51st state? Despite House passage, DC statehood bill faces many obstacles
WASHINGTON (SBG) — As members of Congress debate the philosophical and constitutional merits of turning the District of Columbia into the nation’s 51st state, lawmakers on both sides maintain their opponents are motivated by one fundamental political concern: the creation of two new, presumably Democratic Senate seats.
The House passed legislation on a strict party-line vote Thursday to grant statehood to Washington, D.C., while preserving a small sliver of land as the capital of the federal government. However, even if the bill survives a divided Senate, which experts say is unlikely, potential legal challenges await.
“This is about democracy,” Senate Majority Leader Chuck Schumer, D-N.Y., said after the House vote. “It’s about self-government. It’s about voting rights.”
H.R. 51
The legislation, H.R. 51, would create “Washington, Douglass Commonwealth,” consisting of all current District of Columbia territory except federal buildings and monuments, which would remain the Capital and the seat of the federal government under federal authority.
The bill would also expedite consideration of a resolution to repeal the 23rd Amendment, which granted three electoral votes to “the District constituting the seat of Government of the United States.” A Statehood Transition Commission would be convened to advise on the transition of authority to the new commonwealth’s government.
“The Democrats’ D.C. statehood scheme is about two things: consolidating power and enacting radical policies,” said House Minority Leader Kevin McCarthy, R-Calif. “The American people see right through this blatant power grab.”
The U.S. Constitution established the seat of government as a District under congressional authority, as the founders argued no state should hold power over the capital of the federal government. The District of Columbia was created by transferring some land from Maryland and Virginia to federal control, though the 37 square miles taken from Virginia were given back in the 1840s.
The 23rd Amendment gave the District electoral votes, and a 1973 law reestablished a local government, but District laws are still subject to congressional review. The District has one House delegate who can vote in committees but not on the House floor, and it has no Senate representation.
POLITICAL HURDLES
Eleanor Holmes Norton, the District’s current House delegate, has been pushing statehood in Congress for nearly 30 years, but momentum has grown among Democrats in recent years. Proponents say the District’s 700,000 residents, nearly half of whom are Black, deserve full representation in Congress and the independence of self-government afforded to states.
“There are fundamental issues of fairness,” said Howard Schweber, an expert on constitutional law and judicial politics at the University of Wisconsin-Madison, though he added, “The current vote is very much taking place in the current political climate and context.”
House Democrats advanced a similar bill last year, but it faltered in a Republican-controlled Senate. With Democrats holding a narrow majority in the Senate, the legislation is likely to eventually get consideration in the upper chamber, but chances of success are still slim.
Unless Democrats change Senate rules, 60 votes would be required to overcome a filibuster, and it is unlikely any Republicans will support statehood, let alone the 10 necessary for cloture. That is why House Democrats are stepping up pressure on their Senate colleagues to eliminate the legislative filibuster, but a handful of moderates remain adamantly opposed.
In an official statement of support for the bill Tuesday, the White House declared the taxation without representation and denial of self-governance to the District’s 700,000 residents to be “an affront to the democratic values on which our Nation was founded.” The administration asserted D.C. statehood would make the U.S. “stronger and more just.”
However, Republicans warn statehood would merely make the U.S. more Democratic. The new commonwealth’s senators and voting House member would be determined by open elections, but Democrats are almost certain to win all three for the foreseeable future.
Democrats have held the District’s nonvoting delegate seat in the House since it was reestablished in 1971, and its “shadow senator” slots have been filled by Democrats since the city first elected them in 1990. A Republican has not been elected mayor since the office was established in 1974, and the District has backed Democratic presidential candidates in every election since it was granted electoral votes in 1961.
“We’re not talking about a two-party state here,” said Roger Pilon, a constitutional studies scholar at the Cato Institute and former Reagan administration official.
Statehood movements have often had partisan dimensions in the past, though, and others say that factor alone is not reason enough to deny District residents representation in Congress.
“Notoriously, the Dakotas, Wyoming, and Montana were added as states in order to secure a Republican majority in the Senate in the 1890s,” Schweber said.
‘RACIST TRASH’
Republicans have outlined several arguments against granting the District statehood, but Democrats insist their points are factually or logically flawed and driven by partisanship or, in some cases, outright racism. Geographically, Douglass Commonwealth would be the smallest state by far, but it would still have a larger population than Wyoming and Vermont.
“Eager to solidify their narrow control in Congress to force through their radical agenda, Democrats are happy to disregard the wisdom and intent of our Founding Fathers,” Rep Jody Hice, R-Ga., wrote in a Fox News op-ed Thursday.
In a memo released Wednesday, House Minority Whip Rep. Steve Scalise, R-La., cited a 2004 Government Accountability Office report on concerns about D.C.’s budget and management. The city currently has a budget surplus and a healthy rainy-day fund, though. Scalise also pointed to complaints about crime and corruption, but Democrats noted D.C.’s recent record on those issues is no worse than parts of Louisiana.
In a House floor speech Thursday, Rep. Mondaire Jones, D-N.Y., dismissed Republican objections as “racist trash,” though he later agreed to withdraw the remarks.
Although the political questions involved in the D.C. statehood debate are fairly clear-cut, the legal ones are not. Constitutional law experts are divided over whether D.C. can be made a state by statute, and Republican attorneys general have already promised to “use every legal tool at our disposal” to fight back if congressional Democrats try to do it.
“There are three main arguments: the first, Congress doesn’t have the power, second, you’d need the consent of Maryland, and third, you’d need to repeal the 23rd Amendment,” Pilon said.
CONSTITUTIONAL DEBATE
Some legal scholars contend D.C.’s status as a federal district is enshrined by Article I of the Constitution, and changing that would require a constitutional amendment. Others say the Constitution makes no explicit provision against the areas of D.C. outside the seat of government becoming a state.
Previous Republican and Democratic administrations agreed an amendment would be necessary until 2009, and Democrats in Congress pursued that route in the past. An amendment requires ratification by three-fourths of states, though, and that is politically implausible today.
Congress approved a proposed constitutional amendment in 1978 to grant the District representation in Congress without making it a state, but only 16 states ratified the amendment before a time limit to enact it expired. Democrats believe leaving the Capital in place as a smaller district under federal authority would sidestep constitutional concerns.
“What’s changed?” Pilon said. “What’s changed is the Democrats care much less about the Constitution today than they did in those rather recent days.”
New states have been carved from existing states or from federal land that previously belonged to other states in the past. However, D.C., which was separated from Maryland and Virginia with the expectation it would become the seat of the federal government, presents a somewhat unique case.
Since Maryland did not and likely would not have ceded the land for the purpose of creating a new state, Pilon expects the state would need to grant some form of approval. Gregory Magarian, a law professor at Washington University in St. Louis, acknowledged making D.C. a state might amount to a “bait-and-switch” by Congress, but he questioned whether Maryland still has a valid claim to land it gave up over 200 years ago.
“There’s nothing in the Constitution that prevents Congress from essentially pulling that bait-and-switch,” Magarian said.
Repealing the 23rd Amendment could also be more complicated than supporters of statehood have recognized, since it would require ratification of a new amendment. Given that leaving the existing amendment in place would hypothetically put three electoral votes in the hands of the small population of the shrunken Capital, Magarian predicted there would be strong bipartisan motivation to rectify the situation if the statehood bill passed.
“That would basically hold everyone’s feet to the fire,” he said.
There are other concerns, as well. In a recent Washington Post op-ed, Howard University professor Robinson Woodward-Burns cautioned H.R. 51 could be struck down because it does not require the District to convene a specially elected convention to draft a constitution before admitting it as a state, as all other states have done. It would instead use a constitution drafted by lawyers appointed by the mayor in 2016.
According to Schweber, the legal issues involved are complicated and, in many cases, untested in the federal courts. If Democrats changed Senate rules and passed the bill, litigation would likely make its way to the Supreme Court, where the outcome is uncertain.
“The legal problems would need to be worked out very quickly,” he said.
DIVIDED ELECTORATE
Nearly 90% of D.C. residents backed statehood in a 2016 referendum, but public opinion nationwide appears to be much less enthusiastic. A Scott Rasmussen national survey last month found 35% of voters back statehood—including only 52% of Democrats—while 41% are opposed.
Another poll conducted earlier this year by SurveyMonkey showed a slight plurality of voters in favor of D.C. statehood, with 49% supporting it and 45% opposed. In a February survey conducted by Data for Progress on behalf of a pro-statehood group, 54% of voters said they supported making the District a state.
As Democrats press for representation for the District’s residents, some Republicans have offered a counterproposal they claim would provide D.C. with a fully empowered voice in Congress: returning the land to Maryland. Amid similar complaints about voter disenfranchisement, the portions of D.C. west of the Potomac River were ceded back to Virginia in 1847.
However, the 1840s retrocession effort was backed by both the Virginia General Assembly and residents of the land being returned to the state. There is no evidence the Maryland Legislature or District residents would favor a similar solution now.
"The people of D.C. have made it very clear they want self-determination,” Sen. Chris Van Hollen, D-Md., told reporters Wednesday. “This is supposed to be a democracy."
