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Friday, October 02, 2020

DC Statehood

There are several interesting constitutional puzzles involved in making the District of Columbia a state. The first is whether a state admission decision by Congress is justiciable. No court has ever questioned a decision to admit a state, and the dubious admission of West Virginia (formerly part of Virginia) in 1863 seems to suggest that statehood decisions are political questions.

The second problem flows from the 23rd Amendment. The amendment states plainly that the seat of government shall have three electoral votes (the same number as the smallest state). This implies first that that there must be some federal District of Columbia inside the new state of Washington DC. The other implication is that this "rotten borough" would still have three electoral votes. How would they be allocated?

The DC statehood bill passed earlier this year by the House of Representatives tries to answer the second question, though not very well. The bill defines the federal district (called the "Capital") as basically encompassing the major federal buildings around Pennsylvania Avenue. They then have a section creating an expedited procedure for Congress to consider a constitutional amendment that would repeal the 23rd Amendment. That's nice, but there's no way for a statute to assure than an Article Five amendment will be ratified.

Suppose DC becomes a state and the 23rd Amendment remains. One solution is that Congress could say that the "Capital" electors must always vote for the person who won a majority of all of the other electoral votes. Or the winner of the national popular vote. Either of these is a decent workaround, though there remains the possibility that a given Congress and President could change that law and just award the Capital electors to the President and (in an extremely close election) tip the outcome. 

UPDATE: Another question is what should you do with the DC Circuit if DC becomes a state.

Posted by Gerard Magliocca on October 2, 2020 at 09:27 AM | Permalink


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DC Statehood

Posted by: pg slot | Jan 12, 2021 10:11:34 PM

I love all the confident talk (some of it iliterally described as what an anti-colonialiist must do) about what how we must dictate to Puerto Rico what they must do. The problem with colonialism was never that European powers dastardly willingness to accept colonies they recieved as war settlement into their states as (truly) equal citizens if they made a democratic choice to do so because they gained from a war. Maybe some variety of pacifisct thinks that but it's got nothing to do with anticolonialism.

The moral evil of colonialism was the imposition of the colonial power's will on the native people without their informed consent and equal representation (and the resulting horrific treatment). No one would be complaining if the French had been granted India as a war concession from the British in some counterfactual Napoleonic victory if the French had immediately turned around and offered the Indians the chance to have a free and fair vote to either join the empire on equal terms with native French or to become independent whatever the choice was.

So how about we really let them pick this time and not repeat the sins of the past.

Posted by: Peter Gerdes | Oct 6, 2020 2:02:34 PM

The District of Columbia originally included what is now Alexandria, Virginia. That land was returned to Virginia and that is what should happen to the rest of DC if anything at all is to be done with it - that is, the land should be returned to Maryland. All except for the land under the major federal buildings, which will remain the "Capital" of the United States and, under the 23rd Amendment, will be entitled to three electoral votes.

Posted by: Douglas Levene | Oct 4, 2020 12:36:02 PM


One can accomplish the goal (i.e. governmental representation) without taking the unnecessarily provocative step of creating two reliable Democratic senators.

There are other avenues by which the population of D.C. can gain representation in congress, and if that is their actual goal, it makes no sense for them or anyone who claims to care about that issue to reject those avenues.

Posted by: thegreatdisappointment | Oct 4, 2020 3:30:19 AM

Who knew people who were traded away like pawns on an imperial chessboard, occupied militarily, and governed as a second-class territory for over 100 years would be hesitant to choose independence?

It's not unlike saying, "I'd be glad to let all of these prisoners go, but they won't open their cell doors."

Posted by: thegreatdisappointment | Oct 4, 2020 3:27:36 AM

I'm all in favor of independence for Puerto Rico but the inhabitants of that island keep voting against it.

Posted by: Douglas Levene | Oct 3, 2020 8:29:14 PM

In reply ...

I think there is more than one "argument" for D.C. statehood. Yes, the primary argument traditionally was a sort of "no taxation without representation" type argument.

But, that isn't the ONLY argument out there. And, discussions involve citation of past cases -- one or more thinly populated states, e.g., clearly were in part formed to benefit a certain party in the l9th Century.

"Democratic representation is either based on identity group solidarity or identity-blind vote counting. The two ideas are in logical tension."

Again, D.C. statehood might promote more than one thing. WHILE giving D.C. residents representation in Congress, it can also do something else. I personally, e.g., am wary about making it a state given the current set-up of the Senate. But, that additional reason arguably helps to deal with the inequalities in place. To the degree, one thinks there are, at least.

Posted by: Joe | Oct 3, 2020 6:40:38 PM

Here stoppeth the buck has a good point.

If we're going to create a state in so haphazard a way, it seems logically simply to attach it to the only other state created in a similar way: West Virginia.

This will appease the left by not simply folding a solid left constituency into an already solidly blue state (let's be honest: you don't want them to have representation in congress, you want two reliably blue senators).

It'll also appease the right by not, effectively, creating two Democratic senators by fiat.

Lastly, nobody who opposes colonialism seriously could support the US giving statehood to Puerto Rico. There is simply no way the U.S. should be able to acquire yet more territory from imperial wars.

Posted by: thegreatdisappointment | Oct 3, 2020 5:39:31 PM

Joe contended: "In effect, the two [DC] senators will not merely represent the people of the state. They will virtually, so to speak, represent other people of color & urban dwellers that are arguably not equitable represented under the current system."

The argument for DC statehood is: DC residents cannot vote for representatives to Congress, therefore they have no representation there. Correct? How then it be argued that the DC senators would represent "people of color & urban dwellers" in other states that never voted for the DC senators? Wouldn't this violate the no-vote-no-representation principle?

Democratic representation is either based on identity group solidarity or identity-blind vote counting. The two ideas are in logical tension.

Posted by: rethink | Oct 3, 2020 4:03:53 PM

I think it would be promising to add the residential section of D.C. to an existing state, but there is the issue of consent -- from what I can tell, Maryland or Virginia do not want that. And, the population of D.C. seems not to either -- they appear to favor statehood.

I think too that statehood fits into the current nature of the Senate, something some have pointed out. In effect, the two senators will not merely represent the people of the state. They will virtually, so to speak, represent other people of color & urban dwellers that are arguably not equitable represented under the current system.

This is a wider application of what is usually seen in mere partisan ways -- that is that D.C. statehood would seem to favor Democrats. This is less apparent for Puerto Rico, which had Republican leadership over the years. Constitutionally statehood might be easier there, btw, but there might be more practical issues.

As to the D.C. Circuit, as is, it is significantly concerned with federal statutory matters and the like. To the degree it is concerned with local concerns, it is questionable that it would be warranted to have a separate circuit court to handle it with statehood. It might logically be part of the Fourth Circuit for that purpose.

Posted by: Joe | Oct 3, 2020 2:00:03 PM

since states don't have to be contiguous (Michigan), why not make D.C. part of West Virginia? that is, just add it's population to W.Virginia for house-seat purposes

That way it's neither part of Virginia (like republicans want) or independent with it's own senators (like democrats want)

Posted by: Here Stoppeth the Buck | Oct 3, 2020 8:05:42 AM

I would consider whether the original constitution mandates the existence of some such district. Here is what the text says: "The Congress shall have Power.....to exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States,..."

It seems like this does not actually mandate such a district to exist, and if so I would see it as unlikely that the 23rd amendment should be interpreted to mandate it. Rather I would read it as saying that if such a district exists, then it should appoint electors. Of course, if Congress does want a small district containing the federal buildings, then there is a problem.

I think the best solution is an amendment granting representation in Congress for DC and possibly other territories. (So Puetro Rico can have representation without deciding they want to become a state.)

Posted by: Jr | Oct 3, 2020 6:19:23 AM

I'm not sure that presuppositions mandate anything. The 23rd amendment talks about a "District" that is the seat of government that has the number of electors to which it would be entitled "as if it were a State." If the seat of government should become a state, does that violate the 23rd Amendment, or simply eliminate a statutory structure that preexisted the 23rd Amendment and on which the 23rd Amendment acted? If the 23rd Amendment talked about apportioning electors relative to the number of a state's bald eagles, I don't think we would say that state action that causes the extinction of bald eagles violates the 23rd Amendment.

Posted by: Asher Steinberg | Oct 2, 2020 8:55:08 PM

The only conscionable action the US can take for Puerto Rico is to give it its independence with a 100 year security guarantee similar to Taiwan and and economic guarantee similar to Israel.

Anything less than that is colonialism. Colonialism is how we got Puerto Rico as a territory, after all.

Posted by: thegreatdisappointment | Oct 2, 2020 8:15:32 PM

Statehood for Puerto Rico is much simpler.

Posted by: Phil | Oct 2, 2020 7:40:27 PM

The cleanup Amendment (repealing the 23rd) should not be hard to pass or ratify. (And that is really saying something!)

Simple political reasoning: It will be a Democratic President that will someday sign the law making DC a state. Why would Republicans wish to allow Democrats (who would then be holding the White House) an extra 3 electoral votes (I'm assuming that the only bona fide residents of the capital area would be those living in the East Wing)? This seems silly.

The only reason to contest the 23rd's repeal would be as a rearguard action to disrupt DC statehood or in the hope that courts might come in and void it. Hopefully once it's clear that that's not happening, opponents would stop caring a lot about the cleanup Amendment and would allow it to go through.

Posted by: Joey | Oct 2, 2020 3:58:26 PM

The proposed federal district contains the White House, so there is always at least one eligible voter resident in the district. Giving the incumbent party a 3 vote advantage in the electoral college seems no worse than other aspects of the electoral college.

Unless, as will happen in a sitcom episode airing before the next election, the President's spouse and 18-year-old kid vote for the challenger.

It looks like they are wisely excluding the Trump Hotel from the federal district.

When I lived in DC there was also a non-trivial homeless population in the federal district, who presumably would be eligible to vote there, but that may no longer be the case.

Posted by: arthur | Oct 2, 2020 1:26:28 PM

The solution is simply to return D.C. to Virginia/Maryland.

Posted by: thegreatdisappointment | Oct 2, 2020 12:01:03 PM

I think the workaround makes sense and those who support a national popular vote (at least as a small tiebreaker!) should like it too. But, it does underline the compromise 23A (some wanted a lot more) is a sort of makeweight and it is best to provide discretion for future events.

One thing that interests me if congressional control over the rump federal district and national security issues in general would provide some sort of special powers to the federal government to treat D.C. somehow differently than they might other states. I suppose parts of Maryland and Virginia already area affected by their closeness to D.C., but here we are talking about a whole state.

Posted by: Joe | Oct 2, 2020 10:05:49 AM

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