Tag Archives: 23rd Amendment

DC Statehood – Redux

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Politico apparently wants to put the knife into the DC statehood movement. It just published Your All-Purpose Wonk’s Guide to Why D.C. Statehood Is So Hard  https://politi.co/3ymTtVF where this appears:

Attorneys general ranging ideologically from Robert F. Kennedy to Ed Meese have weighed in on the same side of this argument: Because the federal district was created by the Constitution, only an amendment to the Constitution could turn it into a state; and only an amendment could grant D.C. votes in the House and Senate.

Ridiculous. If Constitution had flatly said “DC may be made a state by an act of Congress pursuant to its exclusive authority over the District,” there would be zero basis for arguing that a constitutional amendment was necessary. While the Constitution does not contain that precise language, there is no language that expressly bars the District from being converted into a state under that same exclusive legislative control the Constitution plainly did give Congress.

The Politico article continues:

The 23rd Amendment says “the district constituting the seat of government of the United States shall appoint” presidential electors in a manner requiring ultimate congressional approval. Under the statehood bill just passed, the new city of “Washington, Douglass Commonwealth” would get three electors, just like the other low-population states—but according to the 23rd Amendment, that tiny strip of land designated as the new “federal district” would also have three electoral votes.

This is illogical reasoning. If “ultimate congressional approval” is required for the new “tiny” federal enclave (author’s description, not mine), there is no reason Congress could not simply fix the problem, if it is one.

This is what the 23rd Amendment actually says:

Section 1

The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct:

A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment. [emphasis added]

Section 2

The Congress shall have power to enforce this article by appropriate legislation.

Not only is the power of Congress to address the issue of electoral vote for the seat of government plenary (unqualified, absolute), but the text of the amendment is unambiguous that the federal enclave would get three electoral votes. The Politico article sees this as an insuperable problem because “depending on how specifically the lines of this remnant are drawn, it’s possible that the only residents of that zone would be the First Family.”

But unless one has the view that no increase in total electoral college votes is possible, a position not supported by the Constitution, this is not a problem at all. True enough, the District’s electoral vote would be determined by the number of voting citizens living within the District’s boundaries, which would be a small number than other “states,” but so what? Over time it’s likely that more people would move to the District zone and the “problem” would recede. Why is this any different than changes in population in other “states,” that have the effect of increasing electoral votes for some states and reducing votes for others? Oh, and by the way, the pending legislation does not define the federal enclave so that the only residents are the First Family. But nice try.

The Politico author translates those people in the federal enclave into “more or less nobody.” Another article adds to the silliness with the argument that “the result is a potential nightmare scenario in which a federal district exists where “zombie” electoral votes could be cast on behalf of people camping out on the Mall overnight for partisan political advantage.” https://nym.ag/3or64Cs Is it possible that writers of these pieces do not understand how voter registration and voting work in this country? If it were possible to do as they speculate, would we not have seen massive temporary migrations of “campers” moving to key swing districts to vote there rather than, say, their actual place of domicile where the outcome is certain? Republicans in the wake of Trump’s thumping in 2020 have twisted themselves into knots even sailors can’t imagine, and no such fraudulent voting was uncovered. The zombies are not the Mall campers. You can take it from there.

Fortunately, that same article just  cited notes this:

Stephen Vladeck, a professor at the University of Texas School of Law who has studied the constitutional issues around this, said that even without repeal, the text of the amendment gives Congress the power to enforce it “by appropriate legislation.” This means that Congress could simply pass a bill by the normal legislative process to, for example, hand the district’s electoral votes to the winner of the national popular vote, absent a new amendment.

Bingo! We can stop worrying about how the electoral votes of the federal enclave will be directed because Congress has complete control of that outcome and can avoid all the insane scenarios dreamed up by opponents of DC statehood.

It’s surprising that the author of the Politico piece, a person with a hugely impressive curriculum vitae, https://bit.ly/3v1s2i7, would conclude his analysis with a smug dismissal that suggests, without analysis, that there is no constitutionally acceptable way to address the issues raised by the 23rdAmendment. Certainly, he is correct that there are politically fraught issues here. Republicans are dead set against allowing the District of Columbia to become a state, but their constitutional arguments are just a cover; their opposition is grounded in their fear of adding a likely Democratic state to the mix. Their resistance is about retaining political power and nothing more.

In thinking about this, we should keep in mind that the 23rd Amendment was adopted to fix a political problem that would cease to exist if DC were made a state and a federal enclave were created to preserve the plenary authority of Congress over the seat of the federal government. The 23rd was not adopted to bar statehood for DC. If it were intended for that purpose, it could have just said so. It didn’t ,and there is no reason in the Constitution to see it otherwise. Since the purpose of the 23rd Amendment can be satisfied another way, it should be the case that, given the express and indisputable plenary authority of Congress over the federal enclave, a legislative solution is feasible and acceptable. Where there is a will, there is usually a way.

Will DC Statehood Bring Down Our Representative Democratic Republic?

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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.

  1. 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.
  2. 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.