them that if the pending Washington DC Admission Act (H.R.51 and S.51) is passed and signed, these “legal officers” will challenge the statute in court on grounds that it is unconstitutional and “bad policy.”
As a legal document, the AGs letter is one of the silliest creations I have ever seen. Here’s why.
- Courts don’t have jurisdiction to decide whether a statute is “bad policy.” Policy (good, bad or otherwise) is the purview of the Executive and Legislative branches of government. You would think that these “legal officers” would understand that most fundamental principle of American jurisprudence.
- A simple summary of the AGs’ arguments goes something like this: a. The Constitution granting Congress “exclusive authority” over DC means that authority cannot be delegated. In other words, “exclusive” really means “permanent.”
Oops. The dictionary does not square with that idea. “Exclusive” does not mean “permanent.” There is also a problem that the Supreme Court has in effect ruled otherwise. A few quotes from District Of Columbia V. John R. Thompson Co., Inc., 346 U.S. 100 (1953):
The power of Congress to grant self-government to the District of Columbia under Art. I, § 8, cl. 17 of the Constitution would seem to be as great as its authority to do so in the case of territories.
The power of Congress over the District of Columbia relates not only to ‘national power’ but to ‘all the powers of legislation which may be exercised by a state in dealing with its affairs’. [citations omitted] There is no reason why a state, if it so chooses, may not fashion its basic law so as to grant home rule or self-government to its municipal corporations.
A municipal corporation, in the exercise of all of its duties, including those most strictly local or internal, is but a department of the State. The legislature may give it all the powers such a being is capable of receiving, making it a miniature State within its locality.
3. The “exclusive authority” language also means that the Constitution’s text providing for admission of new states simply does not apply to DC because … the AGs said so. They gave no other reason, and none is apparent.
4. The Constitution says DC may not exceed “ten Miles square,” but that actually means the capital District may not be reduced below that size.
Sorry, but the District of Columbia is only 68 square miles now. Clearly, it can be reduced below “ten Miles square”
Virginia asked for the land in what is now Alexandria to be returned from its original ceding of land for the capital and this was done (with Congress approval, of course). It follows that both the natural meaning of the original text and the history of Congressional action indicate that the size of the District is not immutable, no matter how much the AGs might wish it were otherwise.
5. The federal presence in DC consists of just a “few federal buildings and surrounding parks and it self-evidently cannot have been the Framers’ intent to permit the District to be so reduced.
In fact, the boundaries of the Capital District as set out in HR 51 occupy some 12 pages of legislative text setting out the capital district boundaries street by street, to be confirmed by a metes-and-bounds survey. Quite a bit more than a “few federal buildings” are encompassed in that space. We are talking about the entire federal government for the United States in the present time, not it’s condition in 1787. Perhaps the AGs reference to a “few federal buildings” simply reflects their ignorance regarding the scale of , or merely their contempt for, the federal government.
6. Adoption of the Twenty-third Amendment, giving Electoral College votes to DC, would been unnecessary if creating a new state were possible, or less difficult, so since the Twenty-third was adopted, it follows that statehood is forbidden.
This is apparently intended to say that Congress could have made DC a state but chose not to do so. Instead, it was easier to give DC some Electoral College votes, while still denying it voting representation in Congress. No doubt that was the easier course. But that says nothing about whether Congress had the authority to do more.
7. Statehood will create all manner of “practical problems” involving “utilities and the provision of basicservices”
Hoo boy, that’s good one. Can you imagine that something as complex as providing electricity to federal buildings, something that happens routinely every single day now, would befuddle the government of the “greatest nation on earth” in dealing with the new state? The Republican AGs would fail any respectable law school exam with that argument. Oh, and recall how Texas failed to provide electricity during the recent storm. Based on the Republican AGs argument, Texas should it forfeit its status as a state and return to territorial status.
Beyond the issue of delegation, the AGs argue that,
“the Constitution’s provision of exclusive authority over the District of Columbia to the United States Congress cannot be wiped away simply by ordinary legislation. Rather, the only lawful way to provide statehood to the District of Columbia is to amend the Constitution.”
The operative language in Article I, section 8, clause 17 of the Constitution says, “To exercise exclusive Legislation in all Cases whatsoever, over such District….”
The AGs see Clause 17 as a self-evident permanent mandate to rule the territory ceded as the capital district rather than a grant of authority to be exercised through “exclusive Legislation” that can, among other things legislation can do, delegate control to local authorities consistent with Congress’ correlative authority to admit new states under Article IV. In the AGs’ view, Clause 17 is not merely enabling; it overrides Article IV, section 3, clause 1 of the Constitution which permits the addition of new states to the Union through Congressional action:
New states may be admitted by the Congress into this union; but no new states shall be formed or erected within the jurisdiction of any other state; nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned as well as of the Congress.
The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular state.
Not one word of Article IV-3-1 directly or by reasonable implication has anything to do with whether DC can be made a state by legislation because none of the constraints in the text has any application to the current state of the District’s physical relation to surrounding states. The Republican view that the conclusion is otherwise is not based on facts or evidence, just an assumption that what they prefer is how things are or should be.
Finally, the AGs get to the heart of the matter:
[HR 51’s] enactment would be antithetical to our representative democratic republic, and it wouldconstitute an unprecedented aggrandizement of an elite ruling class with unparalleled power and federalaccess compared to the existing fifty states in the Union.
That word salad looks like something taken from a Donald Trump stump speech back in the day. This is not a position grounded in the Constitution, and no evidence is offered in support of the claim that granting statehood to DC would undermine the “representative democratic republic,” that is the United States.
What in the world are the AGs thinking? Granting the benefits (and obligations) of statehood to an area representing 68 square miles out of the total 3.797 million square miles of the United States (or .0018 percent) will bring down the “representative democratic republic?” Can’t wait to see that presented in court.
The District of Columbia, according to the Republican AGs would be a “super-state that would have primacy over all others.” The AGs seem to have confused the introduction of the Declaration of Independence (”We hold these truths to be self-evident”) with their Trumpian version of reality. A super-state!? An elite ruling class!?
The AGs next “argument” was put in a footnote, fittingly:
[the legislation] does not address the potential conflict with the requirements that “no new State shall beformed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.” U.S. Const. art. IV, § 3.
This beyond incoherent. The statute does not take land from other states; it reorganizes the existing land known as the District of Columbia.
Finally, I know I’m skipping some crazy stuff, the AGs object to the provisions granting liberal voting rights to DC residents that may be more voter-friendly than some of the restrictive regimes favored in Republican-dominated states. So what? Some states have better voting laws than others. Why should the District of Columbia be deprived of the opportunity to have the most vote-friendly system?
At the root of this nonsense is likely an animus against a community with a majority of Black and Brown citizens that tends to vote for Democrats. It is not hard to imagine that if the vast majority of DC residents were white and voted Republican, the Republican AGs would have a different view. No doubt some people with balk at the suggestion that the Republican AGs determination to deny statehood to DC is race-based. If they are right, they should be able to produce better arguments than the sorry stuff of the AGs’ letter.
We have good reason to believe that the Republicans in the Senate will defeat the DC Statehood legislation. Democrats everywhere should take note and understand that the only way real progress is going to be made in the United States is by removing the obstructionist/insurrectionist party from political power.