DC Statehood Bill has Deep Constitutional Problems
House Democrats are advancing a bill that would make the District of Columbia the nation’s 51st state. It’s been a priority of some in the Democratic caucus for years, in no small part because it would add two Democratic Senators, which could come in handy in today’s 50-50 Senate.
But as the Cato Institute’s Roger Pilon noted in testimony before the committee considering the statehood bill, if proponents really want to make DC a state, there’s no shortcut available: they will have to pass a constitutional amendment:
…it appears that this bill seeks to mimic the ordinary process through which states from time to time have been admitted to the Union from federal territories like the Northwest Territory or the Louisiana Purchase, pursuant to Article IV, Section 3 of the Constitution. If so, that is a problem, for the District of Columbia is not and never has been a “federal territory” in that sense. It is a unique, a sui generis entity, expressly provided for, not under Article IV but under Article I, Section 8, Clause 17 of the Constitution, the Enclave Clause, in clear and unmistakable contemplation of its becoming the seat of the new federal government, which it has been for well more than 200 years.
Pilon notes other legal and constitutional impediments to the bill, including what he says is the need to repeal the 23rd Amendment:
As the bill plainly contemplates, the 23rd Amendment, ratified in 1961, would need to be repealed. In relevant part, the 23rd Amendment provides that:
The District constituting the seat of government 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; … (emphasis added)
Clearly, those who wrote and ratified the 23rd Amendment envisioned the District as having a population of a certain size. In fact, the amendment compares the District to a state, granting it the number of presidential electors it would be entitled to “if it were a State,” which it is not. But under this bill, the “District” would become a tiny enclave where only a small number of voters would live, including the presidential family. But those voters, still empowered to select the three electors presently allotted by the amendment, would have vastly more powerful or effective votes than their fellow citizens across the country. Yet Congress can do nothing about that if the amendment is in place, for the amendment authorizes Congress to direct the manner in which the District appoints electors; it does not allow Congress to eliminate the District’s power to appoint those electors or to take away the District voters’ constitutional rights by mere statute.
Bottom line: it’s fine if proponents want DC to become a state. But they cannot ignore the constitutional issues involved to make it happen. If their case for statehood is sound and strong, then pass a constitutional amendment (and repeal another) to get it done right.